SERAJ YUSHA,BHUBANESWAR vs. DCIT, CIRCLE-1(2), BHUBANESWAR

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ITA 72/CTK/2017Status: DisposedITAT Cuttack05 September 2019AY 2010-115 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that Section 44AB is a mandatory provision requiring audit for businesses with turnover exceeding Rs. 60 lakhs. The fact that the assessee offered the entire income to tax without claiming expenditure does not provide immunity from the penalty. Therefore, the penalty levied under Section 271B was upheld.

What were the facts?

The assessee received commission exceeding Rs. 60 lakhs in two assessment years but failed to get their books of account audited as required by Section 44AB of the Income Tax Act. The Assessing Officer levied a penalty under Section 271B for this non-compliance.

What were the issues?

Whether the assessee is liable for penalty under Section 271B for failure to comply with the mandatory audit requirement under Section 44AB, despite offering the entire income to tax.

Which sections of the Income-tax Act were involved?

Section 44AB,Section 271B

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK

Before: SHRI CHANDRA MOHAN GARG & LAXMI PRASAD SAHU

For Appellant: Shri Sunil Mishra, AR
For Respondent: Shri S.M.Keshkamat, CIT, DR
Hearing: 05/09Pronounced: 05/09

per provisions of section 44AB of the Act, the assessee is required to audit

his books of account if turnover exceeds Rs.60 lakhs, which has not been

complied by the assessee. Therefore, the immunity from penalty cannot be

allowed to the assessee merely because the entire amount received by the

assessee has been offered to tax without claiming any expenditure or

deduction therefrom.

7.

We have heard rival submissions and perused the record of the case.

For proper adjudication of the case, we find it appropriate to reproduce

relevant of provisions of section 44AB of the Act, which reads as under:

“44AB. Every person,—

(a) carrying on business shall, if his total sales, turnover or gross receipts, as the case may be, in business exceed or exceeds one crore rupees in any previous year; or

(b) carrying on profession shall, if his gross receipts in profession exceed 51[fifty] lakh rupees in any previous year; or

(c) carrying on the business shall, if the profits and gains from the business are deemed to be the profits and gains of such person under section 44AE or section 44BB or section 44BBB, as the case may be, and he has claimed his income to be lower than the profits or gains so deemed to be the profits and gains of his business, as the case may be, in any previous year; or

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(d) carrying on the 52[profession] shall, if the profits and gains from the 52[profession] are deemed to be the profits and gains of such person under section 44ADA and he has claimed such income to be lower than the profits and gains so deemed to be the profits and gains of his profession and his income exceeds the maximum amount which is not chargeable to income-tax in any previous year; or

(e) carrying on the business shall, if the provisions of sub-section (4) of section 44AD are applicable in his case and his income exceeds the maximum amount which is not chargeable to income-tax in any previous year,

get his accounts of such previous year audited by an accountant before the specified date and furnish by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed .”

8.

Section 271B reads asunder: “271B. If any person fails, without reasonable cause, to get his accounts audited in respect of any previous year or years relevant to an assessment year or obtain a report of such audit as required under section 44AB, the Income-tax Officer may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent. of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of one hundred thousand rupees, whichever is less”.

9.

On a conjecture reading of provisions of section 44AB and Section

271B of the Act, we noted that it is a mandatory provision that the assessee

should get his books of account audited having turnover of more than

Rs.60 lakhs. In the present case, undisputedly, the admitted facts are that

the gross receipts of Rs.64,16,667/- and Rs.67,51,712/- for the assessment

years 2010-11 & 2011-12 and the assessee did not audit his books of

account during the relevant financial period. We are unable to see any

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ITA Nos. 72 & 73/CT K/2017 Asse ssment Year :20 10- 11 & 2 011 -12

safeguard in the said provisions in a situation when the assessee has

shown entire income/receipts without claiming any expenditure or

deduction. Therefore, the contention of ld A.R. of the assessee is devoid of

any merits and same is dismissed.

10.

In the result, appeals of the assessee are dismissed.

Order pronounced on 5 /09/2019.

Sd/- sd/- (Laxmi Prasad Sahu) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 5 /09/209 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Seraj Yusha, N-4/135, IRC Village, Nayapali, Bhubaneswar

2.

The Respondent. ACIT, Circle 1(2), Aayakar Bhavan, Rajaswa Vihar, Bhubaneswar 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT- 2, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//

By order

Sr.Pvt.secretary ITAT, Cuttack

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