K.Tamilselvi, Perambalur V. DCIT, Trichy

ITA 708/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4290 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 23-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K TAMILSELVI

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , ! . , ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER , AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.708/MDS/2017 /ASSESSMENT YEAR: 2006-07 SMT. K.TAMILSELVI, 56/19, 3 RD FLOOR, NYNIAPPA MAISTRY STREET, PUDUPAKKAM, ROYAPETTAI, CHENNAI-600 014. VS. THE DY. COMMISSIONER, CIRCLE-I, 44, WILLIAMS ROAD, TRICHIRAPALLI-620 001. [PAN: ABJPT 6612 M ] ( & /APPELLANT) ( '(& /RESPONDENT) & ) / APPELLANT BY : MS.K.TAMILSELVI '(& ) /RESPONDENT BY : MR.SASIKUMAR, JCIT ) /DATE OF HEARING : 15.06.2017 ) /DATE OF PRONOUNCEMENT : 15.06.2017 / O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER : ITA NO.708/MDS/2017 IS AN APPEAL FILED BY THE ASSE SSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, TI RUCHIRAPALLI, IN ITA NO.60/2009-10/CIT(A)-1/TRY. DATED 31.01.2017 FOR TH E AY 2006-07. 2. SHRI SASIKUMAR, JCIT, REPRESENTED ON BEHALF OF T HE REVENUE AND THE ASSESSEE REPRESENTED IN-PERSON. ITA NO.708/MDS/201 :- 2 -: 3. IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESS EE PLIED FIVE LORRIES DURING THE PREVIOUS YEAR AND THE SAID LORRIES WERE EXCLUSIVELY USED FOR TRANSPORTATION OF TWO WHEELERS. THE ASSESSEE HAD A PPLIED THE PROVISIONS OF SEC.44AE AND HAD FILED HER RETURN OF INCOME ON 2 7.10.2006. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED U/S.1 43(1) ON 24.03.2008. THE RETURNED INCOME OF THE ASSESSEE WAS ACCEPTED. SUBSEQUENTLY, NOTICE U/S.271A WAS ISSUED ON 28.01.2009 ON THE ASSESSEE I N RESPECT OF THE NON- MAINTENANCE OF BOOKS OF ACCOUNTS. THE ASSESSEE HAD SUBMITTED THAT SHE OWNED FIVE LORRIES AND WAS ENGAGED IN THE BUSINESS OF HIRING THEM. THE ASSESSEE HAD SUBMITTED THAT THE ASSESSEE HAD FILED HER RETURN APPLYING THE PROVISIONS OF SEC.44AE OF THE ACT. HOWEVER, AS THE ASSESSEE HAD CALCULATED HER TOTAL GROSS RECEIPTS AT RS.39,83,376 /- AND RS.33,45,706/- AS EXPENDITURE, ON THE GROUND THAT NO BOOKS WERE M AINTAINED, THE AO LEVIED PENALTY U/S.271A. ON A SPECIFIC QUERY, IT W AS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAD ADMITTED AN INCOME O F RS.10,17,670/- BY APPLYING THE PROVISIONS OF SEC.44AE. ON APPEAL, LD .CIT(A) HAD CONFIRMED THE LEVY OF PENALTY. IT WAS A SUBMISSION THAT THE O RDER OF THE LD.CIT(A) BE REVERSED. 4. IN REPLY, THE LD.DR VEHEMENTLY SUPPORTED THE ORD ER OF THE AO AND THE LD.CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMIT TEDLY, THE ASSESSEE HAS RETURNED AN INCOME OF RS.10,17,670/- AS INCOME FROM PLYING OF FIVE ITA NO.708/MDS/201 :- 3 -: LORRIES. THE RETURNED INCOME OF THE ASSESSEE HAS B EEN ACCEPTED SO FAR AS THE RETURN WAS PROCESSED U/S.143(1) ON 24.03.2008. THE ASSESSEE ADMITTEDLY HAS GIVEN THE DETAILS, HER TOTAL RECEIPT S AND EXPENDITURE. IF THE TOTAL RECEIPTS AND EXPENDITURE ARE CONSIDERED, THE ASSESSEES NET PROFIT WOULD BE AROUND RS.6,37,600/- BUT THE ASSESSEE HAS OFFERED HIGHER INCOME BY APPLYING THE PROVISIONS OF SEC.44AE. JUST BECAUSE THE ASSESSEE HAS NOT MENTIONED SEC.44AE IN HER RETURN AND HAS GI VEN THE DETAILS OF HER TOTAL RECEIPTS AND EXPENDITURE, IT DOES NOT MAKE TH E RETURN OF INCOME FILED BY HER TO BE NOT U/S.44AE. SHE WOULD OBVIOUSLY HAV E TO GIVE THE DETAILS OF HER TOTAL RECEIPTS TO CLAIM THE BENEFIT OF THE T DS. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS FILED HER RETURN BY N OT APPLYING THE PROVISIONS OF SEC.44AE. THE FACT THAT THE PROVISIO NS OF SEC.44AE IS MADE AVAILABLE TO THE ASSESSEES WHO ARE PLYING 10 LORRI ES OR LESS THAN 10 LORRIES SHOWS THAT THE LEGISLATURE WAS WELL-AWARE OF SUCH S MALL ASSESSEES, FINDING IT DIFFICULT TO MAINTAIN THE NECESSARY STAFF. IN A NY CASE, SHORN OF ALL THE FRILLS, IT IS CLEAR THAT THE ASSESSEE HAS FILED HER RETURN OF INCOME BY DECLARING HER INCOME BY APPLYING THE PROVISIONS OF SEC.44AE AND THIS IS NOT DISPUTED BY THE REVENUE. ONCE THE ASSESSEE IS FILING HER RETURN OF INCOME AND DISCLOSING HER INCOME ON THE BASIS OF SE C.44AE, IT IS NOT MANDATORY ON THE ASSESSEE TO MAINTAIN HER BOOKS OF ACCOUNTS. THIS BEING SO, WE ARE OF THE VIEW THAT NO PENALTY U/S.271A IS LEVIABLE IN THE HANDS OF THE ASSESSEE. CONSEQUENTLY, THE PENALTY AS LEVIED BY THE AO AND AS CONFIRMED BY THE LD.CIT(A) STANDS DELETED. ITA NO.708/MDS/201 :- 4 -: 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 15, 201 7, AT CHENNAI. SD/- SD/- ( . ) ( A. MOHAN ALANKAMONY ) ! /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER /CHENNAI, 1 /DATED: JUNE 15 , 2017. TLN ) '23 43 /COPY TO: 1. & /APPELLANT 4. 5 /CIT 2. '(& /RESPONDENT 5. 3 ' /DR 3. 5 ( ) /CIT(A) 6. /GF