P.C. Yadav ORDER
P.C. Yadav, Member (J)
1. Present appeal of the assessee is arising from the order of ld. CIT(Appeals), FNAC, Delhi dated 10.10.2022, having DIN:ITBA/NFAC/S/250/2022-23/1046233110(1) and relates to assessment year 2017-18.
2. The assessee in this appeal has raised six grounds of appeal. Ground Nos. 5 & 6 are general in nature and in rest four grounds, the assessee has challenged levy of penalty of Rs.72,378/- u/s. 271B of the Income Tax Act, 1961.
3. Brief facts, which are relevant for adjudication of the issue are as under :
4. The assessee is a retired army personnel and running a milk booth of Mother Dairy. It is the case of the Revenue that there was a cash deposit of Rs.21,39,000/- in the bank account of the assessee maintained with State Bank of India, Dilshad Garden, New Delhi. It is the observation of the Assessing Officer that the assessee has not filed his return of income for the impugned assessment year. Accordingly, a notice u/s. 142(1) of the Income Tax Act was issued by the Assessing Officer on 23.10.2019, requiring the assessee to furnish certain information/documents. Thereafter, it is observed by the Assessing Officer that the assessee has e-filed his return of income on 24.09.2019 declaring an income of Rs.4,47,350/-. During the course of assessment proceedings, the Assessing Officer, exercising his powers u/s. 133(6), sought information from Mother Dairy Fruits and Vegetables Pvt. Ltd. in respect of the present assessee. In response to the notice of Assessing Officer, Mother Dairy Fruits and Vegetables Pvt. Ltd. provided a copy of one ledger account showing total turnover of Rs.1,44,75,723/- with the assessee. Thereafter, the Assessing Officer applying net profit rate of 1.3% on the total turnover of the assessee, as furnished by Mother Dairy Fruits and Vegetables Pvt. Ltd., computed the income of the assessee.
5. During the course of assessment proceedings, the Assessing Officer has levied penalty, inter alia, u/s. 271B and various other sections of the Income-tax Act. Thereafter, the Assessing Officer vide his order dated 07.10.2021 has levied penalty u/s. 271B on the ground that the assessee failed to get his accounts audited despite the fact that the volume of assessee's turnover was covered by the provisions of section 44AB of the Income Tax Act. The Assessing Officer was of the view that the assessee has violated the provisions of section 44AB and hence liable to be punished u/s. 271B of the Act. Accordingly, the Assessing Officer levied penalty of Rs.72,378/-.
6. Aggrieved with the order of Assessing Officer, the assessee filed appeal before ld. CIT(Appeals) and argued that the observations of the Assessing Officer that the assessee has not filed tax audit report as per Form-3CB is factually incorrect, inasmuch as the assessee has filed tax audit report on 18.09.2019 vide acknowledgement No. 165128511180919. The assessee further contended that the audit report filed by the assessee has not been declared as invalid, though the Assessing Officer has treated the return of income filed by the assessee as invalid. These submissions of the assessee find place in the statement of facts annexed with Form No. 35 filed before ld. CIT(Appeals). Before ld. CIT(Appeals) none appeared on behalf of the assessee despite issuance of four notices by ld. CIT(Appeals). The ld. CIT(Appeals) dismissed the appeal of the assessee vide impugned order.
7. Aggrieved with the order of ld. CIT(Appeals), the assessee is in appeal before the Tribunal.
8. Before us, ld. Counsel for the assesse........