In the ITAT
C.H. Aboobacker Haji
v.
Income-tax Officer, Ward-2(1), Kannur
N. BARATHVAJA SANKAR,
ACCOUNTANT MEMBER
AND RIYAZ S.
PADVEKAR, JUDICIAL MEMBER
IT APPEAL
NO. 293 (
[ASSESSMENT YEAR
2004-05]
JULY 14, 2006
Section 44AA, read with section 271A, of the
Income-tax Act, 1961 - Maintenance of accounts by certain persons carrying on
profession or business - Assessment year 2004-05 - Whether for applicability of
section 44AA(2), circumstance that Assessing Officer was unable to compute
income of assessee due to non-maintenance of accounts must exist and without
completing assessment, Assessing Officer cannot come to conclusion that he was
unable to compute income of assessee due to non-maintenance of accounts - Held,
yes - Whether, therefore, as per section 44AA(2) only after completion of
assessment, Assessing Officer may initiate proceedings for levy of penalty
under section 271A - Held, yes
Facts
The assessee was a civil contractor. For the assessment year 2004-05, he filed his return of income, estimating his income at the rate of 5 per cent of the total contract receipts. Subsequently, a survey action was initiated at the premises of the assessee, wherein the Assessing Officer found that for the earlier assessment years, he had declared the income at the rate of 8 per cent on the gross contract receipts. During the course of survey, the assessee admitted that he was not maintaining any day book and ledger in respect of the contract work and had kept only separate files with details of the purchases, receipts from contracted department, etc. The Assessing Officer, thus, came to the conclusion that the assessee had violated the provisions of section 44AA and, hence, he initiated penalty proceedings against the assessee under section 271A. On appeal, the Commissioner (Appeals) confirmed the order of the Assessing Officer.
On second appeal, the assessee submitted that the Assessing Officer initiated the penalty proceedings before the completion of the assessment inasmuch as the assessment of the assessee for the relevant year had been completed by the Assessing Officer only on 23-6-2006 whereas he finalized the levy of penalty under section 271A vide order dated 26-7-2005. The assessee further submitted that he was regularly following the same method for declaring his income and merely on basis of his statement recorded during the survey, the Assessing Officer came to the conclusion that there was failure on the part of the assessee to comply with the provisions of section 44AA when, in fact, section 44AA was not applicable.
Held
The instant case was not covered by sub-section (1) of section
44AA. At the most, sub-section (2) of section 44AA might be applicable but for
its applicability, the circumstances that the Assessing Officer was unable to
compute the income of the assessee due to non-maintenance of the accounts must
exist. In the instant case, the Assessing Officer issued the show-cause notice
for levy of penalty under section 274, read with section 271A dated 10-1-2005,
and after more than 17 months, the Assessing Officer completed the assessment.
Without completing the assessment, the Assessing Officer could not have come to
the conclusion that he was unable to compute the income of the assessee due to
non-maintenance of the day book and ledger. Moreover, no specific books of
account have been specified or notified by the Board in respect of contract
business. If the Assessing Officer was of the opinion that he was unable to
compute the correct income of the assessee, then he should have waited at least
for the completion of the assessment and only after completion of the
assessment, he might have reasonably come to the conclusion that due to the
non-maintenance of the books of account on the part of assessee, it was not
possible for him to compute the correct income under the Act. [
It is well-settled principle of law that penalty proceedings
are quasi-criminal in nature and it must be brought on record by the Assessing
Officer that the assessee has deliberately acted in defiance of law or is
guilty of conduct contumacious or dishonest, but in the reasoning given by the
Assessing Officer in the assessment order in question, nothing had been
mentioned. Moreover, the Assessing Officer was in a hurry to levy the penalty
than to complete the assessment. As per section 44AA(2)
only after completion of assessment, Assessing Officer may initiate proceedings
for levy of penalty under section 271A. Merely because there was a survey
action, and that too after the issue of notice to the assessee to levy the
penalty under section 271A, that could not be the ground justifying the levy
under section 271A. Section 44AA is to be interpreted strictly for attracting
the penal consequences. Therefore, the Assessing Officer was not at all
justified in levying the penalty on the facts of the instant case and penalty
levied by the Assessing Officer under section 271A was to be deleted and the
order of the Commissioner (Appeals) was to be set aside. [
In the result, the appeal was to be allowed.
Cases referred to
Hindustan Steel Ltd. v. State of
T.M. Sreedharan for the Appellant.
Smt. A.S. Bindu for the Respondent.