SATYA PRAKASH MUNDRA,JAIPUR vs. ITO, KISHANGARH

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 754/JP/2016 fu/kZkj.k o"kZ@Assessment Year :2011-12 cuke Shri Satya Prakash Mundra, Income Tax Officer, Vs. 1, Dr. Khumbhaj Wali Gali, Kishangarh. Mahaveer Colony, Madanganj, Kishangarh. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADEPM 6302 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Anuradha (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 21/01/2019 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 23/01/2019 vkns'k@ ORDER PER: VIJAY PAL RAO, J.M.

This appeal by the assessee is directed against the order dated 29/06/2016 of ld. CIT(A), Ajmer arising from the penalty order passed U/s 271B of the Income Tax Act, 1961 (in short the Act) for the A.Y. 2011-12. The assessee has raised following grounds of appeal:

1. On the facts and circumstance of the case, the Ld. CIT(A) erred in confirming the penalty of Rs.31,607/- levied by Ld. AO u/s 271B of the Income Tax Act, when the turnover declared by assessee was merely Rs.24,80,995/-, i.e. below the limit prescribed u/s 44AB of the Act. Appellant prays the penalty so levied may please be deleted.

ITA 754/JP/2016_ 2 Satya Prakash Mundra Vs ITO

1.1 That, the Ld. CIT(A) has further erred in confirming the action of Ld. AO of including a sum of Rs.38,40,500/-, alleging the same as undisclosed turnover, to determine the limit prescribed u/s 44AB by ignoring the fact that the said amount was not recorded in regular books of accounts thus could not be considered for levy of penalty u/s 44 AB of the Income Tax Act, 1961.

2. The assessee is individual and proprietor of M/s Star Marbles. The assessee filed his return of income for the year under consideration on 17/10/2011 declaring total income of Rs. 2,95,140/- on the total turnover of Rs. 24,80,995/- U/s 44AD of the Act. The Assessing Officer while completing the scrutiny assessment U/s 143(3) of the Act made addition of Rs. 3,84,050/- by considering the deposits in the bank account of one Shri P.C. Vijayvargiya of Rs. 38,40,000/- as unaccounted sales of the assessee. Thus, the Assessing Officer added 10% of the said unaccounted sale in the assessment proceedings. Since the total turnover was considered by the Assessing Officer at Rs. 63,21,495/- accordingly as per the provisions of Section 44AB of the Act at the relevant point of time, the Assessing Officer held that the assessee has violated the condition of accounts be audited by an accountant before the specified date. The Assessing Officer subsequently initiated the proceedings U/s 271B of the act and levied the penalty of Rs. 31,607/- for violation of provisions of ITA 754/JP/2016_ 3 Satya Prakash Mundra Vs ITO Section 44AB of the Act. The assessee challenged the action of the Assessing Officer before the ld. CIT(A) but could not succeed.

3. Before us, the AR of the assessee has submitted that the Assessing Officer has invoked the provisions of Section 44AB of the Act and consequential penalty U/s 271B by virtue of the addition made by the Assessing Officer on account of deposits in the bank account of Shri P.C.

Vijayvargiya and therefore, the assessee’s turnover as recorded and disclosed in the books of account was not exceeding the limits of Rs. 60.00 lacs as provided U/s 44AB of the Act. He has further submitted that the turnover has not been defined in the Act and hence the same has to be considered in commercial sense and in normal accounting principle.

The turnover for the purpose of Section 44AB of the Act shall be the gross receipts or sale value of the transaction carried on by the assessee and recorded in the books. The Assessing Officer made the addition on the basis of the statement of third person and not on the basis of any unaccounted turnover found on the material or books of account of the assessee. The addition was made merely on the basis of statement of Shri P.C. Vijayvargiya. Thus, the ld AR has submitted that even if the said addition of 10% of the deposits in the bank account of Shri P.C.

Vijayvargiya is made by the Assessing Officer, the same would not automatically attract the provisions of Section 44AB and Section 271B of ITA 754/JP/2016_ 4 Satya Prakash Mundra Vs ITO the Act. In support of this contention, he has relied upon the decision of the Coordinate Bench of this Tribunal dated 27/03/2018 in the case of Nirmal Kumar Joshi & another Vs. ITO in & 74/JP/2018. Thus, the ld AR has submitted that the addition made by the Assessing Officer on the basis of the unaccounted turnover would not attract the penalty provisions U/s 271B of the Act.

ITA 754/JP/2016_ 5 Satya Prakash Mundra Vs ITO of books of account to be audited U/s 44AB of the Act. The Assessing Officer during the survey U/s 133A of the Act conducted in the case of one Shri P.C. Vijayvargiya and others on 06/11/2011 found that Shri P.C.

Vijayvargiya was having bank deposits which according to him was sale consideration of marble traders of Kishangarh. The A.O.proposed to make the addition of 10% of the unaccounted sale of Rs. 38,40,000/- found to be belonging to the assessee. The assessee agreed to the addition of 10% of the said unaccounted sale in the assessment proceedings. Based on the said addition, the Assessing Officer was of the view that the assessee’s turnover has exceeded the limit of Rs. 60.00 lacs as provided U/s 44AB of the Act and consequently the assessee has violated the mandatory condition of his books of account to be audited. The penalty U/s 271B of the Act has been levied by the Assessing Officer due to the reason that there was an addition on account of unaccounted sale. Thus, it is clear that at the time of preparing the books of account, the turnover of the assessee was only Rs. 24,80,995/- and consequently it was not necessary to get the books of account audited as required U/s 44AB of the Act. The A.O. has made the addition based on the survey conducted in the case of one Shri P.C. Vijayvargiya, however, no corresponding material in the possession of the assessee was found by the Assessing Officer to show that at the time of preparing the books of account, the ITA 754/JP/2016_ 6 Satya Prakash Mundra Vs ITO assessee’s turnover was exceeding the limit of Rs. 60.00 lacs as provided U/s 44AB of the Act. Hence, the requirement of audit of the books of account as per Section 44AB of the Act is only in the case when the assessee on its own declared the turnover of more than the minimum amount prescribed U/s 44AB of the Act. The Coordinate Bench of this Tribunal in the case of Nirmal Kumar Joshi & Anr. Vs ITO (Supra) while considering the identical issue has held in para 9 and 10 as under:

“9. We have heard the rival contentions and perused the material available on record. We find that the AO has accepted the income offered in the return of income filed under section 44AD of the Act and at the same time, has brought to tax the undisclosed business receipts of Rs. 43,34,064/- offered for taxation during the course of assessment proceedings. The AO has thus come to a conclusion that since the combined receipts exceed the prescribed threshold of Rs 60 lacs, the assessee has failed to get his books of accounts audited. We find that by accepting the income offered under section 44AD(1), the AO has thus accepted the assessee's eligibility for presumptive basis of taxation under section 44AD. Once the said eligibility is accepted, if we read the provisions of section 44AD and in particular sub-section (5), it clearly provides that an eligible assessee who claims his income from the eligible business is below the presumptive rate of 8% of total turnover or gross receipts, he shall be required to maintain books of accounts and also get them audited and furnish a report as required under section 44AB of the Act. Therefore, only in a scenario, where such a claim is made by the assessee whereby he claims that his income to be lower than 8% of total turnover or gross receipts, he will be required to maintain books of accounts and get them audited. Corresponding provisions are provided in ITA 754/JP/2016_ 7 Satya Prakash Mundra Vs ITO section 44AA(2)(iv) of the Act as well. In the instant case, the assessee has not made any such claim in his return of income. Further, the Revenue has accepted the claim of the assessee as being eligible for such presumptive taxation where the assessee has reported a net profit of 8.09% on total reported turnover of Rs 48,98,269. In such a situation, having not disturbed the said position under section 44AD, it cannot be said that the assessee has failed to get his books of accounted where undisclosed business receipts of Rs. 43,34,064/- are brought to tax during the course of assessment proceedings and whereby the prescribed turnover threshold has been breached. Had the Revenue rejected the assessee's claim under section 44AD of the Act and thereafter, taking into consideration the declared turnover of Rs 48,98,269 and undisclosed business receipts of Rs 43,34,064, had come to a position that the assessee has failed to get offered his books of accounted, that in a such a scenario, the contention of the Revenue could have been accepted. Further, what has been referred in section 44AB is the books of accounts maintained in the regular course of business and where an admission is made by the assessee based on third party statement during the course of survey that the amount found deposited in the bank account belongs to the assessee, it cannot be said that regular books of accounts are maintained even in respect of unaccounted sales or business receipts and the penalty can be levied under section 271B of the Act. In this regard, we refer to the decision of the Coordinate Bench in case of Brij Lai Goyal vs. ACIT (supra) wherein it has been held as under:

"-----11. It is evident from the aforesaid observation that books of account maintained in regular course only make the assessee eligible for grant of immunity from penalty and not with reference to any of such books, which have not been maintained in the regular course of business. Admittedly, the additional sales found as a result of search, was not ITA 754/JP/2016_ 8 Satya Prakash Mundra Vs ITO recorded in the books of account regularly kept in the course of business by the appellant. Merely because the appellant accepted the additional sates for the purpose of assessment of the relevant year on the basis of entries in the seized documents, the same would not constitute accounts of the appellant maintained in the regular course of business and on that basis alone liability cannot be fastened on the assessee by holding him to have committed the default. Furthermore, the word "accounts" has not been defined under the IT Act However, under s. 34 of the Indian Evidence Act, 1872, sanctity is attached to the books of accounts, if the books are indeed "account books”, i.e., in original if they show on their face, that they are kept in the 'regular course of business'. So, the accounts under s. 34 of Indian Evidence Act means accounts which are maintained in the regular course of business. Accordingly we are satisfied that the record carrying entries from which the appellant admits of additional sales are not the accounts as referred to under s. 44AB of the Act. On that basis it was not open to the AO to hold that the sales of the assessee as referred in s. 44AB of the Act have exceeded to Rs. 40 lakhs and by not getting such accounts audited from an accountant, the appellant has committed a default. Such a finding arrived at by the AO is reversed."

The addition made by the Assessing Officer during the assessment proceedings on the basis of unaccounted sale cannot be regarded as the turnover for the purpose of Section 44AB of the act because the documents relied upon by the A.O. are neither the part of books of ITA 754/JP/2016_ 9 Satya Prakash Mundra Vs ITO account nor would substitute the books of account or constitute the books of account of the assessee regularly maintained. Therefore, the books of account maintained by the assessee in regular course of business cannot be substituted by the material gathered by the Assessing Officer in the course of some survey in the case of third party though the said material may be relevant evidence for making the addition to the income of the assessee. Hence, in view of the facts and circumstances and following the earlier decision of this Tribunal, the penalty levied U/s 271B of the Act is deleted.