No AI summary yet for this case.
Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: SHRI CHANDRA MOHAN GARG
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER
ITA Nos. 139 & 198/CTK/2018 Assessment Year : 2010-2011
Sri Alok Ranjan Dash, Prop. Vs. ITO, Ward 5(3), M/s. Dash Communications, Bhubaneswar. At.Qr. No.S/95, Rail Vihar, PO: Chandrasekharpur, Maitri Vihar, Bhubaneswar. PAN/GIR No.ALAPD 9221 H (Appellant) .. ( Respondent)
Assessee by : Shri Biraja Keshari Kanungo, AR Revenue by : Shri Subhendu Dutta, DR
Date of Hearing : 06/02/ 2019 Date of Pronouncement : 06/02/ 2019
O R D E R Both the appeals filed by the assessee are against the
separate orders of the Commissioner of Income Tax(Appeals)-2,
Bhubaneswar dated 14.2.2017 and dated 11.7.2017 for the
assessment year 2010-11.
ITA No.139/CTK/2018, the grievance of the assessee, as
emanating from the grounds of appeal, is that the CIT(A) is not
correct and justified in upholding the computation of the Assessing
Officer i.e., in estimating the business profit of the assessee @
P a g e 1 | 9
30% of total amount of commission received of rs.18,14,975/- as
net income of the assessee from commission.
I have heard the rival submission, perused the orders of
lower authorities and carefully gone through the relevant
materials placed on record of the Tribunal. Undisputedly, the
assessee received Rs.3,87,443/- as contract receipts and
Rs.18,14,975/- as commission on total turnover undertaken by
him. The main contention of ld A.R. of the assessee is that the
assessee has earned commission income @ 4% of total turnover
and further sales the SIM card and recharge vouchers through
various retailers and 3% of commission is further extended to
them leaving only 1% commission for the assessee. Ld A.R.
further pointed out that remaining amount of 1% commission is
gross commission income of the assessee out of which
business/revenue expenditure of the assessee has to be allowed.
Ld A.R. submitted that the Assessing Officer was not right in
estimating the business profits of the assessee from commission
@ 30% of total commission receipt as 3% commission, which is
75% of total receipts is further extended to the retailers and out
of remaining 1% commission, the assessee has to incur day to
day business expenditure to operate business activities of the
assessee. Ld A.R,. submitted that therefore, the estimation made
P a g e 2 | 9
by the AO and upheld by the CIT(A) is not correct and justified.
Hence, estimation of commission income should be reduced to
30% of Rs.6,60,725/- as estimated by the Assessing Officer. Ld
A.R, submitted that the assessee is not disputing the stand of the
Assessing Officer that section 44AF is not applicable to the present
case. As the assessee has earned income in the nature of
commission from brokerage, which does not fall within the ambit
of said provison. Further, ld A.R. vehemently pointed out that the
lower authorities cannot ignore the fact that the assessee has to
incur day to day expenditure to operate its business out of
commission income. Lastly, ld A.R,. submitted that the Assessing
Officer may kindly be directed to allow the expenditure and
restrict the commission income estimation to 30% of
Rs.6,60,725/-.
Replying to above, ld D.R. strongly supported the estimation
made by the Assessing Officer as well as the first appellate order
and submitted that the assessee has already been granted
concession of 70% of total commission receipts which is sufficient
to meet the commission amount extended to the retailers as well
as expenditure incurred by the assessee for day to day business
operation. Ld D.R. submitted that the assessee has not
maintained any books of account and there was no documentary
P a g e 3 | 9
evidence showing incurring of expenditure by the assessee for the
purpose of business and for the purpose of earning commission
income. Therefore, the claim of the assessee is baseless and
hence cannot be allowed.
On carefully consideration of the material facts, first of all I
may point out that the total gross contract receipts of the
assessee was Rs.3,87,4543/- on which the Assessing Officer has
applied section 44AD and has estimated income @ 8% of the
contract receipts, which came to Rs.30,995/- and this amount was
added to the income of the assessee leaving balance contract
receipts of Rs.356,448/-, which are sufficient to meet the day to
day business expenditure and other requirements of the assessee.
So far as estimation of 30% of net commission income out of
gross commission receipt is concerned, I am of the considered
view that the AO as well as the CIT(A) has taken a very balancing
view wherein, the Assessing Officer has given concession of 70%
of total commission receipts keeping in view the part amount of
commission which has been extended by the assessee to the
retailers. Therefore, the estimation is based on sound principle of
estimation. At this stage, I may point out that the assessee has
not maintained any books of account and has not submitted any
documentary evidence or facts and figures showing incurring of
P a g e 4 | 9
expenditure for the business purposes which is not covered by the
balance amount of Rs.3,56,448/- and 70% of total commission
receipts which has been kept out by the Assessing Officer from the
taxation ambit. In my humble understanding and reasonable
view, the authorities below have taken into account all possible
aspects of leakage of income and expenditure to be incurred by
the assessee while estimating the net commission income and net
contract receipts. Therefore, no further reduction in the
estimation of business profits is required to be made. I may point
out that on being asked by the Bench, ld A.R. could not specify
any head of expenditure which was actually incurred by the
assessee and is not covered out of the amounts of contract
receipts i.e. Rs.3,56,448/- and 70% of commission receipts, which
has been kept aside out of taxation limits by the authorities below.
Therefore, I reached to a logical conclusion that estimation of net
income is quite correct and justified and the CIT(A) is also right in
upholding the same. No interference is called for with the orders
of lower authorities below. Hence, I uphold the same and dismiss
the ground of appeal of the assessee.
In the result, appeal of the assessee is dismissed.
P a g e 5 | 9
In ITA No.198/CTK/2018, the grievance of the assessee
is that the CIT(A) is not justified in confirming the levy of penalty
of Rs.25,000/- under section 271A of the Act.
I have heard the rival submissions and perused the
materials available on record. Ld A.R. submitted that in view of
the order of the ITAT Chandigarh in the case of ACIT vs Anil
Luthra (2001) 116 Taxman 126(Chd) and Delhi Bench of the
Tribunal in the case of 91 TTJ (Del)26, is it clear that neither the
Act nor the Rule prescribes the type of books of account to be
maintained by the assessee. Therefore, penalty cannot be levied
against the assessee.
Replying to above, ld D.R. supporting to the orders of lower
authorities, submitted that when the assessee has not maintained
any books of account, the authorities below have no alternative
option but to impose penalty. Therefore, same may kindly be
confirmed.
Placing rejoinder to above, ld A.R. submitted that it was the
first year of business of the assessee and the assessee was under
bonafide belief that since he falls within the ambit of provisions of
section 44AF of the Act, therefore, did not maintain any books of
P a g e 6 | 9
account. Hence, penalty imposed by the Assessing Officer may
kindly be cancelled.
Section 273B reads as under: "273B. Notwithstanding anything contained in the provisions of clause (b) of subsection (1) of section 271, section 271A, section 271B, section 271BB, section 271C, section 271D, section 271E, clause (c) or clause (d) of sub section (1) or subsection (2) of section 272A, subsection
(1) of section 272AA or subsection (1) of section 272BB or clause (b) of subsection (1) or clause (b) or clause (c) of subsection (2) of section 273, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was reasonable cause for the said failure."
The above section provides that if the assessee proves that there
is a reasonable cause, he is not subject to levy of penalty. In the
present case, the contention of the assessee is that he was under
Bonafide belief that he is not required to maintain books of
account. Even if it is assumed that the assessee had an obligation
to maintain regular books of account, which he failed to do, the
failure is definitely due to a reasonable cause and the case is
covered under the provisions of section 273B of the Act.
It is well settled principle of law as laid down by Hon’ble
Supreme Court in the case of Hindustan Steel Ltd. Vs State of
P a g e 7 | 9
Orissa, 83 ITR 26(SC), that penalty proceedings are quasi-
criminal in nature and it must be brought on record by the
Assessing Officer that the assessee has deliberately acted in
defiance of law or was guilty of conduct contemptuous or
dishonest but in the reasoning given by the Assessing Officer in
the assessment order, nothing has been mentioned. Therefore, I
am of the considered view that the assessee under Bonafide
belief, had not maintained books of account. Hence, I set aside
the orders of lower authorities and delete the penalty of
Rs.25,000/- u/s.271A of the Act and allow the grounds of appeal
of the assessee.
In the result, appeal of the assessee is allowed.
Order pronounced on 06/02/2019.
Sd/- (Chandra Mohan Garg) JUDICIALMEMBER Cuttack; Dated 06/02/209 B.K.Parida, SPS
P a g e 8 | 9
Copy of the Order forwarded to : 1. The Appellant : Sri Alok Ranjan Dash, Prop. M/s. Dash Communications, At.Qr. No.S/95, Rail Vihar, PO: Chandrasekharpur, Maitri Vihar, Bhubaneswar
The Respondent. ITO, Ward 5(3), 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
P a g e 9 | 9