Leena Rahul Tupe, Pune V. Asst. Comm. of Income-tax, Pune

ITA 1404/PUN/2011

• Counselvise Citation: 140424514 RSA 2011
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 09-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNITA RAO
• Keywords: Search and seizure; Non compliance
• Section: 273B; 133A; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO S . 1402, 1403, 1404 & 1405 / P N/ 20 11 ASSESSMENT YEAR S : 2004 - 05, 2005 - 06, 2006 - 0 7 & 2007 - 08 LEENA RAHUL TUPE 94/2, TUKARAM NAGAR, MANJARI BUDRUK, TAL. HAVELI, PUNE VS. ASST. COMM. OF INCOME - TAX, CIRCLE - 2(3), PUNE (APPELLANT) (RESPONDENT) PAN NO. ADIPT7765J APPELLANT BY: KISHORE PHADKE RESPONDENT BY: SMT. SUNITA RAO DATE OF HEARING : 10 - 06 - 2013 DATE OF PRONOUNCEMENT : 21 - 0 6 - 2013 ORDER P ER BENCH : - THIS BATCH OF FOUR APPEALS ARE FILED BY THE ASSESSEE CHALLENGING THE RESPECTIVE IMPUGNED ORDERS OF THE LD. CIT(A) - CENTRAL, PUNE DATED 25 - 05 - 2011 FOR THE A.YS. 2004 - 05, 2005 - 06, 2006 - 07 & 2007 - 08. THE SOLITARY ISSUE FOR CONS IDERATION IN THIS APPEAL IS WHETHER THE ASSESSING OFFICER IS JUSTIFIED IN LEVYING THE PENALTY U/S. 271B FOR NON COMPLIANCE OF SEC. 44A B OF THE INCOME - TAX ACT. 2. THE FACTS WHICH REVEALED FROM THE R ECORD ARE AS UNDER. THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE ASSESSEE U/S. 132 OF THE INCOME - TAX ACT. THERE WAS ALSO A SURVEY ACTION U/S. 133A OF THE ACT . IN CONSEQUENCE OF THE SEARCH AND SEIZURE OPERATION , THE ASSESSEE WAS REQUIRED TO FILE THE RETURNS OF INCOME IN RESPONSE TO NOTICE ISSUED U/S. 153A OF THE ACT. THE ASSESSMENTS OF THE ASSESSEE WERE COMPLETED U/S. 143(A) R.W.S. 1 5 3 A OF THE ACT. THE ASSESSEE IS CARRYING ON BUSINESS IN MILK IN THE NAME AND STYLE OF M/S. SAI MILK SUPPLIERS. THE A SSESSEE WAS REGULARLY FILING THE RETURNS OF INCOME IN WHICH THE COMMISSION WAS 2 ITA NO. ITA NOS. 1402, 1403, 1404 & 1405/PN/2011, LEENA RAHUL TUPE, PUNE SHOWN FROM THE TRADING IN THE MILK BUT WHILE FILING T HE RETURNS IN RESPONSE TO NOTICE U/S. 153A. THE ASSESSEE DECLARED THE TURNOVER OF THE MILK BUSINESS AS UNDER: A.Y. AMOUNTS OF THE MILK TURNOVER DE CLARED 2004 - 05 RS.51,85,409/ - 2005 - 06 RS.57,54,836/ - 2006 - 07 RS.82,95,740/ - 2007 - 08 RS.79,39,970/ - 3. THE ASSESSEE HAS NOT SUBMITTED ANY AUDIT REPORT AS REQUIRED U/S. 44AB OF THE INCOME - TAX ACT , E VEN THOUGH THE TOTAL TURNOVER DECLARED BY THE ASSESSEE WAS ABOVE RS.40,00,000/ - IN ALL ABOVE FOUR YEARS . THE ASSESSING OFFICER THEREFORE INITIATED THE PENALTY PROCEEDINGS U/S.271B OF THE ACT AND LEVIED THE PENALTY AS UNDER : ASSESSMENT YEAR AMOUNT 2004 - 05 RS.25,930/ - 2005 - 06 RS.34,87 0/ - 2006 - 07 RS.47,770/ - 2007 - 08 RS.59,010/ - THE ASSESSEE CHALLENGED THE PENALTY ORDERS BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. THE LD. CIT(A) CONFIRMED THE PENALT IES LEVIED BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LEARNED COUNSEL SUBMITS THAT THE ASSESSEE IS DEALING INTO THE MILK AND IN THE RETURNS FILED U/S. 139(1) THE ASSESSEE HAS DECLARED THE COMMISSION ON SALE OF THE MILK AS PER THE ADVICE GIVEN BY HIS CONSULTANT. HE SUBMITS THAT AS PER THE BONAFIDE BELIEVE THE ASSESSEE WAS OF THE OPINION THAT THE PROVISIONS OF SEC. 44AB ARE NOT ATTRACTED. HE FURTHER SUBMITS THAT EVEN IF THE RETURNS ARE FILED IN RESPONSE TO NOTICE U/S. 153A BUT THE FACTS REMAINED THAT THE INCOME DECLARED IN THE ORIGINAL RETURNS IN ALL ASSESSMENT YEARS IS THE SAME WHICH HAS BEEN ACCEPTED. HE FURTHER SUBMITS THAT SO FAR AS THE A.Y. 2004 - 05 IS 3 ITA NO. ITA NOS. 1402, 1403, 1404 & 1405/PN/2011, LEENA RAHUL TUPE, PUNE CONCERNED , IT IS THE FIRST ASSESSMENT YEAR AND HENCE, FOR THE SAID YEAR NO PENALTY CAN BE LEVIED A S SEC. 44AB CONTEMPLATES THAT THE LIMIT OF THE TURNOVER SHOULD EXCEED RS.40,00,000/ - IN THE PRECEDING YEAR. HE FURTHER SUBMITS THAT CONSIDERING THE MARGIN OF COMMISSION OR PROFIT IN THE TRADING OF THE MILK THE TURNOVER MAY NOT BE DE CISIVE. HE PLEADED FOR DELETING THE PENALT IES IN ALL THE APPEALS. WE HAVE ALSO HEARD THE LD. DR. 5. SO FAR AS THE A.Y. 2004 - 05 IS CONCERNED IN THE RETURN FILED U/S. 139(1) THE ASSESSEE DECLARED THE COMMISSION FOR THE MILK TRADING BUT WHILE FILING THE RE TURNS IN RESPONSE TO NOTICE U/S. 153A , T HE ASSESSEE DECLARED THE TOTAL TURNOVER OF THE MILK BUSINESS AT RS.51,85,409/ - AND ON WHICH NET PROFIT OF RS. 1,30,246/ - WAS SHOWN IN THE SAID YEAR. THE ASSESSEE STARTED THE NEW BUSINESS OF THE HOSTEL PROJECT BUT NO TURNOVER WAS SHOWN . I N THE A.Y. 2005 - 06 , T HE ASSESSEE DECLARED THE RECEIPT S FROM THE MILK TRADING AT RS.57,54,838/ - AND FROM THE HOSTEL BUSINESS AT RS.12,13,154/ - . FOR THE A.Y. 2005 - 6 THE ASSESSEE CAME FORWARD DECLARING THE INCOME FROM THE MILK TRADING , ONLY AFTER THE SEARCH AND SURVEY ACTION . IN THE A.Y. 2006 - 07 , THE RETURN FILED IN RESPONSE TO NOTICE U/S. 153A THE ASSESSEE DECLARED THE GROSS RECEIPT S FROM THE MILK BUSINESS AT RS.82,95,740/ - AND FROM HOSTEL BUSINESS AT RS.12,36,053/ - . THE SAME WAY IN THE A.Y.2007 - 08 THE ASSESSEE DECLARED THE GROSS RECEIPT S FROM MILK BUSINESS AT RS.79,39,970/ - AND GROSS RECEIPT S FROM THE M/S. SAI ENTERPRISES AT RS.35,95,502/ - . 5.1. ADMITTEDLY IN ALL THE ASSESSMENT YEARS THE TURNOVER OF THE ASSESSEE IS MORE THAN RS.40 ,00,000/ - . D URING THE COURSE OF THE HEARING QU ERY WAS RAISED TO T HE LEARNED COUNSEL WHETHER ANY AUDIT REPORT IS PREPARED IN RESPECT OF ALL THE FOUR ASSESSMENT YEARS TILL TODAY . HE SUBMITTED THAT NO AUDIT REPORT IS PREPARED BUT THERE WAS CONFUSION DUE TO ADVICE GIVEN BY THE CONSULTANT THAT THEY ARE NOT COVERED UNDER THE PROVISIONS OF SEC.44A B . B UT SUBSEQUENTLY THE ASSESSEE REALIZED , IT WAS NOT A CORRECT ADVICE HENCE, THE ASSESSEE DECLARED THE INCOME ON THE BASIS OF TURNOVER. 4 ITA NO. ITA NOS. 1402, 1403, 1404 & 1405/PN/2011, LEENA RAHUL TUPE, PUNE 6. IN OUR OPINION , THE EXPLA NATION OF THE ASSESSEE CANNOT BE TREATED AS A REASONABLE C AUSE WITHIN THE MEANING OF SEC. 271B R.W.S. 273B FOR FAILURE TO GET THE ACCOUNTS A UDITED . ADMITTEDLY IN THE PRESENT CASE , AS PER THE RECORD , ONLY IN ONE ASSESSMENT YEAR THE ASSESSEE HAS FILED THE R ETURN SHOWING THE INCOME FROM THE MILK TRADING . N OTHING HAS BEEN PLACED BEFORE US TO SHOW THAT THE ASSESSEE WAS THE COMMISSION AGENT ONLY NOT TRADER IN THE MILK. MOREOVER, THE ASSESSEE HERSELF HAS DE CLARED THE TURNOVER FROM THE MILK BUSINESS IN ALL THE R ETURNS FILED IN RESPONSE TO NOTICE U/S. 153A AND THIS FACT IS NO WHERE DENIED. WE , THEREFORE , HOLD THAT THERE WAS NO REASON FOR THE ASSESSEE FOR NOT GETTING THE ACCOUNT AUDITED AS PROVIDE D IN SEC.44AB OF THE ACT AS MUCH AS TO FURNISH THE AUDIT REPORT AS P ER THE TIME PRESCRIBED IN THE SAID SECTION. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN ALL THE ASSESSMENT YEARS. 6. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE DISMISSED. SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 21 ST JUNE, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - CENTRAL, PUNE 4 THE CIT - CENTRAL, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE PRONOUNCED IN THE OPEN COURT ON 21 - 06 - 2013