DUGGAL & SONS BUILDWELL (P) LTD.,FARIDABAD vs. ACIT, CENTRAL CIRCLE- 4, NEW DELHI
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Income Tax Appellate Tribunal, DELHI ‘E’ BENCH,
Before: SHRI SAKTIJIT DEY, & SHRI NAVEEN CHANDRA
PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:-
This appeal by the assessee is preferred against the order of the
ld. CIT(A)-23, New Delhi dated 30.12.2018 pertaining to A.Y. 2016-17.
The solitary grievance raised by the assessee reads as under:
“in case the quantum appeal is allowed at any stage by the appellate authorities, the penalty appeal will be allowed qua quantum has been deleted”.
Briefly stated, the facts of the case are that the assessee is
engaged in the business of sale and purchase of property. A search and
seizure operation was conducted on MAPSKO group of cases u/s 132 of
the Income-tax Act, 1961 [the Act, for short] on 29.12.2015. Original
return was filed on 25.03.2017 declaring NIL income which was
processed u/s 143(1) of the Act.
During the course of scrutiny assessment proceedings, the
Assessing Officer held that during the year under consideration, the
assessee being in the business of real estate, had a turnover of Rs.
2,03,29,400/- which is in excess of limit as prescribed u/s 44AB of the
Act and the assessee has failed to get the accounts audited as required
u/s 44AB of the Act. Accordingly, penalty proceedings u/s 271B of the
Act were initiated separately.
Penalty notice u/s 271B of the Act was issued on 30.12.2017 to
which the assessee replied vide e-mail. Not satisfied with the reply of
the assessee, the Assessing Officer imposed penalty of Rs. 1,01,647/-
u/s 271B of the Act.
Aggrieved, the assessee went in appeal before the ld. CIT(A) who
sustained the order of the Assessing Officer.
We have heard the rival submissions and have carefully perused
the relevant material on record. We find that the assessee is into real
estate business. The Assessing Officer, during the assessment
proceedings u/s 143(3), came to the conclusion that the assessee has
sold its stock in trade at Rs. 2,03,29,400/- of property at Unitech
Signature Tower, 910 & 911. The Assessing Officer, after reducing the
cost of purchases amounting to Rs. 1,36,78,792/-, added the
difference of Rs. 66,50,608/- to the income of the assessee.
On the basis of the assessment made, the Assessing Officer held
that as the turnover of the assessee exceeded the limit prescribed u/s
44AB, the assessee is liable for levy of penalty u/s 271B of the Act for
failure to get the accounts audited as required u/s 44AB of the Act
which was confirmed by the ld. CIT(A).
Before us, the ld. counsel for the assessee vehemently stated
that, the quantum addition has been quashed by the co-ordinate bench
of the Tribunal in assessee’s own case vide order ITA-1828/Del/2019
dated 19.01.2021 and, therefore, the penalty order does not survive.
Per contra, the ld. DR relied upon the orders of the first
appellate authority.
After carefully considering the submissions of both the rival
representatives, we are inclined to agree with the assessee’s
contention that as the assessment order has been quashed and all
additions deleted, hence turnover as determined by the assessing
officer does not survive on which the penalty u/s 271B of the Act has
been calculated and accordingly, the penalty levied is deleted.
In the result, the appeal of the assessee in ITA No.
1990/DEL/2019 is allowed.
The order is pronounced in the open court on 30 .04.2024.
Sd/- Sd/-
[SAKTIJIT DEY] [NAVEEN CHANDRA] VICE PRESIDENT ACCOUNTANT MEMBER Dated: 30th APRIL, 2024.
VL/ Copy forwarded to:
Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi
Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order
