2016 (8) TMI 858

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....rming the penalty of Rs. 21,289 imposed by the Assess ing Officer under section 271B of the Act. 2. That the learned Commissioner of Income-tax (Appeals) has erred in holding that the provisions of section 44AB are applicable to the assessee despite the fact that the assessee was not the professional, i.e., doctor by profession. 3. That the order passed by the learned Commissioner of Income- tax (Appeals) confirming the penalty is perverse in law and on facts. 4. That the appellant seeks leave to add, amend, alter, abandon or substitute any of the above grounds during the hearing of the appeal." 2. The relevant facts of the case are that the assessee declared an income of Rs. 4,15,000. The Assessing Officer taking note of the fact th....

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....mitted that the finding that nothing has been said before the Assessing Officer in the penalty proceedings has been assailed by way of a specific ground which issue has not been addressed by the Commissioner of Income-tax (Appeals). It was also her submission that the assessee by way of a specific ground has stated that she is not a doctor and the explanation offered before the Assessing Officer has been repeated and without discussing the issues the Commissioner of Income-tax (Appeals) has confirmed the penalty order. It was submitted that all along the assessee right from before the Assessing Officer has pleaded that the assessee is an unqualified person who has opened an X-ray-cum-pathological laboratory with the help of technicians, etc....

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....med the penalty order. Section 271B of the Act which has been invoked by the Revenue reads as under : "271B. Failure to get accounts audited.-If any person fails, to get his accounts audited in respect of any previous year or years relevant to an assessment year or furnish a report of such audit as required under section 44AB, the Assessing 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 fifty thousand rupees, whichever is less." 8.1. Section 44AB of the Income-tax Act, 1961, whose violation invites penalty under ....

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....essional qualification and the specific pathological lab was being run with the help of technicians. The said submission is found extracted in page 4 of the impugned order and the fact that such a claim has been made by the assessee all along is not in dispute. We find that this consistent claim has not been rebutted by the Revenue either by any finding or by way of any evidence. We find no good reason on record why the said claim of the assessee should not be accepted. In the absence of any rebuttal thereon, considering the above statutory requirements in the facts and circumstances of the case, we are of the view that without first holding that the assessee was a professionally qualified medical doctor the Revenue cannot avoid the conclus....