Shri Udayshankar Narendraprasad, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

ITA 223/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67508 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA SRDR

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.223/AHD/2013 [ASSTT.YEAR : 2008-2009] SHRI UDAYSHANKAR NARENDRAPRASAD 22, GLORIOUS HOUSE B/H. DOCTOR HOUSE, ELLISBRIDGE AHMEDABAD 380 007. PAN : AFVPP 9016 K /VS. ITO, WARD-9(1) AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : MS.URVASHI SHODHAN + 2 3 )/ REVENUE BY : SHRI O.P. BATHEJA, SR.DR 5 2 &(*/ DATE OF HEARING : 8 TH JULY, 2013 678 2 &(*/ DATE OF PRONOUNCEMENT : 02-08-2013 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-2009, IS DIRE CTED AGAINST THE ORDER OF THE CIT(A)-XV, AHMEDABAD DATED 12 TH NOV.2012. 2. THE ONLY GROUND OF THE APPEAL OF THE ASSESSEE IS AS UNDER: ITA NO.223/AHD/2013 -2- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED BY AO OF RS.67,053/- UNDE R SECTION 271B FOR FAILURE ON THE PART OF THE APPELLA NT TO GET BOOKS OF ACCOUNTS AUDITED AS PER PROVISION OF SECTI ON 44AB OF THE ACT. THE LD.CIT(A) FAILED TO APPRECIATE THA T AUDIT REPORT IN RESPECT OF PROPRIETARY BUSINESS M/S.SARAS WATI TRANSPORT CO. WAS OBTAINED AND FILED WHEREAS IN THE ABSENCE OF BOOKS MAINTAINED FOR BUSINESS OF M/S.AAR TI CONTAINER CARRIER THERE WILL NOT ARISE QUESTION OF APPLICABILITY OF PROVISIONS OF SECTION 44AB OF THE ACT, SO AS TO ATTRACT ANY PENALTY U/S.271B OF THE ACT. LD. CI T(A) OUGHT TO HAVE DELETED PENALTY LEVIED BY THE AO. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS NOT MAINTAINED ITS BOOKS OF ACCOUNTS A S PER THE PROVISION OF SECTION 44AA OF THE ACT, AND THEREFORE PENALTY UNDER SECTION 271A FOR NON-MAINTENANCE OF BOOKS OF ACCOUNTS AND OTHER DOCUMENTS AS REQUIRED UNDER SECTION 44AA OF THE ACT WAS LEVIED AMOUNTING TO RS.25,000/-, WITH THE APPRO VAL OF THE ACIT. SHE SUBMITTED THAT SINCE THE ASSESSEE HAS AD MITTEDLY NOT MAINTAINED ITS ACCOUNTS BOOKS AND OTHER DOCUMENTS, AS CONTEMPLATED UNDER SECTION 44AA OF THE ACT, AND HAS BEEN PENALISED FOR THE SAID DEFAULT, THERE CANNOT BE ANY POSSIBILITY OF GETTING THE ACCOUNTS AUDITED AS PER THE REQUIREMENT OF SECTION 44AB OF THE ACT, AND ACCORDINGLY, NO SEPARATE PENAL TY FOR NON- AUDIT OF THE ACCOUNTS COULD BE LEVIED UNDER SECTION 271B OF THE ACT. SHE SUBMITTED THAT THE ISSUE IS COVERED IN FA VOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE GAUHATI H IGH COURT IN THE CASE OF SURAJMAL PARSURAM TODI VS. CIT, 222 IT R 691 (GAH) AND HONBLE ALLAHABAD HIGH COURT IN COMMISSIONER OF INCOME- TAX V. BISAULI TRACTORS, 299 ITR 219. SHE SUBMITTED THAT THE ISSUE ITA NO.223/AHD/2013 -3- IS ALSO COVERED WITH THE DECISION OF THE CO-ORDINAT E BENCH OF THE ITAT, AHMEDABAD IN SHRI TARUN D. KARIA VS. DCIT, IN ITA NO.3541 TO 3545/AHD/2000 DATED 16.11.2007 WHEREIN I DENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY FOLL OWING THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE C ASE OF SURAJMAL PARSURAM TODI VS. CIT (SUPRA). SHE SUBMIT TED THAT THE ORDER OF IMPOSING THE PENALTY UNDER SECTION 271A ON ACCOUNT OF NON-MAINTENANCE OF ACCOUNTS HAS BEEN CONFIRMED BY T HE CIT(A) VIDE ORDER DATED 12.11.2002 AND THE ASSESSEE HAS NO T PREFERRED ANY APPEAL TO THE TRIBUNAL. 4. THE LEARNED DR SUBMITTED THAT THE CASE OF THE AS SESSEE IS DIFFERENT THAN THAT OF THE CASES RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT IN THESE CASES , RELIED UPON BY THE ASSESSEE, THERE WAS ONLY ONE CONCERN, WHEREAS I N THE CASE OF THE ASSESSEE BEFORE US, THE ASSESSEE WAS RUNNING TW O BUSINESS CONCERNS, AND IS MAINTAINING ACCOUNT BOOKS OF ONE B USINESS CONCERN AND ALSO GETTING THE ACCOUNTS AUDITED, AND HAS NOT MAINTAINED THE BOOKS OF ACCOUNTS OF OTHER CONCERN. THE LEARNED DR SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE REVENUE WITH THE DECISION OF THE HONBLE MADHYA PRADESH HIG H COURT IN THE CASE OF BHARAT CONSTRUCTION COMPANY VS. CIT, 15 3 CTR 414 (MP), AND ALSO HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. S.C. NAREGAL, 329 ITR 615. HE SUBMITTED THAT T HE PROVISION OF SECTION 271B IS TOTALLY DIFFERENT FROM THE PROVI SION OF SECTION 271A OF THE ACT, AND THEREFORE BEING DISTINCT PROVI SION, SEPARATE PENALTIES FOR TWO OFFENCES COULD VERY WELL BE LEVIE D ON THE ITA NO.223/AHD/2013 -4- ASSESSEE. THE LEARNED DR SUBMITTED THAT ONCE TO GE T THE ACCOUNTS AUDITED IS COMPULSORY UNDER THE PROVISION OF LAW, T HE ASSESSEE IS REQUIRED TO MAINTAIN ITS ACCOUNT BOOKS. ANY OTHER INTERPRETATION TAKEN SHALL LEAD TO ANOMALIES. HE RELIED ON THE OR DERS OF THE AO AND THE CIT(A). 5. THE LEARNED COUNSEL FOR THE ASSESSEE IN HER REJO INDER SUBMITTED THAT IF TWO VIEWS ARE POSSIBLE, THEN ONE VIEW WHICH IS FAVOURABLE TO THE ASSESSEE SHOULD BE ADOPTED. FOR THIS SUBMISSION, SHE RELIED ON THE JUDGMENT OF THE HONB LE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD ., 88 ITR 192 (SC). 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND HAS PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FI ND THAT THE ASSESSEE WAS SEPARATELY PENALISED FOR NON-MAINTENAN CE OF ACCOUNTS UNDER THE PROVISION OF SECTION 271A, AND T HE ASSESSEES APPEAL AGAINST THE ORDER IMPOSING PENALTY UNDER SEC TION 271A HAS BEEN DISMISSED BY THE CIT(A). THE ASSESSEE HAS NOT PREFERRED ANY FURTHER APPEAL BEFORE THE TRIBUNAL. WE FIND TH AT ONCE A PERSON COMMITS AN OFFENCE BY NOT MAINTAINING THE BO OKS OF ACCOUNTS, AS REQUIRED UNDER SECTION 44AA OF THE ACT , THE OFFENCE OF THE ASSESSEE IS COMPLETE BY ITSELF. IN SUCH A C ASE, WHERE NO BOOKS OF ACCOUNTS ARE MAINTAINED BY THE ASSESSEE, T HERE CANNOT BE ANY POSSIBILITY OF GETTING THE ACCOUNTS BOOKS AUDIT ED BY CHARTERED ACCOUNTANT, AS PER THE REQUIREMENT OF SEC TION 44AB OF THE ACT. TO PENALISE THE ASSESSEE UNDER BOTH THE P ROVISION OF THE ITA NO.223/AHD/2013 -5- ACT FOR PENALTY UNDER SECTION 271A AND FOR PENALTY UNDER SECTION 271B OF THE ACT, SHALL RESULT IN DOUBLE JEOPARDY TO THE ASSESSEE. THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF SURAJ MAL PARSURAM TODI VS. CIT AND THE DECISION OF THE HONBLE ALLAHA BAD HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. BISAULI TRACTORS (SUPRA). WE FIND THAT THE CO-ORDINATE BEN CH OF THE ITAT, AHMEDABAD IN TARUN D. KARIA VS. DCIT (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HAS HELD THAT ONCE THE PERSON HAS BEEN PENALIZED UNDER SECTION 44AA, T HERE CANNOT BE ANY POSSIBILITY OF ANY OFFENCE BEING COMMITTED, AS CONTEMPLATED BY SECTION 44AB, AND HAS FOLLOWED THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF SURAJ MAL PARSURAM TODI VS. CIT (SUPRA) AND HELD THAT IF THE ACCOUNTS ARE NOT MAINTAINED, THE PENALTY UNDER SECTION 271B CANNOT B E LEVIED FOR NON-AUDIT OF THE ACCOUNTS UNDER SECTION 44AB OF THE ACT. WE FIND THAT THE PLEA OF THE LEARNED DR THAT THE ASSES SEE HAS TWO BUSINESS CONCERNS, OUT OF WHICH, THE ASSESSEE HAS M AINTAINED ACCOUNTS FOR ONE CONCERN, AND HAS GOT ITS ACCOUNTS AUDITED AND HAS NOT MAINTAINED THE ACCOUNTS OF OTHER CONCERN, A ND THEREFORE THE CASE OF THE ASSESSEE IS DISTINGUISHABLE FROM TH E DECISIONS OF RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE, IS DEVOID OF ANY MERIT. WE FIND THAT THE DECISION OF THE HONBL E KARNATAKA HIGH COURT RELIED UPON BY THE LEARNED DR IS DISTING UISHABLE. WITH REGARD TO OTHER DECISION OF HONBLE MADHYA PRA DESH HIGH COURT IN THE CASE OF BHARAT CONSTRUCTION COMPANY VS . ITO ITA NO.223/AHD/2013 -6- (SUPRA), WE FIND THAT THE DECISION OF THE HONBLE S UPREME COURT IN THE CASE OF VEGETABLE PRODUCTS PVT. LTD. (SUPRA) HELPS THE CASE OF THE ASSESSEE. WE BEING IN AGREEMENT WITH THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT, IN SHRI TARUN D. KAR IA VS. DCIT (SUPRA), WHEREIN THE DECISION OF THE HONBLE GAUHAT I HIGH COURT IN THE CASE OF SURAJMAL PARSURAM TODI VS. CIT (SUPR A) WAS FOLLOWED, DECIDE THE ISSUE IN FAVOUR OF THE ASSESSE E, AND PENALTY LEVIED UNDER SECTION 271B OF THE ACT IS CANCELLED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD