SMT. LEELA DEVI BUMB, BIJAINAGAR V. INCOME TAX OFFICER, WARD-1, BEAWAR

ITA 1079/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8487 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Speculative transactions
• Section: 271B; 44AB

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 1078 & 1079/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2012-13 SMT. LEELA DEVI BUMB 117, SHITALA MATA MARKET, KUMHAR MOHALLA, BIJAINAGAR. CUKE VS. THE ITO, WARD-1, BEAWAR TOLFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIJPB 0894 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 10/07/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T THE RESPECTIVE ORDERS OF LD. CIT(A) AJMER DATED 17.08.2 018 AND 13.08.2018 FOR A.Y 2012-13 WHEREIN HE HAS CONFIRMED THE LEVY O F PENALTY U/S 271A AND 271B OF THE ACT. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. HOW EVER, AN ADJOURNMENT APPLICATION DATED 04.07.2020 HAS BEEN R ECEIVED BY THE REGISTRY WHEREIN IT HAS BEEN STATED THAT THE QUANTU M APPEAL OF THE ASSESSEE IS PENDING ADJUDICATION BEFORE THE HONBLE RAJASTHAN HIGH ITA NO. 1078 & 1079/JP/2018 SMT. LEELA DEVI BUMB VS. ITO 2 COURT. HENCE, IN VIEW OF THE SAME, THE MATTER MAY B E ADJOURNED TO ANY FUTURE DATE AS MAY BE CONVENIENT TO THE BENCH. 3. PER CONTRA, THE LD. DR IS HEARD WHO HAS SUBMITT ED THAT THESE ARE TWO APPEALS IN THE CONTEXT OF LEVY OF PENALTY U/S 2 71A AND 271B OF THE ACT FOR NON-MAINTENANCE OF BOOKS OF ACCOUNTS AND NO T GETTING THEM AUDITED, AND THUS, HAVE NO LINKAGE WITH THE QUANTUM PROCEEDINGS AS STATED BY THE ASSESSEE WHICH ARE PENDING ADJUDICATI ON BEFORE THE HONBLE RAJASTHAN HIGH COURT. IT WAS FURTHER SUBMIT TED THAT THE MATTER HAS BEEN FIXED FOR HEARING ON COUPLE OF OCCASIONS I N THE PAST. HOWEVER THE ASSESSEE HAS SOUGHT ADJOURNMENT AND AGAIN TODAY AN ADJOURNMENT APPLICATION HAS BEEN FILED. IT WAS ACCORDINGLY SUBM ITTED THAT THE MATTER MAY BE HEARD ON MERITS AND THE ADJOURNMENT APPLICAT ION SHOULD BE DISMISSED. 4. WE AGREE WITH THE CONTENTION OF THE LD. DR THAT THESE ARE NOT CONSEQUENTIAL PROCEEDINGS WHICH ARE DEPENDENT ON TH E OUTCOME OF THE APPEAL IN QUANTUM PROCEEDINGS WHICH IS PENDING ADJU DICATION BEFORE THE HONBLE RAJASTHAN HIGH COURT. THESE ARE INDEPEN DENT PROCEEDINGS U/S 271A AND 271B OF THE ACT WHICH CAN BE HEARD IND EPENDENT OF THE QUANTUM PROCEEDINGS. 5. FURTHER, WE NOTE THAT THE MATTER HAS BEEN LISTED BEFORE THE TRIBUNAL IN THE PAST FOR THE FIRST TIME ON 15.06.20 20 WHEREIN THE MATTER WAS ADJOURNED FOR TODAY. THEREFORE, THIS IS ONLY TH E 2 ND HEARING WHICH IS SCHEDULED BEFORE THE BENCH. ITA NO. 1078 & 1079/JP/2018 SMT. LEELA DEVI BUMB VS. ITO 3 6. FURTHER, IT IS NOTED THAT THE MATTER HAS BEEN FI XED FOR HEARING BEFORE THE LD. CIT(A) ON COUPLE OF OCCASIONS. THE A SSESSEE HAS SOUGHT ADJOURNMENT TIME AND AGAIN FOR THE SAME REASONING T HAT THE MATTER IN QUANTUM PROCEEDINGS IS PENDING BEFORE THE HONBLE R AJASTHAN HIGH COURT. THEREAFTER, THE LD. CIT(A) HAS PROCEEDED AND PASSED THE EX- PARTE ORDER QUA THE ASSESSEE AND PENALTY HAS BEEN CONFIRMED U/S 271 A AS WELL AS 271B OF THE ACT RELYING ON THE ORDER OF THE AO STATING THAT NO REASONABLE CAUSE HAS BEEN SHOWN FOR NON-MAINTENANCE AND NON-AUDIT OF THE BOOKS OF ACCOUNTS. 7. GIVEN THAT THE ASSESSEE WAS UNDER WRONG IMPRESS ION THAT THESE ARE CONSEQUENTIAL PENALTY PROCEEDINGS WHICH ARE DEPENDE NT ON OUTCOME OF QUANTUM PROCEEDINGS AND ALSO THE FACT THAT THE MATT ER HAS NOT BEEN DECIDED ON MERIT BY THE LD. CIT(A), IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES ONE MORE OPPORT UNITY AND DEEM IT APPROPRIATE TO SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) WHO SHALL DECIDE THE SAME ON MERITS AFTER PR OVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. WHILE DECID ING THE MATTER, THE LD CIT(A) SHALL ALSO CONSIDER THE RECENT DECISI ON OF THIS BENCH IN CASE OF SHRI SANTOSH KUMAR VS ITO (ITA NO. 1093/JP/2019 DATED 03.07.2020) WHEREIN ON IDENTICAL ISSUE, THE TRIBUNAL HAS CONSIDERED THE GUIDANCE NOTE OF ICAI IN RESPECT OF TAX AUDIT U/S 44AB WHEREIN THE TURNOVER OR GROSS RECEIPT IN RESPE CT OF SPECULATIVE TRANSACTIONS HAS BEEN CONSIDERED AS SOM E TOTAL OF POSITIVE AND NEGATIVE OUTCOME OF THE SPECULATIVE TR ANSACTIONS AND NOT VOLUME OF THE TRANSACTIONS AS WELL AS PRESCRIBE D THRESHOLD OF TURNOVER OR GROSS RECEIPT FOR TAX AUDIT AS PRESCRIB ED U/S 44AB OF ITA NO. 1078 & 1079/JP/2018 SMT. LEELA DEVI BUMB VS. ITO 4 THE ACT RELEVANT FOR THE IMPUGNED ASSESSMENT YEAR. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AN D IS AT LIBERTY TO FILE NECESSARY PAPER BOOK AS SO ADVISED AND ENSURE IN TIMELY COMPLETION OF THE APPELLATE PROCEEDINGS AS SO DIREC TED BY THE LD. CIT(A). IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/07/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/07/2020. GANESH KUMAR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. LEELA DEVI BUMB, BIJAINAGAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1, BEAWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 1078 & 1079/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR