2014 (12) TMI 1336

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....sted in not getting the accounts audited as provided u/s 44AB of the Act. 2. During hearing the ld. Counsel for the assessee, Shri Subodh Ratnaparkhi advanced his arguments which are identical to the ground raised by submitting that while upholding the penalty the ld. Commissioner of Income tax (Appeals) did not appreciate that the assessee being a forwarding agent, the amounts received as reimbursement of expenses, cannot partake the character of sales, turnover or gross receipts, therefore, the provisions of section 44AB of the Act are not attracted. Alternatively, it was argued that in view of the provisions of section 273B and by taking recourse of reasonable cause which existed in not getting the account audited as provided u/s 44AB....

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....ed limit of Rs. 40 lakhs. It was also contended that as per guidance note No.5.10 (vi), issued by ICAI, gross receipts does not include reimbursement of expenditure. Further, our attention was invited to guidance note No.5.11 (vi) with respect to reimbursement of customs duty and other charges collected by clearing agent 2.3. The ld. Assessing Officer asked the assessee to reconcile and explained the difference between the statement of total income and the figures mentioned the TDS certificate. The assessee explained the same as has been detailed from pages 2 to 7 of the assessment order as per which the gross amount comes to Rs. 4,60,21,743/- on which the assessee paid TDS amounting to Rs. 18,81,599/- . The Assessing Officer calculated ....

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....me   Brokerage Rs. 4,405.32   Transportation Rs.60,532.26     Rs. 64,937/- Total Turnover of the appellant as per profit & loss account Rs.39,21,396/- 2.6. If the aforesaid table is analyzed one clear fact is emerging that the assessee earned commission of Rs. 38,56,459/- and other income from brokerage and transportation if included (Rs. 64,937/-) the total turnover comes to Rs. 39,21,396/-. So far as, showing the total receipt of Rs. 4,98,78,202/- is concerned the amount of Rs. 4,60,21,743/- is on account of reimbursement of customers of sea freight, documentation, insurance and transport charges etc. thus, again the commission comes to Rs. 38,56,459/- as we have discussed earlier. E....