Shri Lav Narang, Ujjain V. THE ACIT 2(1), Ujjain

ITA 410/IND/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5826 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: S S DESHPANDE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI N.S. SAINI, HONBLE ACCOUNTANT MEMBER ITA NO. 410/IND/2016 (ASST. YEAR : 2010-11) SHRI LAV NARANG, 12,KSHAPNAK MARG, FREEGANJ, UJJAIN VS. ACIT, 2(1), UJJAIN PAN NO. AAUPN6907H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.S.DESHPANDE, C. A. DEPARTMENT BY : SHRI R.P.MOURYA, DR DATE OF HEARING : 04/07/2016. DATE OF PRONOUNCEMENT : 04/07/2016. O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), UJJAIN, DATED 02/02/2016. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THIS APPEA L IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 9 7,450/- U/S 271B WHICH IS WRONG AND BAD IN LAW AND IS LIABLE TO BE D ELETED. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERU SED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON REC ORD. IN THE INSTANT SHRI LAV NARANG VS. ACIT,2(1), UJJAIN I.T.A.NO. 4 10/IND/2016 2 CASE, THE ASSESSEE IS A CIVIL CONTRACTOR AND FILED RETURN OF INCOME SHOWING INCOME OF RS. 14,92,590/- ON 14.10.2010. 4. THE AO FOUND THAT THE ASSESSEE HAD GROSS RECEIPTS O F RS. 1,94,90,752/- AND, THEREFORE, THE ASSESSEE SHOULD H AVE GOT ITS BOOKS OF ACCOUNTS AUDITED U/S 44AB OF THE INCOME-TAX ACT, 19 61. SINCE THE ASSESSEE HAS FAILED TO DO SO, HE IMPOSED THE PENALT Y OF RS. 97,450/- U/S 271B OF THE INCOME-TAX ACT, 1961. 5. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF TH E AO. 6. BEFORE ME, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT IT WILL BE OBSERVED FROM THE SECOND PARA OF THE ASSESSMENT ORDER THAT THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS. THEREFORE, IT WAS HIS SUBMISSION THAT AS NO BOOKS OF ACCOUNTS WERE MAINTAINED BY THE ASSESSE E, THE QUESTION OF GETTING THE SAME AUDITED DOES NOT ARISE AND, THEREF ORE, THE LEVY OF PENALTY WAS NOT JUSTIFIED. 7. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. I FIND THAT AHMEDABAD BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI UDAY SHANKAR NARENDRA PRASAD VS. ITO, I.T.A.NO. 223 /AHD/2013 ORDER DATED 2.8.2013 HELD THAT WHERE NO BOOKS OF ACCOUNTS WERE MAINTAINED BY THE ASSESSEE, THERE CANNOT BE ANY POSSIBILITY OF GETTING THE SAME ACCOUNT BOOKS AUDITED BY THE CHARTERED ACCOUNTANTS AS PER THE REQUIREMENT OF SECTION 44AB OF THE INCOME-TAX ACT, 1961. IT IS FURTHER OBSERVED THAT HON'BLE ALLAHABAD HIGH COURT IN THE C ASE OF CIT VS. SHRI LAV NARANG VS. ACIT,2(1), UJJAIN I.T.A.NO. 4 10/IND/2016 3 BISAULI TRACTORS, (2008) 299 ITR 219 (ALL) AND THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF SURAJMAL PARSUMAL TODI VS. CIT , 222 ITR 691 (GAU) HAS HELD THAT IF THE ACCOUNTS ARE NOT MAINTAI NED, PENALTY U/S 271B CANNOT BE LEVIED FOR NON-AUDITING OF THE ACCOU NTS U/S 44AB OF THE ACT. HENCE, I SET-ASIDE THE ORDERS OF THE LOWER AUT HORITIES AND DELETE THE PENALTY OF RS. 97,450/- AND ALLOW THE APPEAL OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON MONDAY, THE 4 TH DAY OF JULY, 2016 AT INDORE. SD/- (N.S.SAINI) ACCOUNTANT MEMBER DATED : 4TH JULY, 2016. CPU COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., INDORE SHRI LAV NARANG VS. ACIT,2(1), UJJAIN I.T.A.NO. 4 10/IND/2016 4