2015 (11) TMI 735

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....in A.Y. 2010-11 in ITA No. 2766/Ahd/2013. 3. Assessee is an individual stated to be engaged in the business of goods transport agency in the name of his proprietary concern M/s. R.K. Transport Company. Assessee filed his return of income for A.Y. 2010-11 on 04.01.2011 declaring total income of Rs. 4,78,250/-. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 31.12.2012 and the total income was assessed at Rs. 4,78,250/-. A.O noted that the gross receipts of the assessee was Rs. 1,82,04,414/- and therefore the Assessee was required to get his accounts audited u/s. 44AB of the Act since the Assessee had failed to furnish the audit accounts, he was of the view that Assessee was liable for penalty u/s. 271B of the Act. He accordingly vide order dated 28.12.2012 levied penalty of Rs. 91,022/- being .5% of the gross receipts as penalty u/s. 271B of the Act. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who dismissed the appeal of the Assessee by holding as under:- 4.5 I have carefully considered the facts of the case and submissions made by the appellant. In this case, penalty u/s. 271B ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e the payment to the appellant by deducting the TDS U/S.194C of the Act treating the same as contract between the two or more. If the nature of the receipts was the commission then the TDS would have been made u/s. 194H of the Act and not U/S.194C of the Act. So the contention of the assessee being commission agent is not true. Moreover, no such details are available to state that the appellant has charged a fixed rate or fixed percentage of the freight amount from the customers as commission. Moreover, the amount charged from party to party might be varied. Hence, it could not be said that the assessee was working as a commission agent. In the Circular No.715 dtd.8.8.1995 of the CBDT (Q.No.6 & 9) it has been held that Lorry Receipt (L.R) was to be treated as a contract between the appellant and the customers and the TDS was to be made as per provisions of Section 194C of the Act. Hence every receipt from the customers was a contract receipt and the same is definitely forming part of the turnover. 4.8. Assessee's contention that it had worked as a Kacha Adatia is also not on the parity for the reason that terms of kacha adatia and pakka adatia are used in the business of tra....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... the assessee has paid the transport charges to the concerned owners of the vehicle. However, the contentions raised by Learned D.R. show that in view taken by the ld. CIT(A) is against the facts available on record. We also notice that the assessee has failed to show that there was reasonable cause in not getting his accounts audited. Accordingly, we are unable to sustain the orders passed by Learned CIT(A). Accordingly, we reverse the orders of the Ld.CIT(A) in both the years and restore the penalty levied by the assessing officer u/s.271B of the Act in both the years. Since we have allowed the appeals filed by the revenue, the cross objections filed by the assessee are liable to be dismissed. " In another case namely Sardarilal Oberoi Vs. ITO 106 TTJ 1033, Hon'ble ITAT, Chandigarh 'B' Bench has also confirmed the same views that the transport receipt were to be included in the total turnover for applying the provisions of Section 44 AB of the Act. 4,10. The A.R. of the appellant has relied upon the judgment of Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Ashoka Dairy which was in support of the reasonable cause but facts of that case are total....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....that they have charged/paid the uniform commission rate from each of the parties and they were not governed by any of the Rules and Laws by which those can be taken at par with the case of share brokers. In the cases of share brokers, no credit of TDS is claimed by them as is being done in the case of appellant. 4.13. The A.R. of the appellant has relied on the cardinal principle of law that penalty is not leviable in a case of debatable issue but the same is not convincing as there cannot be any debate over the gross receipts which has came to the coffers of the appellant and deposited in his bank account and subsequently the payments to various transporters were made therefrom. There is no reasonable cause in view of the provisions of Section 273B which prevented the assessee not to get his books of accounts audited. There can be reasonable cause for a particular year but it cannot be so constantly for all the years. 4.14. Further, appellant's submission that as per the judgment of Hon'ble Supreme Court in the case of CIT Vs. Vegetable Product Ltd. where in the Hon'ble court finds that a language of taxing provision is ambiguous or capable of more meanings than ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aw and on facts in confirming the penalty amounting to Rs. 91,022/- u/s. 271B of the Income Tax Act, 1961. 5. Before us, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and further submitted that Assessee is engaged in the business of transport on commission basis and does not own any trucks and acts merely as a booking agent. He further submitted that Assessee was under a bona fide belief that provisions of Section 44AB were not attracted in his case and the basis of conclusion was Circular No. 452 dated 17th March, 1986 issued by CBDT. He further submitted that the lack of knowledge of what "constitutes turnover" vis-à-vis accounting procedure and provisions of Income Tax Act, 1961 constitute "reasonable cause" within the meaning of Section 273B. He further placed reliance on the various decisions cited before ld. CIT(A) and also the decisions of Co-ordinate Bench of Tribunal in the case of Saiyad Saukatli Saiyadmiya vs. ITO ITA No. 3168/A/2011 order dated 9th May, 2014 which is reported in (2014) 40 CCH 214 Ahd Trib. He also placed on record the copy of the aforesaid order. The ld. D.R. on the other hand supported the order of A.O and ld. CIT(A). ....