Anil Ganeshmal Jain, Pune V. Dy. CIT Cir-2[2] Pune, Pune

ITA 731/PUN/2012

• Counselvise Citation: 73124514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGHSHRI K K OJHA
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Additional evidence; Documents seized
• Section: 234B; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS.731 TO 739/PN/2012 (ASSTT.YEARS : 2001-02 TO 2008-09) ANIL GANESHMAL JAIN, PROP. ANIL TRADERS, 578, SACHAPIR STREET, CAMP, PUNE - 411001 .. APPELLANT PAN NO.AASPJ 7142E VS. DCIT CENTRAL CIRCLE 2(2), PUNE .. RESPONDENT APPELLANT BY : SHRI NIKHIL PATHAK RESPONDENT BY : SHRI S.K. SINGH/SHRI K.K.OJHA DATE OF HEARING : 05-06-2013 DATE OF PRONOUNCEMENT : 07-06-2013 ORDER PER R.K.PANDA, AM : ITA NO.731/PN/2012 AND ITA NOS.733/PN/2012 TO 739/ PN/2012 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATE D 23-01-2012 OF THE CIT(A) CENTRAL PUNE RELATING TO ASSESSMENT YEAR 2001-02 TO 2008-09. ITA NO.732/PN/2012 FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER DATED 23-01- 2012 OF THE CIT(A) CENTRAL, PUNE RELATING TO A.Y. 2 001-02 CHALLENGING THE LEVY OF PENALTY OF RS.60,020/- U/S.271B UPHELD BY THE CI T(A). FOR THE SAKE OF CONVENIENCE ALL THESE APPEALS WERE HEARD TOGETHER A ND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. WE FIRST TAKE UP ITA NO.738/PN/2012 FOR A.Y. 200 7-08 WHICH IS THE LEAD ORDER DECIDED BY THE CIT(A) AND WHICH HAS BEEN FOLLOWED IN OTHER YEARS. 2 2.1. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION U/S.132 WAS CARRIED OUT IN THE CASE OF ANIL JAIN AND HIS SO N RITESH JAIN AT THEIR RESIDENTIAL AS WELL AS BUSINESS PREMISES ON 26-06-2 007. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF AUTO CONSULTANCY COMMISS ION IN RESPECT OF 2 AND 3 WHEELER VEHICLES. IN RESPONSE TO NOTICE U/S.153A(A ) THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.YS. 2005-06, 2006-07, 2007-08 A ND 2008-09. DURING THE COURSE OF SEARCH ACTION AT THE RESIDENTIAL AND BUSI NESS PREMISES OF THE ASSESSEE AND HIS SON CERTAIN INCRIMINATING DOCUMENTS WERE SE IZED. SIMILARLY, CASH OF RS.7,85,830/- AND JEWELLERY VALUED AT RS.29,49,435/ - WERE ALSO FOUND OUT OF WHICH CASH OF RS.7,60,000/- AND JEWELLERY VALUED AT RS.19,72,770/- WERE SEIZED. THE ASSESSING OFFICER NOTED THAT THE ASSES SEE IN HIS REPLY TO QUESTION NO.3 OF THE STATEMENT RECORDED U/S.132(4) ON 27-06- 2007 HAS MENTIONED THAT INITIALLY HE WAS RECEIVING RS.14,000/- TO RS.15,000 /- AS COMMISSION AND NOW HE IS EARNING PROFIT OF RS.20,000/- TO RS.22,000/- FRO M ONE AUTO RICKSHAW. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE IS NOT MA INTAINING REGULAR BOOKS OF ACCOUNT AND HAS NOT PRODUCED ANY DOCUMENTARY EVIDEN CE WITH REGARD TO THE VARIOUS EXPENSES CLAIMED BY HIM SUCH AS RTO, INSURA NCE, OCTROI, METER, BANK PROCESSING CHARGES ETC. THE ASSESSING OFFICER ON T HE BASIS OF THE SEIZED MATERIAL DETERMINED THE COMMISSION EARNED FROM SALE OF ONE AUTO RICKSHAW FOR THE F.Y. 2007-08 THE DETAILS OF WHICH ARE AS UNDER (PARA 6.3 OF THE ASSESSMENT ORDER) : F.Y. NO. OF AUTO SOLD COST PER AUTO INCURRED BY ANIL JAIN COST OF PERMIT INCIDENTAL COST AVERAGE SELLING PRICE PER AUTO AVERAGE PROFIT PER AUTO I II III IV V (V-II) 2007-08 59 1,21,070 32,000 89,070 1,45,250 24,180 3 2.2 SINCE THE ASSESSEE IS EARNING COMMISSION OF RS. 24,180/- PER AUTO RICKSHAW THE ASSESSING OFFICER APPLIED THIS PROFIT RATE TO THE EARLIER FINANCIAL YEARS ALSO BECAUSE OF THE FOLLOWING REASONS : 1. PRICE OF THE AUTO RICKSHAW WAS LESS DURING THE E ARLIER FINANCIAL YEARS. 2. STATEMENT OF THE PERMIT HOLDERS REVEALED THAT RA TE OF THE PERMIT WAS ALSO LESS IN THE EARLIER YEARS. 3. ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS OF HIS BUSINESS AND ALSO HE COULD NOT PRODUCE THE DETAILS REGARDING EXPENSES IN CURRED BY HIM. 2.3 FROM THE SEIZED DOCUMENTS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SOLD THE FOLLOWING NUMBER OF AUTO RICKSHAWS DUR ING THE PERIOD PERTAINING TO F.Y. 2001-02 TO 2008-09, THE DETAILS OF WHICH ARE A S UNDER : F.Y. NO. OF AUTORICKSHAWS SOLD 2001-02 463 2002-03 476 2003-04 316 2004-05 217 2005-06 270 2006-07 284 2.4 APPLYING THE RATE OF RS.24,180/- PER AUTO RICKS HAW THE ASSESSING OFFICER COMPUTED THE INCOME FROM COMMISSION AND AFTER DEDUC TING THE INCOME DECLARED BY THE ASSESSEE MADE THE FOLLOWING ADDITIO N ON ACCOUNT OF COMMISSION (PARA 3 OF THE ORDER OF THE CIT(A). A.Y. ADDITION ON ACCOUNT OF COMMISSION 2002-03 5680820.00 2003-04 3625400.00 2004-05 1801040.00 2005-06 1054560.00 2006-07 125860.00 2007-08 959370.00 2008-09 427360.00 4 2.5 SIMILARLY, THE ASSESSING OFFICER ALSO MADE VARI OUS OTHER ADDITIONS SUCH AS INTEREST ON ACCOUNT OF FIXED DEPOSITS AT RS.2,92 ,771/- AND ALSO TAXED THE AGRICULTURAL INCOME FOR THE A.Y. 2007-08. 3. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF TH E ASSESSING OFFICER FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE: - 1. THE LEARNED CIT (APPEALS) ERRED IN CONFI RMING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.9,59,370/- ON ACCOUNT O F COMMISSION FROM AUTO RICKSHAW FINANCE PROPOSALS BY ADOPTING AV ERAGE RATE OF COMMISSION OF RS. 24,180/- ONLY ON THE GROUND THAT APPELLANT HAS ACCEPTED THE SAME IN THE STATEMENT RECORDED U/S 132 (4) OF THE INCOME TAX ACT, 1961. 2. THE LEARNED CIT (APPEALS) HAS ERRED IN NO T APPRECIATING THE FOLLOWING IMPORTANT FACTS: A. THE APPELLANT HAS PREPARED THE FINANCIAL STATE MENTS ON THE BASIS OF SEIZED PAPERS FOUND IN THE COURSE OF SEARCH. B. THE BOOKS OF ACCOUNTS PREPARED ON THE BASIS OF SEIZED PAPERS WERE AUDITED U/S 44 AB OF THE INCOME TAX ACT, 1961. C. THE APPELLANT HAS SUBMITTED DETAILED AFFIDAVIT WITH THE REASONS AS TO WHY THE STATEMENT GIVEN BY HIM DURING THE COURSE OF SEARCH WAS INCORRECT, D. WHEN THE ENTIRE SEIZED PAPER AVAILABLE WITH TH E DEPARTMENT, THERE IS NO NEED FOR ANY ESTIMATION, E. SUSPICION HOWSOEVER STRONG IT MAY BE, DOES NOT TAKE PLACE OF THE EVIDENCE FOUND DURING THE COURSE OF SEARCH, F. NO DEFECTS IN THE FINANCIAL STATEMENTS PREPARE D BY THE APPELLANT ON THE BASIS OF SEIZED PAPERS WERE POINTED OUT BY THE AO. G. THE ESTIMATION MADE BY THE AO IS NOT AT ALL NE AR TO THE TRUTH AND IS NOT SUPPORTED BY ANY CORROBORATIVE EVIDENCE, H. THE APPELLANT HAS GIVEN THE STATEMENT UNDER IGN ORANCE OF LEGAL AND FACTUAL POSITION. 3. THE LEARNED CIT (APPEALS) HAS, FURTHER ER RED WHILE CONFIRMING THE ADDITION MADE BY THE AO THAT THE DECLARATION PER SE SHOULD NOT BE CONSIDERED AS CONCLUSIVE UNLESS THE AO POSSESS ANY O THER DOCUMENTARY EVIDENCE. 4. WITHOUT PREJUDICE TO GROUND NO. 1 TO 3, T HE LEARNED CIT (APPEALS) FAILED TO ACCEPT THE CONTENTION OF THE APPELLANT TO CONSID ER THE ESTIMATION OF INCOME OF THE ASSESSEE IN THE SIMILAR LINE OF BUSIN ESS, WHERE THE DEPARTMENT HAS ESTIMATED THE INCOME AT RS. 6,558/- PER AUTO RICKSHAW. 5 5. THE LEARNED CIT (APPEALS) IS NOT JUSTIFIE D IN CONFIRMING THE ADDITION OF RS.2,92,771/- TO TOTAL INCOME OF THE APPELLANT O N ACCOUNT OF INTEREST ON FIXED DEPOSIT DISREGARDING THE SUBMISSIONS AND EVID ENCES GIVEN BY THE ASSESSEE. 6. THE LEARNED CIT (APPEALS) HAS ERRED IN CONFIRMIN G THE ACTION OF THE AO IN TREATING THE AGRICULTURE INCOME EXEMPT U/S 10 (1) OF RS. 24,560/- AS TAXABLE INCOME DISREGARDING THE SUBMISSIONS AND EVI DENCES GIVEN. 7. THE LEARNED CIT (APPEALS) HAS FURTHER ERRED IN N OT ADMITTING THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT WIT HOUT ASSIGNING ANY VALID REASON. 8. THE APPELLANT DENIES HIS LIABILITY TO PAY INTERE ST U/SEC. 234B & 234C OF THE INCOME TAX ACT, 1961 AND THEREFORE IT B E DELETED. 9. THE APPELLANT MAY KINDLY BE PERMITTED TO ADD TO OR ALTER ANY OF GROUNDS OF APPEAL, IF DEEMED NECESSARY. 4. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE CIT(A). HE SUBMITTED THAT WHEN DOCUMENTS WERE SEIZ ED BY THE DEPARTMENT THE ASSESSING OFFICER SHOULD HAVE DETERMINED THE INCOME ON THE BASIS OF THE DOCUMENTS SEIZED, DURING THE COURSE OF SEARCH AND S URVEY. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE STATEMENT RECORDED U/S .132(4) OF THE I.T. ACT FROM THE ASSESSEE ON 26-06-2007 AND DREW THE ATTENTION O F THE BENCH TO QUESTION NO.26. HE SUBMITTED THAT THE ASSESSEE IN HIS STATE MENT HAS STATED THAT HE GETS COMMISSION OF RS.20,000/- TO RS.21,000/- PER ONE AU TO RICKSHAW. REFERRING TO THE STATEMENT RECORDED U/S.132(4) OF THE I.T. ACT O N 27-06-2007 DURING THE COURSE OF SEARCH PROCEEDINGS RECORDED FROM THE ASSE SSEE THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO QUESTION NO.27 ACCORDING T O WHICH THE ASSESSEE HAS STATED THAT IN THE BEGINNING HE WAS GETTING COMMISS ION OF RS.14,000/- TO RS.15,000/- PER AUTO RICKSHAW AND NOW HE IS GETTING COMMISSION OF RS.20,000/- TO RS.22,000/-. HE SUBMITTED THAT ALTHOUGH THE ASS ESSEE HAD CATEGORICALLY STATED THAT HE WAS GETTING COMMISSION OF RS.14,000/ - TO RS.15,000/- PER AUTO RICKSHAW IN THE PAST AND NOW HE IS GETTING COMMISSI ON OF RS.20,000/- TO RS.22,000/- THE ASSESSING OFFICER HAS ADOPTED UNIFO RM RATE OF RS.24,000/- PER AUTO RICKSHAW WHICH HAS BEEN UPHELD BY THE CIT(A). HE SUBMITTED THAT BASED 6 ON THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH THE ASSESSEE HAS PREPARED COMMISSION RECEIVED BY THE ASSESSEE, THE DETAILS OF WHICH ARE AS UNDER : A.Y. GROSS COMMISSION DISCLOSED BY THE APPELLANT NO. OF AUTO RICKSHAW SOLD AVERAGE COMMISSION PER AUTO RICKSHAW GROSS COMMISSION CONSIDERED BY THE AO AVERAGE COMMISSION PER AUTO RICKSHAW AS PER AO 2002 - 2003 57,80500 474 12195 11461320 24180 2003-2004 7981000 480 16627 11606400 24180 2004 - 2005 6130000 328 18689 7931040 24180 2005-2006 4192500 217 19320 5247060 24180 2006-2007 5445000 277 19657 6697860 24180 2007-2008 5907750 284 20802 6867120 24180 2008-2009 5061500 227 22,297 5488860 24180 4.1 HE SUBMITTED THAT THE ASSESSING OFFICER AND THE CIT(A) HAVE NOT AT ALL CONSIDERED THE ACCOUNTS PREPARED BY THE ASSESSEE ON THE BASIS OF THE SEIZED DOCUMENTS. THEY HAVE NEITHER REJECTED THE SAME NOR ACCEPTED THE SAME. HE SUBMITTED THAT EITHER THEY HAVE TO ACCEPT THE BOOK RESULTS PREPARED ON THE BASIS OF THE SEIZED DOCUMENTS OR THEY HAVE TO DETERMINE T HE PROFIT ON THE BASIS OF THE STATEMENT RECORDED FROM THE ASSESSEE. THEY CANNOT PICK AND CHOOSE. SINCE THE REVENUE AUTHORITIES HAVE NOT AT ALL CONSIDERED THE SEIZED DOCUMENTS AND THE BOOKS OF ACCOUNTS PREPARED ON THE BASIS OF SUCH DOC UMENTS, THEREFORE, HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTE R MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE SEIZED DOCUMENTS AND DETERMINE THE PROFIT ESPECIALLY WHEN THE NUMBER OF AUTO RICKSHAWS SOLD IS NOT DISPUTED AND THE DISPUTE IS REGARDING THE DETERMINA TION OF THE COMMISSIONER INCOME PER AUTO RICKSHAW. 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND CI T(A) AND SUBMITTED THAT SINCE THE ASSESSEE WAS NOT MAINTAINING REGULAR BOOK S OF ACCOUNTS AND CERTAIN 7 EXPENSES WERE UNVERIFIABLE, THEREFORE, THE RATE ADO PTED BY THE ASSESSING OFFICER BEING VERY REASONABLE THE ORDER OF THE CIT(A) SHOUL D BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS NOT MAINTAINED PROPER BOOKS OF ACCOUNTS. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE IN HIS STATEMENT RECORDED ON 26-06-200 7 AND 27-06-2007 HAD STATED THAT INITIALLY HE WAS GETTING COMMISSION OF RS.14,000/- TO RS.15,000/- PER AUTO RICKSHAW WHICH HAS GONE UP TO RS.20,000/- TO RS.22,000/- DURING THE PERIOD OF SEARCH. HOWEVER, WE FIND THE ASSESSING O FFICER HAS ADOPTED UNIFORM RATE OF RS.24,000/- COMMISSION PER AUTO RICKSHAW FO R ALL THE YEARS UNDER CONSIDERATION WHICH HAS BEEN UPHELD BY THE CIT(A). THIS IN OUR OPINION IS NOT PROPER. WE FURTHER FIND SOME FORCE IN THE SUBMISSI ON OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE LOWER AUTHORITIES ARE NOT JUS TIFIED IN SUMMARILY REJECTING THE ACCOUNTS PREPARED BY THE ASSESSEE ON THE BASIS OF THE SEIZED DOCUMENTS. IN OUR OPINION, THE ASSESSING OFFICER SHOULD HAVE EXAM INED THE VARIOUS DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND UT ILISE THE SAME BEFORE ARRIVING AT THE UNIFORM RATE OF RS.24,000/- COMMISS ION PER AUTO RICKSHAW. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE DOCUMENTS SEIZED DURING TH E COURSE OF SEARCH WHICH CONTAIN DETAILS OF COMMISSION RECEIVED AS WELL AS V ARIOUS EXPENSES INCURRED. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. SINCE THE ISSUE IS IDENTICAL IN OTHER APPEALS ALSO, THEREFORE, 8 FOLLOWING THE SAME RATIO WE RESTORE THE ISSUE TO TH E FILE OF THE ASSESSING OFFICER IN THE OTHER APPEALS. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IN ITA NO.731 AND ITA NO.733 TO 739/PN/2012 ARE ALLOWED FOR STATISTICAL P URPOSES. ITA NO.732/PN/2012 (A.Y. 2001-02) : 8. THE ASSESSEE IN THE ABOVE APPEAL HAS CHALLENGED THE ORDER OF THE LD. CIT(A) IN CONFIRMING PENALTY OF RS.60,020/- LEVIED BY THE ASSESSING OFFICER U/S.271B OF THE I.T. ACT. 8.1 FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSMEN T IN THIS CASE WAS COMPLETED U/S.147 R.W.S.143(3) ON 31-12-2008 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,20,03,700/-. SINCE THE ASSESSEE HA S NOT FILED THE AUDIT REPORT ALTHOUGH HE WAS LIABLE TO GET HIS ACCOUNTS AUDITED U/S.44AB THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSESSEE ASKING TO REP LY AS TO WHY PENALTY U/S.271B SHOULD NOT BE LEVIED. IN RESPONSE TO THE SAME IT W AS SUBMITTED THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME U/S.139 ON 09-04-200 1 DECLARING TOTAL INCOME OF RS.89,410/- AND AGRICULTURAL INCOME OF RS.53,600/-. IT WAS SUBMITTED THAT THE ASSESSEE HAS COMMITTED AN OFFENCE OF NON MAINTENANC E OF BOOKS OF ACCOUNTS, THEREFORE, NO PENALTY U/S.271B CAN BE LEVIED FOR AN OFFENCE U/S.44AA. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED AN AP PEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED U/S.147 R.W.S. 143(3). HO WEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND LEVIED PENALTY OF RS.60,020/- BEING 0.5% OF THE TURNOVER, I.E. GRO SS RECEIPT OF RS.1,20,03,790/. 9 9. IN APPEAL THE LD. CIT(A) UPHELD THE PENALTY LEVI ED BY THE ASSESSING OFFICER. WHILE DOING SO, HE NOTED THAT NON COMPLIA NCE OF PROVISIONS OF SECTION 44AA DOES NOT GIVE IMMUNITY FROM IMPOSITION OF PE NALTY U/S.271B OF THE I.T. ACT 9.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IN APPEAL BEFORE US. 10. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ASSESSEE WAS NOT MAINTAINING PROPER BOOKS OF ACCOUNTS, THEREFORE , THE ASSESSEE IS LIABLE FOR PENALTY U/S.271A AND NOT LIABLE FOR PENALTY U/S.271 B R.W.S. 44AB . HE FURTHER SUBMITTED THAT WHEN UNDER IDENTICAL FACTS THE ASSES SING OFFICER HAS NOT LEVIED PENALTY U/S.271B FOR A.Y. 2002-03 TO 2008-09, THERE FORE, HE IS NOT JUSTIFIED IN LEVYING PENALTY FOR A.Y. 2001-02. RELYING ON VARIO US DECISIONS, PARTICULARLY DECISION OF PUNE BENCH OF THE TRIBUNAL REPORTED IN 99 TTJ 1091 HE SUBMITTED THAT PENALTY LEVIED BY THE ASSESSING OFFICER U/S.27 1B OF THE I.T. ACT AND CONFIRMED BY THE CIT(A) BEING NOT JUSTIFIED SHOULD BE DELETED. 11. THE LD DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE CIT(A). HE SUBMITTED THAT THIS BEING THE FIRST YEAR OF DEFA ULT, THEREFORE, MERELY BECAUSE THE ASSESSING OFFICER HAS NOT LEVIED PENALTY FOR SU BSEQUENT YEARS CANNOT BE A GROUND FOR DELETION OF THE PENALTY FOR THE INITIAL YEAR. FURTHER, LEVY OF PENALTY U/S.271B IS INDEPENDENT OF PENALTY U/S.271A. HE AC CORDINGLY SUBMITTED THAT THE ORDER OF THE LD. CIT(A) BEING IN CONSONANCE WIT H LAW SHOULD BE UPHELD. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT TH E ASSESSEE HAS NOT MAINTAINED 10 PROPER BOOKS OF ACCOUNTS NOR GOT ITS ACCOUNTS AUDI TED U/S.44AB ALTHOUGH HE WAS LIABLE TO GET HIS ACCOUNTS AUDITED SINCE HIS GR OSS COMMISSION RECEIPT WAS MORE THAN RS.40 LAKHS. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE ASSESSING OFFICER HAS NOT LEVIED PEN ALTY FOR OTHER YEARS U/S.271B, THEREFORE, HE IS NOT JUSTIFIED IN LEVYING PENALTY F OR THIS YEAR. WE DO NOT FIND ANY FORCE IN THE ABOVE SUBMISSION OF THE LD. COUNSE L FOR THE ASSESSEE. THIS IS THE FIRST ASSESSMENT YEAR OUT OF 8 ASSESSMENT YEARS WHEREIN THE ASSESSING OFFICER HAS LEVIED PENALTY. IT MAY HAVE SOME BEARI NG ON THE SUBSEQUENT YEARS, BUT NON-INITIATION OF PENALTY FOR OTHER YEARS CANNO T BE A GROUND FOR NOT LEVYING PENALTY FOR THE IMPUGNED ASSESSMENT YEAR. FURTHER, IN OUR OPINION PENALTY U/S.271A AND PENALTY U/S.271B ARE UNDER TWO DIFFERE NT PROVISIONS, THEREFORE, MERELY BECAUSE THE ASSESSING OFFICER HAS NOT LEVIED PENALTY U/S.271A CANNOT BE A GROUND FOR NOT LEVYING PENALTY U/S.271B OF TH E I.T. ACT. SINCE THE ASSESSEE IN THE INSTANT CASE HAS COMMITTED A DEFAUL T U/S.44AB AS HIS GROSS COMMISSION RECEIPT IS MORE THAN THE PRESCRIBED LIMI T, THEREFORE, THE ASSESSEE IS LIABLE FOR PENALTY U/S.271B OF THE I.T. ACT. IN TH IS VIEW OF THE MATTER, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) CONFIRM ING THE PENALTY OF RS.60,020/- LEVIED BY THE ASSESSING OFFICER U/S.271 B OF THE I.T. ACT. WE ACCORDINGLY UPHOLD THE SAME. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY DISMISSED. 13. IN THE RESULT, ITA NO.732/PN/2012 BY THE ASSESS EE IS DISMISSED AND ITA NOS. 731/PN/2012 AND ITA NO.733 TO 739/PN/2012 ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 7 TH DAY OF JUNE, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOU NTANT MEMBER PUNE, DATED : 7 TH JUNE 2013 SATISH 11 COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A) CENTRAL, PUNE 4. THE CIT CENTRAL, PUNE 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE