SMT. LEELA DEVI BUMB,BIJAINAGAR vs. INCOME TAX OFFICER, WARD-1, BEAWAR

None has appeared on behalf of the assessee. However, an adjournment application dated 04.07.2020 has been received by the Registry wherein it has been stated that the quantum appeal of the assessee is pending adjudication before the Hon’ble Rajasthan High

Per contra, the ld. DR is heard who has submitted that these are two appeals in the context of levy of penalty u/s 271A and 271B of the Act for non-maintenance of books of accounts and not getting them audited, and thus, have no linkage with the quantum proceedings as stated by the assessee which are pending adjudication before the Hon’ble Rajasthan High Court. It was further submitted that the matter has been fixed for hearing on couple of occasions in the past. However the assessee has sought adjournment and again today an adjournment application has been filed. It was accordingly submitted that the matter may be heard on merits and the adjournment application should be dismissed.

We agree with the contention of the ld. DR that these are not consequential proceedings which are dependent on the outcome of the appeal in quantum proceedings which is pending adjudication before the Hon’ble Rajasthan High Court. These are independent proceedings u/s 271A and 271B of the Act which can be heard independent of the quantum proceedings.

Further, we note that the matter has been listed before the Tribunal in the past for the first time on 15.06.2020 wherein the matter was adjourned for today. Therefore, this is only the 2nd hearing which is scheduled before the Bench.

Given that the assessee was under wrong impression that these are consequential penalty proceedings which are dependent on outcome of quantum proceedings and also the fact that the matter has not been decided on merit by the ld. CIT(A), in the interest of justice, we are of the view that the assessee deserves one more opportunity and deem it appropriate to set-aside the matter to the file of the ld CIT(A) who shall decide the same on merits after providing reasonable opportunity to the assessee. While deciding the matter, the ld CIT(A) shall also consider the recent decision of this Bench in case of Shri Santosh Kumar vs ITO (ITA No. 1093/JP/2019 dated 03.07.2020) wherein on identical issue, the Tribunal has considered the guidance note of ICAI in respect of tax audit u/s 44AB wherein the turnover or gross receipt in respect of speculative transactions has been considered as some total of positive and negative outcome of the speculative transactions and not volume of the transactions as well as prescribed threshold of turnover or gross receipt for tax audit as prescribed u/s 44AB of 4 & 1079/JP/2018 Smt. Leela Devi Bumb vs. ITO the Act relevant for the impugned assessment year. The assessee is also directed to appear before the ld. CIT(A) and is at liberty to file necessary paper book as so advised and ensure in timely completion of the appellate proceedings as so directed by the ld. CIT(A).