Jharkhand High Court
A-One Batteries Pvt. Ltd. vs Deputy Commissioner Income Tax on 28 April, 2011
Equivalent citations: 2011 (3) AIR JHAR R 197, (2011) 3 JCR 1 (JHA)
Author: Prakash Tatia
Bench: Prakash Tatia, D.N.Upadhyay
Tax Appeal No. 24 of 2000
with
Tax Appeal No. 26 of 2000
with
Tax Appeal No.27 of 2000
with
Tax Appeal No.29 of 2000
with
Tax Appeal No.31 of 2000
...........
In the matter of an appeal under Section 260A of the Income Tax Act,1961 ......
M/s A. One Batteries Private Limited,Ranchi ..... Appellant
( in all cases)
Versus
The Deputy Commissioner of Income Tax,
Special Range, Ranchi .... Respondent
( in all cases)
...
For the Appellant : Mr.Ajay Poddar
For the Respondent : M/s Deepak Roshan,Sr.S.C.(I.Tax),
Amit Kumar and Rupa Kumari
PRESENT
THE HON'BLE MR.JUSTICE PRAKASH TATIA
THE HON'BLE MR.JUSTICE D.N.UPADHYAY
------
By Court- Since common question of law has been raised in these appeals, therefore,
they are being decided by this common judgment.
2. The assessee was saddled with the penalty under Section 271-A of the Income Tax Act, 1961( hereinafter referred to as the 'Act' ) which provides that in case if any person fails to keep and maintain any such books of account and other documents as required by Section 44AA or the rules made thereunder, in respect of any previous year or to retain such books of account and other documents for the period specified in the said rules, the Assessing officer or the Commissioner(Appeals) may direct that such person shall pay , by way of penalty a sum of twenty five thousand rupees .
3. In nutshell, the appellant's premises was surveyed by invoking Section 133A of the Act of 1961. The assessee's statement was recorded under purported power given under sub-clause (iii) sub-section(3) of Section 133A. Those statements were also relied upon for imposing penalty by the Assessing Officer. The Assessing Officer, by the impugned order, not only observed that the assessee in the said statement categorically admitted that no books of account of the Company have been maintained but also observed that the assessee company has not filed the 2. audited accounts alongwith the return of income for the assessment year in question. However, inspite of the notice to the appellant for imposition of penalty, the appellant did not produce books of account to substantiate his contention that he was maintaining the books of account as required under Section 133A.
4. According to the learned counsel for the appellant, the Commissioner of Income Tax(Appeals) has given cogent reasons for holding that the imposition of penalty against the appellant cannot be sustained. The learned counsel for the appellant drew our attention to the observation of the C.I.T.(Appeals) made in the order dated 27th September, 1996, wherein, it has been observed that the provision of that Section 44AA(2)(i) is applicable in the case of appellant, which requires for keeping and maintaining books of account and other documents to enable the Assessing Officer to compute his total income in accordance with the provisions of the Act. However, according to the C.I.T(Appeals), unlike the persons covered by Section 44AA(i) read with Rule 67, no prescription has been given as to the nature of books of account, which were required to be maintained by an assessee.
5. It appears that such plea was raised before the CIT(Appeals) and thereafter the CIT(Appeals) observed that certificate of auditor was produced wherein it has been stated that the appellant was maintaining the books of account and that has not been assailed by the Assessing Officer. In view of the above reasons as well as in view of reason that the statement recorded under clause (iii) of sub- section(3) of Section - 133A, different views than the statement recorded under Section 132(4) of the Act,1961 have been taken
6. Learned counsel for the appellant in support of his contention that the statement recorded of the assessee could not have been based and could not have been relied upon, in view of the Division Bench judgment of Delhi High Court , delivered in the case of Commissioner of Income Tax vs. Dhingra Metal Works, reported in (2010) 236 CTR(Del) 621 and judgment of the Madras High Court and Kerala High Court , delivered in the cases of Commissioner of Income Tax vs. S.Khader Khan Son, reported in (2008) 214 STR(Mad) 589 and Paul Mathews & Sons vs. Commissioner of Income Tax reported in (2003) 181 CTR (Ker) 207 respectively and also relied upon the judgment of Hon'ble Supreme Court , delivered in the case of Pullangode Rubber Produce Co. Ltd. Vs. State of Kerala and another reported in 3. (1973) 91 ITR 18(SC).
6. The learned counsel for the Revenue drew our attention to the reasons given by the Tribunal for setting aside the order passed by CIT(Appeals) and submitted that the order of the CIT(Appeals) was rightly set aside by the Tribunal by giving cogent reasons. It is also submitted that it is a case of appreciation of the evidence by the authorities below and therefore once the conclusion has been arrived at by the court below, there arises no question of law in this appeal. The learned counsel for the Revenue also drew our attention to the facts on the basis of which it was contended that the Assessing Officer as well as Tribunal have rightly reached to the conclusion that the appellant was not maintaining the books of accounts , as required by law.
7. We have considered the submissions of both the parties and perused the reasons given in the impugned order as well as the facts of the case.
It is not in dispute that a survey was conducted and during course of survey the statement of the assessee's authorized person was recorded, wherein, he had categorically stated that the assessee was not maintaining the books of account and that statement was not denied and retracted, therefore it was admitted case that books of account were not maintained and even in present proceedings where the issue was with respect to maintaining of the books of account by the assessee, the assessee at his risk did not produce the books of account, therefore, at the time of passing of the order by the Assessing Officer, the Assessing Officer had the statements, recorded during course of survey and coupled with the fact that, that was not denied by the appellant-assessee at any point of time and thereafter he did not produce the books of account. It may be true that the evidentiary value of the statement recorded under Section 133A (3)(iii) may be different than the statement recorded during the course of search and seizure under Section 132(4) because of the reason that under sub-section(4) of Section 132 the authorised officer is empowered to examine the person on oath where under sub-clause (iii) of sub-section(3) of Section 133A only statement can be recorded but not on oath.
8. Be that as it may, in the present case, the Assessing Officer as well as the Tribunal have not relied solely on the said recorded statement of the assessee but have also taken into consideration the circumstantial evidence. It is worth while to 4. mention here that Tribunal in its order dated 25th April,2000 observed that in course of penalty proceedings or the appellate proceedings relating thereto , the cash books and ledger books were not produced for verification as well as no steps were taken by the assessee to get the alleged wrong statement of the author of the statement explained by filing any affidavit or by producing the books of account and audit reports, soon after the survey. Therefore, in fact, this is a case, question of law is not involved but it is a case where the appellant challenged the sufficiency of evidence only and once there is some material, justifying the order passed by the Tribunal, we do not find that in the appellate jurisdiction, this Court should interfere in such matter where penalty has been imposed legally on the basis of cogent reasons.
9. Therefore, we do not find any merit in these appeals. Hence, these appeals are dismissed.
( Prakash Tatia, J.) ( D.N. Upadhyay, J.) Jharkhand High Court at Ranchi The 28th April,2011 G.Jha/ N.A.F.R.