Tarak Nath Saha Mondal, Kolkata V. ITO, WD-50(4), KOLKATA, Kolkata

ITA 1155/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1790 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: PINKI SHAW
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 1155/KOL/2016 ASSESSMENT YEAR: 2011-12 TARAK NATH SAHA MONDAL........................................................APPELLANT 83/55, DUM DUM ROAD, KOLKATA 700 074 [PAN: APGPM 1708 Q] I.T.O. WARD 50(4), KOLKATA...................RESPONDENT UTTARAPAN MARKET COMPLEX, MANICKTALA CIVIC CENTRE, KOLKATA 700 054 APPEARANCES BY: PINKI SHAW APPEARING ON BEHALF OF THE ASSESSEE. ARINDAM BHATTACHARJEE, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 06, 2017 DATE OF PRONOUNCING THE ORDER : JANUARY 12, 2018 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) 15, KOLKATA DATED 01.02.2016 WHEREBY HE CONFIRMED THE PENALTY OF RS. 10,845/- IMPOSED BY THE A.O. UNDER SECTION 271B OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 30.03.2012 DECLARING A TOTAL INCOME OF RS. 1,26,160/-. IN THE SAID RETURN, NET PROFIT OF RS. 1,48,317/- WAS DECLARED BY THE ASSESSEE ON THE GROSS RECEIPTS OF RS. 21,68,920/- FROM HIS ELIGIBLE BUSINESS. SINCE THE NET PROFIT SO DECLARED AT 6.83% WAS BELOW 8%, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE WAS REQUIRED TO GET HIS ACCOUNTS AUDITED AS PER SECTION 44AB READ WITH SECTION 44AD OF THE ACT. SINCE THIS 2 I.T.A. NO. 1155/KOL/2016 ASSESSMENT YEAR: 2011-12 TARAK NATH SAHA MONDAL REQUIREMENT WAS NOT COMPLIED WITH BY THE ASSESSEE, PENALTY PROCEEDINGS UNDER SECTION 271B WERE INITIATED BY THE A.O. DURING THE COURSE OF THE SAID PROCEEDINGS, NO EXPLANATION WAS OFFERED BY THE ASSESSEE IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED BY THE A.O. THE A.O., THEREFORE, PRESUMED THAT THE ASSESSEE HAD NO EXPLANATION TO OFFER FOR THE DEFAULT COMMITTED BY HIM UNDER SECTION 44AB AND HE PROCEEDED TO IMPOSE A PENALTY OF RS. 10,845/- UNDER SECTION 271B OF THE ACT. 3. THE PENALTY IMPOSED BY THE A.O. UNDER SECTION 271B WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND SINCE THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATION FOR HIS DEFAULT COMMITTED UNDER SECTION 44AB, THE LD. CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE A.O. UNDER SECTION 271B. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE FROM CLAUSE (D) OF SECTION 44AB AS APPLICABLE TO THE YEAR UNDER CONSIDERATION, EVERY PERSON CARRYING ON THE BUSINESS WAS REQUIRED TO GET HIS ACCOUNTS AUDITED IF PROFITS AND GAINS FROM THE BUSINESS WERE DEEMED TO BE THE PROFITS AND GAINS OF SUCH PERSON UNDER SECTION 44AD AND HE HAD CLAIMED SUCH INCOME TO THE LOWER THAN THE PROFITS AND GAINS SO DEEMED TO BE THE PROFITS AND GAINS OF THE BUSINESS AND HIS INCOME EXCEEDED THE MAXIMUM AMOUNT WHICH WAS NOT CHARGEABLE TO INCOME TAX IN THE 3 I.T.A. NO. 1155/KOL/2016 ASSESSMENT YEAR: 2011-12 TARAK NATH SAHA MONDAL RELEVANT PREVIOUS YEAR. THE REQUIREMENT OF GETTING THE ACCOUNTS AUDITED AS PER CLAUSE (D) OF SECTION 44AB THUS WAS SUBJECT TO TWO CONDITIONS AND THE ASSESSEE IN THE PRESENT CASE HAD NOT SATISFIED ONE OF THESE TWO CONDITIONS AS RIGHTLY SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE IN AS MUCH AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION DID NOT EXCEED THE MAXIMUM AMOUNT WHICH WAS NOT CHARGEABLE TO INCOME TAX. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION CLEARLY EVIDENT FROM THE RECORD. WE, THEREFORE, CANCEL THE PENALTY IMPOSED BY THE A.O. UNDER SECTION 271B AND CONFIRMED BY THE LD. CIT(A) AND ALLOW THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12/01/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. TARAK NATH SAHA MONDAL, 83/55, DUM DUM ROAD, KOLKATA 74. 2. ITO, WARD-50(4), UTTRAPAN MARKET COMPLEX, KOLKATA 54. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. 4 I.T.A. NO. 1155/KOL/2016 ASSESSMENT YEAR: 2011-12 TARAK NATH SAHA MONDAL ITAT, KOLKATA