Agrawal Narendra Jwalaprasad,HUF, Jalgaon V. Income-tax Officer, Ward - 1(3), Jalgaon

ITA 107/PUN/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0186 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Transactions in derivatives
• Section: 68; 133(6); 274; 271B; 44AB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, PUNE SHRI PARTHA SARATHI CHAUDHURY, JM AND DR. DIPAK P. RIPOTE, AM ITA No. 107/PUN/2019 : A.Y. 2011-12 Agrawal N. Jwalaprasad HUF Prop. Of Pioneer Corporation 59 New Market Yard, Ajanta Road, MIDC, Jalgaon – 425 003 PAN; AABHA 7508 L Appellant Vs. The I.T.O. Ward 1(3), Jalgaon Respondent Appellant by : None Respondent by : Shri S.P. Walimbe Date of Hearing : 26-07-2022 Date of Pronouncement : 27-07-2022 ORDER PER PARTHA SARATHI CHAUDHURY, JM This appeal preferred by the assessee emanates from the order of the ld. CIT(A)-2, Nashik, dated 10-12-2018 for A.Y. 2011-12 as per the grounds of appeal on record. 2. The only grievance of the assessee as appearing in the grounds of appeal memo is the imposition of penalty by the A.O u/s 271B of the Income- tax Act, 1961 (hereinafter referred to as “the Act”) and as confirmed by the ld. CIT(A) of Rs. 1,50,000/- for failure to get the books of accounts audited as per section 44AB of the Act. 3. At the time of hearing none appeared for the assessee. There was no adjournment petition filed before us. Notices were served at the given address. Hence case was heard recording submissions of the ld. D.R and as per the documents/materials available on record. 4. Brief facts in this case are that during the assessment proceedings information was called for u/s 133(6) of the Act from National Multi Commodity Exchange of India Ltd (NMCEIL). As per the information received from 2 ITA No. 107/PUN/2021 Agrawal N. Jwalaprasad HUF A.Y. 2011-12 NMCEIL the assessee entered commodity transaction and as per the statement of transaction furnished by the NMCEIL total turnover of the assessee during the F.Y. 2010-11 relevant to A.Y. 2011-12 was at Rs. 77,41,76,811/-. From the aforesaid transaction it is clear that the total turnover exceeds basic limit of Rs. 60 lakhs and as per the provision of the Act, the assessee was liable to get his accounts duly audited and furnished the audit report in form No. 3CB and 3CD within the prescribed time limit as per the provisions of sec. 44AB of the Act, but the assessee has failed to do so. Therefore, a show cause notice u/s 274 r.w.s. 271B of the Act was issued to the assessee which was duly served asking the assessee for compliance on 12-1-2017. The assessee neither attended nor submitted any compliance to the said show cause notice. Thereafter, another letter dated 30-05-2017 giving final opportunity of hearing was issued to the assessee for compliance and attendance on 07-06-2017. The assessee neither attended nor submitted any compliance regarding non- furnishing of audit report u/s 44AB of the Act. Inspite of all these opportunities given since the assessee failed to appear before the A.O., it was opined that it does not have any just and cogent reason for such statutory violation and hence penalty u/s 271B of the Act was levied. 5. Before the ld. CIT(A), the assessee had contended that for non- maintenance of the books of account, the A.O should have imposed penalty u/s 271A of the Act and therefore, it was not correct for the A.O to impose penalty u/s 271B of the Act. The ld. CIT(A) after considering the submissions of the assessee and the assessment order placed reliance on the decision of Bombay High Court in the case of Arjunkumar J. Muchhala Vs. CIT-8, in ITA No. 363 of 2015, order dated 24-08-2017 wherein it was held as follows: “Tribunal upheld addition made by assessing Officer u/s 68 – assessee raised an objection that he had not maintained books of account and, therefore, amount in question could not be added to his income u/s 68 – whether when assessee was doing business, then it was incumbent on him to maintain proper books of account and since he failed to do so, he be allowed to take advantage of his own wrong held, yes”. 3 ITA No. 107/PUN/2021 Agrawal N. Jwalaprasad HUF A.Y. 2011-12 6. We observe from the records and the orders of subordinate authorities that it is an undisputed fact that the commodity transactions entered into as per the statement of NMCEI it had exceeded basic limit of Rs. 60 lakhs and therefore, has attracted the provision of sec. 44AB of the Act requiring the assessee to get its accounts audited and filed books of accounts along with the audit report in the prescribed form 3CB and 3CD within the prescribed time limit and in this case, the assessee has failed to do so. These facts are not disputed anywhere in the records before us. When the statutory obligation has been provided that it has to be complied with by the assessee and in this case since as per sec. 44AB was not complied with, the A.O was correct in imposing penalty u/s 271B of the Act. Even the Hon’ble Bombay High Court in the case of Arjunkumar J. Muchhala (supra) has categorically spelled out that when assessee is doing the business, it was incumbent on him to maintain proper books of accounts and if he fails to do so, he cannot be allowed to take advantage of his own wrongs. We do not find any infirmity with the findings of the ld. CIT(A) which is hereby upheld. 7. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on 27 th day of July 2022. Sd/- sd/- (DR. DIPAK P. RIPOTE) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated, this 27 th day of July 2022 Ankam 4 ITA No. 107/PUN/2021 Agrawal N. Jwalaprasad HUF A.Y. 2011-12 Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT 2, Nasik 4. The D.R. ITAT A’ Bench, Pune. 5. Guard File BY ORDER, Sr. Private Secretary ITAT, Pune. /// TRUE COPY /// 5 ITA No. 107/PUN/2021 Agrawal N. Jwalaprasad HUF A.Y. 2011-12 Date 1 Draft dictated on 26-07-2022 Sr.PS 2 Draft placed before author 27-07-2022 Sr.PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS Sr.PS 6 Kept for pronouncement on 27-7=2-22 Sr.PS 7 Date of uploading of order 27-07-2022 Sr.PS 8 File sent to Bench Clerk 27-07-2022 Sr.PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order