Poovadai Janarthanam Dinesh, CHENNAI V. ITO Non Corporate Ward 11(3)(i/c), CHENNAI

ITA 2655/CHNY/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4959 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AR V SRINIVASANJ
• Assessee Lawyers: HEMALATHAC A
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , !, ' !# BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S.JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A.NO.2655/CHNY/2017 / ASSESSMENT YEAR : 2013-14 MR.POOVADAI JANARTHANAM DINESH , OLD NO.235, NEW NO.218, THAMBU CHETTY STREET, CHENNAI. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD 11(3)(I/C) CHENNAI 600 034. [ PAN AIGPD 2575 D ] ( $% /APPELLANT ) ( &'$% /RESPONDENT ) / APPELLANT BY : MS.HEMALATHA,C.A /RESPONDENT BY : MR.AR.V.SRINIVASAN,JCIT,DR ! / DATE OF HEARING : 12 - 07 - 2018 '# ! / DATE OF PRONOUNCEMENT : 10 - 08 - 2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-13, CHENNAI DATED 22.08.2017 AND PERTAINS TO ASSESSMENT YEAR 2013-14 CONFIRMING THE PENALTY LEVIED BY THE LD. AS SESSING OFFICER U/S.271B OF THE ACT. 2. MS.HEMALATHA, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE ENGAGED HIMSELF IN THE BUSINESS OF CLEARIN G AND FORWARDING OF IMPORT AND EXPORT GOODS OF THE CUSTOMER. IN OTHER WORDS, T HE ASSESSEE WAS ACTING AS CLEARING AND FORWARDING AGENT. THE ASSESSEE HAS REC EIVED COMMISSION CHARGES ONLY TO THE EXTENT OF ` 9,54,599/-. HOWEVER, THE LD. ASSESSING OFFICER BY TAKING THE GROSS RECEIPT FOUND THAT THE ASSESSEE S ACCOUNT NEEDS TO BE AUDITED. ACCORDING TO LD.A.R, THE ASSESSEE WAS UNDE R THE BONA FIDE IMPRESSION THAT THE COMPANY OF ASSESSEE RECEIVED ONLY ` 9,54,599/-, HENCE THE ACCOUNTS ARE NOT COMPULSORILY AUDITABLE. THE LD. COUNSEL FO R THE ASSESSEE PLACED RELIANCE ON THE ORDER OF THE MUMBAI TRIBUNAL IN THE CASE OF M/S.HELIOS LOGISTICS, MUMBAI VS. INCOME TAX OFFICER IN ITA NO. 1032/MUM/2015 VIDE ORDER DATED 29 TH JULY, 2016 AND ALSO RELIED ON THE OTHER DECISION O F DIFFERENT BENCHES OF THE TRIBUNAL. 3. ON THE OTHER CONTRARY, LD.D.R SUBMITTED THAT TH E GROSS RECEIPTS ARE THE TURNOVER, WHICH INCLUDE THE ENTIRE RECEIPTS INC LUDING THE COMMISSION. THEREFORE, THE ASSESSEE IS LIABLE TO GET THE ACCOUN TS AUDITED. SINCE ADMITTEDLY THE BOOKS OF ACCOUNTS WERE NOT AUDITED, THEREFORE, THE LD. ASSESSING OFFICER HAS RIGHTLY LEVIED THE PENALTY U/S.271 B OF THE ACT . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS THAT THE COMMISSION RECEIVED WAS ONLY ` 9,54,599/-, HENCE THE ACCOUNTS NEED NOT TO BE AUDITED. THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE TURNOVER MEANS THE GROSS RECEIPTS, WHICH INCLUDE THE COMMISS ION ALSO. HOWEVER, THE ASSESSEE WAS UNDER THE BONA FIDE BELIEF THAT THE CO MMISSION IS ONLY ` 9,54,599/-, HENCE, THE ACCOUNT NEED NOT TO BE AUDIT ED, WHEN THE COMMISSION DOES NOT EXCEED THE PRESCRIBED LIMIT AND THE ASSESSEE WAS UNDER THE BONA FIDE IMPRESSION THAT BOOKS NEED NOT TO BE AUDITED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUSE FOR NOT GETTING THE BOOKS AUDITED. THEREFORE, THE LEVY OF PENALTY U/S. 271B OF THE ACT IN THE FACTS OF THE CASE IS NOT WARRANTED. ACCORDINGLY, THE ORDE RS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE PENALTY LEVIED BY THE L D. ASSESSING OFFICER AS CONFIRMED BY THE LD.CIT(A) IS DELETED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 10 TH AUGUST, 2018, AT CHENNAI. SD/- SD/- ( ! ) ( S. JAYARAMAN ) ! $% /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN ) & $% /JUDICIAL MEMBER '& / CHENNAI ($ / DATED: 10 TH AUGUST, 2018. K S SUNDARAM $) *+ ,+ / COPY TO: 1 . / APPELLANT 3. - ( ) / CIT(A) 5. +./ 0 / DR 2. / RESPONDENT 4. - / CIT 6. /1 2 / GF