BUDHARAM M. DEWASI, MUMBAI v. ITO 24(1)(3), MUMBAI

ITA 1680/MUM/2010 | 2008-2009
Pronouncement Date: 19-01-2011 | Result: Allowed

Appeal Details

RSA Number 168019914 RSA 2010
Assessee PAN AGRPD9122H
Bench Mumbai
Appeal Number ITA 1680/MUM/2010
Duration Of Justice 10 month(s) 16 day(s)
Appellant BUDHARAM M. DEWASI, MUMBAI
Respondent ITO 24(1)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 19-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 19-01-2011
Assessment Year 2008-2009
Appeal Filed On 04-03-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH(AM) AND SHRI VIJAY PAL RAO (JM) ITA NO.1680/M/2010 ASSESSMENT YEAR 2008-09 SHRI BUDHARAM M. DEWASI THE ITO 24(1)(3) 565 VA;MAO JIT EMT COLONY C-13 5 TH FLOOR PRATYAKSHAKAR BHAVAN G.B.LANE OPP. ORLEM BANDRA (E) MUMBAI 400 064 MALAD (W) MUMBAI 400 064. PAN : AGRPD9122H APPELLANT RESPONDENT ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SHRI NARESH KUMAR BALODIA O R D E R PER RAJENDRA SINGH (AM) THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 30.12.09 OF CIT(A) FOR THE ASSESSMENT YEAR 2008-09. THE ONLY DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING PENALTY LEVIED UNDER SECTION 271A OF THE INCOME-TAX ACT FOR NON MAINTENANCE OF BOOKS OF ACCO UNT. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE AO DURING THE ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD DECLARED TOTAL INCOME OF RS.2 10 000/-. THE AO OBSERVED THAT THE ASSESSEE DI D NOT MAINTAIN BOOKS OF ACCOUNT AS WAS CLEAR FROM THE RETURN OF INCOME WHIC H HE WAS REQUIRED TO DO AS THE INCOME EXCEEDED RS.1 25 000/-. THE AO THEREFOR E ISSUED A SHOW-CAUSE NOTICE ASKING THE ASSESSEE TO EXPLAIN AS TO WHY PEN ALTY SHOULD NOT BE LEVIED 2 UNDER SECTION 271A AND AS PER THE AO NO EXPLANATION WAS RECEIVED. THE AO THEREFORE LEVIED PENALTY OF RS.25 000/- IN APPEAL T HE ASSESSEE SUBMITTED THAT HE WAS A SMALL GOLDSMITH MAINLY ENGAGED IN JOB WORK . HE HAD NO CAPACITY TO MAINTAIN BOOKS OF ACCOUNT BUT THE BOOKS HAD BEEN MA INTAINED THROUGH A PART TIME ACCOUNTANT. HE HAD RECEIVED LABOUR CHARGES OF RS.3 28 759/- AND SALES WERE TO THE TUNE OF RS.4 50 000/- TOTALING TO RS.7 78 759/- WHICH WAS BELOW RS.10 LACS. THE ASSESSEE THEREFORE REQUESTED THAT T HE PENALTY SHOULD BE DELETED. CIT(A) HOWEVER OBSERVED THAT THE PENALTY W AS LEVIABLE IF NO ACCOUNTS IS MAINTAINED IN CASE THE INCOME EXCEEDS RS.1 25 00 0/- OR TURNOVER EXCEEDS RS.10 LACS AS PER SECTION 44AA(2)(I). HE THEREFORE CONFIRMED THE LEVY OF PENALTY AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. BEFORE US THE LEARNED AR FOR THE ASSESSEE SUBMIT TED THAT THE ASSESSEE HAD SUBMITTED BEFORE CIT(A) THAT THE ACCOUNTS WERE MAINTAINED THROUGH A PART TIME ACCOUNTANTS ON WHICH THERE IS NO ADVERSE FINDI NG BY CIT(A). THE PENALTY HAS BEEN LEVIED ON MECHANICALLY. THE LEARNED DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF CIT(A). 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE IS REGARDING LEVY OF PENALTY UNDER SECTION 271A FOR NON MAINTENANCE OF BOOKS OF ACCOUNT. UNDER THE PROVISIONS OF SECTION 4 4AA ANY PERSON WHOSE INCOME EXCEEDS RS.1 25 000/- OR THE TURNOVER EXCEED S RS.10 LACS IS REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND NON COMPLIANCE IS LIA BLE FOR PENALTY UNDER SECTION 271A. IN THIS CASE THE ASSESSEE HAD SUBMITT ED BEFORE CIT(A) THAT ACCOUNTS HAD BEEN MAINTAINED THROUGH A PART TIME AC COUNTANT BUT THE CIT(A) DID NOT CONSIDER THE SAME AND CONFIRM THE PENALTY. THE CLAIM OF THE ASSESSEE THAT THE ACCOUNTS WERE MAINTAINED THROUGH A PART TI ME ACCOUNTANT HAS NOT 3 BEEN CONTROVERTED BEFORE US BY PRODUCING ANY MATERI AL. THEREFORE ON THE FACTS OF THE CASE LEVY OF PENALTY IS NOT JUSTIFIED. THERE FORE THE ORDER OF CIT(A) IS SET ASIDE AND THE PENALTY IS DELETED. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. 5. THE ORDER WAS PRONOUNCED IN OPEN COURT ON 19.01. 2011. SD/- SD/- ( VIJAY PAL RAO) (RAJEN DRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 19.01.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) MUMBAI CONCERNED 4. THE CIT MUMBAI CITY CONCERNED 5. THE DR B BENCH ITAT MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI ALK