R.K.AGRAWAL,J. - (1.) THE Income Tax Appellate Tribunal, Delhi has referred the following question of law under Section 256(1) of the Income -tax, Act, 1961 (hereinafter referred to as 'the Act') for opinion of this Court. Whether the Income Tax Appellant Tribunal was justified in holding that question does not arise of getting the account audited as the assessee was not maintaining any books of account ignoring the fact that Section 44AB is a separate and mandatory provision and has no inter -link with Section 44AA of the Income Tax, Act, 1961?
(2.) THE reference relates to the assessment years 1987 -88 to 1989 -90. Briefly stated the facts giving rise to the present reference are as follows: The assessee -firm deals in the sales and purchase of tractors and its spares. During the assessment year 1987 -88, assessee has filed its return showing an income of Rs. 32,000. Along with return of income the assessee has not attached any documents, except one challan of advance tax of Rs. 1,500. Assessment was completed under Section 143(3) of the Act. The returns of assessment years 1988 -89 and 1989 -90 had been filed on 17 -3 -1990, proceeding of which has been completed under Section 143(1)(a) of the Act. These returns also did not accompany any document, i.e., trading account, profit and loss account and balance sheet, etc. During the course of assessment proceedings, certain queries were raised from Sales Tax Department and from the Escort Ltd. from where the assessee had made purchases of tractors and its spares. The sales of the assessee as per the Sales Tax Department for the assessment years 1987 -88 to 1989 -90 are as under: Assessment year 1987 -88 Rs. 63,31,508 Assessment year 1988 -89 Rs. 1,13,01,855 Assessment year 1989 -90 Rs. 1,14,41,807 Since the turnover of the assessee exceeded rupees forty lakhs in each of the three assessment years i.e., 1987 -88, 1988 -89 and 1989 -90, penalty proceedings under Section 27IB of the Act were initiated and later on the same were imposed as below: Assessment year 1987 -88 Rs. 31,657 Assessment year 1988 -89 Rs. 56,509 Assessment year 1989 -90 Rs. 57,290
(3.) AGGRIEVED , the assessee went in first appeal before the Commissioner (Appeals), who vide his common dated 27 -10 -1995 has cancelled the penalty so imposed by the assessing officer for each of the three assessment years on the ground that there were no books of account with the appellant for the above three assessment years and when there were no books of account, the question of their auditing does not arise. Thereafter, the department preferred appeals before the Tribunal. After taking into consideration on the entire conspectus of the case the Tribunal held as under: I have heard the Learned Departmental Representative and have perused the records. Undisputedly, the assessee is not maintaining books of account. Commissioner (Appeals) verified this fact with reference to sales tax records also. When there are no books of account, the question of their audit does notarise. If there is any fault in the matter, the said fault can be examined with reference to non -maintenance of Books of Account. There are certainly no defaults for not obtaining the said Audit Reports for years under consideration. The requirement of audit is in relation to the books maintained. When there are no books, there is nothing to audit. I have perused the impugned orders. In my opinion the Commissioner (Appeals) took a correct view in the matter and his order calls for no interference.;