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Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
Before: SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM
आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM आयकर अपीऱ सं./ITA Nos.406&407/CTK/2019 (नििाारण वषा / Assessment Years :2012-2013 & 2013-2014) M/s Agarwal Transport Corp. Vs. ITO, Ward-2(1),Cuttack At: Bagha Mangala Lane, Mangalabag, PO: Buxi Bazar,Cuttack-753001 स्थायी लेखा सं./PAN No. : AAFFA 2795 K (अऩीलाथी /Appellant) (प्रत्यथी / Respondent) : ननधाारिती की ओर से /Assessee by : Shri S.N.Sahu & Shri Somnath Sahu, Advocates िाजस्व की ओर से /Revenue by : Shri Subhendu Dutta, DR सुनवाई की तािीख / Date of Hearing : 28/11/2019 घोषणा की तािीख/Date of Pronouncement : 16/12/2019 आदेश / O R D E R Per L.P.Sahu, AM: These two appeals filed by the assessee against the order of CIT(A), Cuttack, dated 07.09.2018 & 31.08.2018 for the assessment years 2012-2013 & 2013-2014. 2. The sole issue involved in both the appeals of the assessee is with regard to confirming the penalty levied u/s.271A of the Act. 3. Brief facts of the case are that the assessee derives income from execution of transportation works in the name & style of ‘M/s Agarwala Transport’ and filed its return of income on 27.09.2012 for the A.Y.2012-2013 declaring total income at Rs.11,61,300/-. Similarly, the assessee filed its return of income for A.Y.2013-2014 on 21.09.2013
2 ITA Nos.406&407/CTK/2018 declaring total income at Rs.10,67,380/-. Both the cases of the assessee
were selected for scrutiny and statutory notices were issued to the
assessee. During the course of assessment proceedings, the AO found
that the assessee has not filed books of account, therefore, the AO
estimated the net profit @1% of the gross transportation receipts and
assessed the total income of the assessee at Rs.38,02,740/- for the
assessment year 2012-2012. Similarly, the AO assessed the total
income of the assessee for assessment year 2013-2014 at
Rs.1,20,76,270/- after estimating net profit @5% of the total gross
receipts. Subsequently, the AO initiated penalty proceedings u/s.271A
of the Act levying penalty of Rs.25,000/- each for both the assessment
years under consideration and passed penalty order accordingly.
Against the penalty proceedings initiated u/s.271A of the Act, the
assessee preferred appeal before the CIT(A), however, the CIT(A)
dismissed the appeals of the assessee observing that in absence of
maintenance of books of accounts as prescribed u/s.44AA of the Act,
the income of the assessee cannot be accurately computed and upheld
the action of AO.
Now, against the above order of CIT(A), the assessee is in further
appeals before the Income Tax Appellate Tribunal.
Before us, ld. AR submitted that the CIT(A) has erred in
confirming the penalty levied u/s.271A of the Act by the AO without
3 ITA Nos.406&407/CTK/2018 rejecting the books of accounts of the assessee u/s.145(3) of the Act. It
was the further contention of ld. AR that the assessee has submitted
the bank accounts, work bill statement and other ledger accounts
before both the authorities below for determination of income of the
assessee. It was also contended that no specific books of account for
contract work business have been prescribed u/s.44AA of the Act read
with rule 6F of the I.T.Rules, 1962. However, without considering the
submission and documents produced by the assessee, levy of penalty
u/s.271A of the Act in both the assessment years under consideration
deserve to be quashed. In this regard, ld. AR relied on the following
case laws :-
i) ACIT Vs. Aggarwal Construction Company, (2007) 107 TTJ (Chd) 623; and ii) Harilal Dhanwani Vs. ITO (1993) 45 TTJ (Del) 437.
On the other hand, ld. DR relied on the orders of authorities
below. He further submitted that the levy of penalty under this section
is mandatory in the case of not maintaining books of accounts. The
assessee could not produce the books of account as required by the AO.
The ld. AO gave opportunity for production of books of accounts in
spite of that he did not comply. As per the section 44AA of the Act, the
assessee is required to maintain the books of accounts. For non-
complying the mandatory provisions, the penalty must be levied.
4 ITA Nos.406&407/CTK/2018 8. After considering the arguments of both the sides and carefully
perusing the entire material available on record, we find that the AO
has levied penalty u/s.271A of the Act for both the assessment years
under consideration taking a view that the assessee was required to
keep and maintain such books of accounts and other documents as may
enable the AO to compute the total income in accordance with the
provisions of the Income-tax Act. As the assessee failed to comply with
the provisions of Section 44AA of the Act by not maintaining the
regular books of accounts, the CIT(A) also confirmed the penalty levied
u/s 271A of the Act . On perusal of the penalty order dated 30.09.2016
for the assessment year 2013-2014, the AO in 2nd para of last page has
mentioned that the Auditor in the Audit Report has certified in Form
3CD that the assessee maintains various books of account viz. cash
book & ledger. In the assessment order also, the AO in para 2.1 noted
that the authorised representative of the assessee appeared and
produced audit report, copy of acknowledgement of e-Return filed,
copies of bank account details, Vakalatanama & copy of Service Tax
Return. However, the only dispute raised by both the authorities below
that the assessee has not produced books of account, whereas the AO
has himself admitted that the return of income filed was accompanied
by audit report and other documents. The assessee has produced the
tax audit report which has been accepted by the AO. The auditor has
5 ITA Nos.406&407/CTK/2018 also certified that the various books have been maintained. The
revenue has not brought any cogent material on record so as to
establish that the assessee has not maintained books and such
documents as required u/s.44AA of the Act or the rules made
thereunder. Therefore, the penalty levied u/s.271A for both the
assessment years under consideration cannot be sustained on the facts
and circumstances of the present case.
On further perusal of the assessment as well as appellate order,
we find that both the authorities below have only pointed out that the
assessee has failed to produce books of accounts before the AO. In this
regard, the assessee has explained with reasonable cause for non-
production of the same before the AO, which has been incorporated in
the assessment order for the assessment year 2012-2013 in para 2.1.,
as under :-
“2.1 In response to the above, the authorized representative of the assessee appeared on 15/12/2014 and produced bank statement, audit report and confirmations from the unsecured loan creditors, details of TDS made on payment of interest to unsecured loan creditors and also proof of payment of outstanding service tax payable amounting to Rs.7,15,404/-. As regards production of books of account as maintained by the assessee, the authorized representative vide his written submission dtd. 15/12/2014 submitted as under :- "In response to your query regarding the production of books of account, the assessee begs to submit that the accountant of the assessee was asked about the books of account. The accountant replied that the books of account are with the auditor, but when the assessee inquired with the auditor about the books of account, the auditor replied that it was returned back immediately after the audit was over. As the books of account are misplaced and are not traceable at present, it is difficult on the part of the assessee to produce the books of account,"
6 ITA Nos.406&407/CTK/2018 Therefore, for this reason also the assessee gets immunity from the
provisions of Section 273B of the Act. In the light of these facts and circumstances of the case, we are of the considered opinion that the CIT(A) was not justified in sustaining the penalty imposed by the AO under Section 271A of the Act for both the assessment years consideration. Accordingly, we set aside the order of the CIT(A) and
cancel the impugned penalty levied for the assessment years 2012- 2013 & 2013-2014. The grounds of appeal of the assessee are accordingly allowed. 10. In the result, both appeals of the assessee are allowed.
Order pronounced in the open court on 16/12/ 2019. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 16/12/2019 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीलाथी / The Appellant- 1. M/s Agarwal Transport Corp. At: Bagha Mangala Lane, Mangalabag, PO: Buxi Bazar,Cuttack-753001 प्रत्यथी / The Respondent- 2. ITO, Ward-2(1),Cuttack आयकि आयुक्त(अऩील) / The CIT(A), 3. आयकि आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT, 5. Cuttack गार्ा पाईल / Guard file. 6. सत्यावऩत प्रनत //True Copy// आदेशािुसार/ BY ORDER,
(Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack