S. 44 AA
1. Who are the persons that are required
to compulsorily maintain books of account ?Every person carrying on
legal, medical, engineering or architectural profession, or professionof
accountancy or technical consultancy or interior decoration or any
otherprofession as is notified by
the CBDT are mandatorily required to keep and maintain such books of account
anddocuments as
may enable the AO to compute his total income in
accordance with the provisions of the I.T. Act.
Authorised
representatives, Film Artists, Company Secretaries and Profession of Information and Technology have
been notified by the CBDT as notified professions.
2. What are the prescribed books of
account and documents to be kept and maintainedunder
S.44AA(3) by person carrying on specified profession ?Rule 6F prescribes books
of account ot be maintained by specified persons.
6F(2) –
professionals
a) Cash book
b) Journal, in case of mercantile system of accounting.
c)
Ledger
d)
Carbon copies of bills serially numbered in case of bills or receipts of Rs.
25/- and more
e) Original Bills and receipts in respect of expenditure.
Payment vouchers in case of bills and receipts not
issued and the expenditure do not exceed Rs. 50/- (Vouchers may not be prepared if the cash book mentioned contains adequate
particulars in respect of expenditure incurred.)
‘Cash book’ means
a record of all cash receipts and payments, kept and
maintained from day to day and giving the cash balance in hand at the end of each day or at
the end of a specified period not exceeding a month.
6F(3)-Medical
Professional’s- in addition to above-
a) A daily case register in Form No. 3C
b)
Inventory Register of stock of drugs, medicines and other
consumable accessories.
3. Where are the specified books of
account and other documents to be kept ?Rule
6F(4) states that for
other than those relating to a previous year which has come to an end the specified books of account
and other documents shall be kept and maintained by the
person at the place where he is carrying on the profession or, where the profession is carried at multiple places, at the
principal place of his profession.
Where
person keeps and maintain separate books in respect of each place of profession carried on, such books and other documents may be kept and maintained at the
respective places.
4. For what period should the books of
account etc to be kept ?Rule 6F(5)- w.e.f 4-2-2002 the specified
books of account shall be kept and maintained for a period of six years from
the end of the relevant assessment year.
However,
if assessment is reopened u/s 147 within period
specified in section 149, then all books and documents which were kept and maintained at the
time of reopening shall be retained till the reopened assessment is completed.
5. Whether
persons carrying on a non-specified profession or carrying on business arerequired to
compulsorily maintain books of account ?Every person carrying on
business or aprofession (not a
specified profession) whose total income exceeds Rs.1 ,20,000 or his total
sales/gross receipts from such business or profession exceeds Rs. 10,00,000 in any of the 3 years
immediately preceding the relevant previous year.
In case
of newly setup business books of account required to be maintained if it is
likely to exceed the above mentioned limits.
No
specific books and records are specified for the category. However they hare
required to maintain such books of account and other documents as may enable the assessing officer to
compute their taxable income under Income Tax Act.
6. Will
the non maintenance of stock register by an assessee carrying on business
amountto contravention of S.44AA ?No books of account were
specified by CBDT for the above class of persons. S.44AA provides assessee
shall maintain such books of account as will enable the Assessing Officer to
compute his business income. Sujan
Singh vs AO (2007) 110TTJ(ASR) 818 & ITO v Dinesh Paper Mart 70 ITD 274 (Nag).
7. Will
the person carrying on a specified profession whose gross receipt does not exceed
Rs.1,50,000 in any one of three preceding previous years be required to
maintain books of account ?Every person carrying on a specified profession is required to maintain books of
account to enable the Assessing Officer to compute the total income irrespective of his gross receipts in
all the three preceding previous years exceed Rs.1 ,50,000. However if his
gross receipts in all the three preceding previous years exceed Rs.1 ,50,000 or
if it is a new profession and it is likely to exceed Rs.1
,50,000 in that previous year shall be liable to maintain specified books of account as per Rule
6F.
8. Are
assesses covered under S. 44AD & 44AE required to maintain books of account
?An assessee carrying on a business and covered u/s 44AD, 44AE
claims that the income from the said business is lower than the deemed profits
or gains computed under the above relevant sections, then the assessee shall
keep and maintain such books of account and other documentsas may enable the Assessing
Officer to compute the total income in accordance with provisions of I.T.
Act.
w.e.f
AY 2011-12, where profits and gains of assessee from business are deemd to be
profits and gains of the assesssee under section 44AD and claims such income to
be lower than the deemed profits and his income exceeds the maximum amount
which is not chargeable to income-tax during such previous year, he shall keep
and maintain such books of account and other documents as may enable the Assessing Officer to
compute his total income.
9. What are the consequences of failure to keep accounts ?
S.271A
prescribes penalty provisions for failure to keep and maintain books of
account, etc., and also for not retaining them for the prescribed period. The
quantum of penalty imposable is Rs.25,000.
In Mehta
Parvesh v ITO (1998) 60 TTJ 278 (Del –Trib) and
in ITO v. Papelal Gaur (1994)
49 TTJ (Nag-Trib) 126 it was
held that No penalty can be levied if it is possible for the assessing officer
to compute the total income based upon the documents though the books of account were not
maintained.
In C.H.
Aboobacker Haji v. ITO (2007) 109 TTJ (Coch-Trib) 408, it was held that the assessing
officer cannot come to the conclusion that he was unable to compute the income
of the assessee due to the non-maintenance of the day book and ledger without
completing the assessment. Hence
penalty u/s 271 A cannot be levied unless the assessment is completed.
Summary of 44AA:
|
Category
|
Applicable Persons
|
Books to be maintained
|
|
Cat “A”
|
Specified Professions- Gross Receipts
does not exceed Rs.1 ,50,000 in any of the 3 preceding years |
Such books of accounts as may
enable the AO to compute the total income. No books prescribed. |
|
Cat “B”
|
Specified Professions- Gross Receipts
exceed Rs.1 ,50,000 in all the 3 preceding years |
Books as prescribed in Rule 6F
to be maintained. |
|
Cat “C”
|
Non Specified profession or business- if
income does not exceed Rs. 1,20,000 AND the total turnover does not exceed Rs.1 0,00,000 in ALL the 3 preceding years. |
No need to maintain any
books.
|
|
Cat “D”
|
Non Specified profession or business- if
income exceeds Rs. 1,20,000 OR the total sales, turnover or gross receipts
exceed Rs.1
0,00,000 in any of the 3
preceding years. And also includes
assesses covered u/s 44AD and 44AE. |
No books prescribed by the
board. But should maintain the books so as to enable the AO to compute the total income. |
10. Who are the persons who are compulsorily required to get
their accounts audited?
According to S. 44AB, every person carrying on business shall,
if his total sales, turnover or gross receipts, as the case may be, in business
exceed Rs.100 Lacs (Rs.60 Lacs upto A.Y. 2012-13) in any previous year, get his
accounts of such previous year audited by an Accountant before
the specified date
and furnish by that date
the report of such audit in the prescribed form, duly signed and verified, by
such accountant and setting forth such particulars as
may be prescribed.In case of a person carrying on profession, the provisions are
applicable if his gross receipts in professionexceed
Rs.25 Lacs (Rs.15 Lacs upto A.Y. 201 2-1 3) in any previous year.
Further,
if any person who is carrying on the business and covered u/s 44AE, 44BB or
44BBB and claims that his income from the said business is lower than the
deemed profits and gains shall have to get his accounts audited.
Similarly,
every person carrying on the business shall, if the profits and gains from the
business are deemed to be the profits an gains of such person u/s 44AD and he
has claimed such income to be lower than the profits and gains so deemed to the
profits and gains of his business and his income exceeds the maximum amount
which is not chargeable to income-tax in any previous year, get his accounts of
such previous year be audited.
CEILING ON TAX AUDITS
11. What is
the ceiling for Number of tax audit assignments that can be accepted by a CA ?A. As
per Notification dated 13.12.1989 published in Part III section 4 of the
Gazette of India dt.04.02.1989 bearing No. 1-CA(7)/3/88 Explanation 1, In the
case of a CA in practice or a proprietory firm, 30 tax audit assignments, in a
financial year, whether in respect of corporate or non corporate assesses. In
the case of a firm of CAs in practice, 30 tax audit assignments per partner in
the firm, in a financial year whether in respect of corporate or non corporate
assesses.
The limit of 30 tax audits has been enhanced to 45 in the ICAI
Central Council’s 268th meeting
held from 30th April to 2nd May 2007.
12. Whether
audit of branches are counted separately for the ceiling ?A. As
per the above mentioned notification, Explanation 4 states the audit of the
H.O. and branch office of a
concern shall be regarded as one tax audit assignment. As per explanation 5 the audit of one or more
branches of the same concern by one CA in practice shall be construed as only
one tax audit assignment.
13. When
audit for F.Y. 2011-12 and F.Y. 2012-13 are conducted during September
2013,whether both are counted for the ceiling for the no. Of audit assignments
during F.Y. 2013-1 4.A. As
per the Notification mentioned above, a CA in practice shall be deemed to be
guilty of professional misconduct, if he accepts more than 45 tax audit
assignments in a financial year.
As per explanation 2 of the above mentioned notification“ in
computing the specified number of
tax audit assignments each year’s audit would be taken as a separate assignment.
14. Whether
audit u/s 44AB (c) and (d) i.e. 44AD & 44AE audits are counted for the
ceiling of audit assignments ?A. As
per para 9.16 of Guidance Note on Tax Audit u/s 44AB of the Income Tax Act, a
member of the institute in
practice shall be deemed to be guilty of professional misconduct if he accepts in a financial year more than
30 tax audit assignments or such other limit as may be prescribed by ICAI from time to time
u/s 44AB. Further, as per a council decision, audits of accounts of persons
carrying on business covered by sections 44AD, 44AE or 44AF or 44BB or 44BBB is
not included in the aforesaid limit.
15. How the ceiling is computed in respect of CA partnership
firms where the partner is also a
partner in another CA firm.
A. As per the 2nd proviso
to the Notification, where any partner of the firm is also a partner of any
other firm or firms of CAs in practice, the number of tax audit assignments
which may be taken for all the
firms together in relation to such partners shall not exceed the specified number of tax audit assignments in the
aggregate.
As per the jd proviso to the Notification,
where any partner of a firm of CAs in practice accepts one or more tax audit
assignments in his individual capacity, the total number of such assignments which may be accepted
by him shall not exceed the “specified number of tax audit assignments” in the
aggregate
S.44AB
16. Whether Tax audit is applicable for commission Agents. What
does CBDT Circular No.452 clarify ?
A. The CBDT has advised that so far as kachha arahtias are
concerned, the turnover does not include the sales effected on behalf of the
principals and only the gross commission has to be considered for the purpose
of section 44AB. But the position is different with regard to pacca arahtias. A
pacca arahtia is not, in the proper sense of the word, an agent or even del
credere agent. The relation between him and his constituent is substantially
that between the two principals. On the basis of various court pronouncements,
the following principals of distinction can be laid down between a kachha
arahtia and a pacca arahtia :
(i) a kachha
arahtia acts only as an agent of his constituent and never acts as a principal.
A pacca arahtia, on the other hand, is entitled to substitute his own goods
towards the contract made for the constituent and buy the constituent’s goods
on his personal account and thus he acts as a principal as regards his
constituents.
(ii) A
kachha arahtia brings a privity contract between his constituent and the third
party so that each becomes liable
to the other. The pacca arahtia, on the other hand, makes himself liable upon
the contract not only to the third party but also to his constituents.
(iii) Though
the kachha arahtia does not communicate the name of his constituent to the third party, he does communicate the
name of the third party to the constituent. In other words, he is an agent for an unnamed
principal. The pacca arahtia, on the other hand, does not inform his constituent
as to the third party with whom he has entered into a contract on his behalf.
(iv) The
remuneration of a kachha arahtia consists solely of commission and he is not interested in the profits and losses
made by his constituent as is not the case with the pacca arahtia.
(v) The
kachha arahtia, unlike the pacca arahtia, does not have any dominion over the goods.
(vi) The
kachha arahtia has no personal interest of his own when he enters into a transaction and his interest is
limited to the commission agent’s charges and certain out of the pocket expenses, whereas, a pacca
arahtia has a personal interest of his own when he enters into a transaction.
(vii) In the event of any loss, the kachha arahtia is entitled
to be indemnified by his principal as
is not the case with pacca arahtia.
The above distinction between a kachha arahtia and pacca arahtia
may also be relevant fordetermining the applicability of section 44AB in cases
of other type of agents. In the case of agents
whose position is similar to that of kachha arahtia, the turnover is only the commission and does not include the
sales on behalf of the principals. In the case of agents of the type of pacca
arahtia, on the other hand, the total sales/turnover of the business should be
taken into consideration for determining the applicability of the provisions of
section 44AB of the Income Tax Act .
17. An educational institution not for profit motive having
Rs.100.0 Lacs of Gross Receipts iswhether liable for tax audit ? What will be
the situation if the Gross Receipts exceedRs.100.0 Lacs ? What will be the
effect if it is a Coaching Center ?
A. It is found
that the provision of section 44AB shall be applicable only to
certain persons who fulfill the following conditions:
(i) must be
a person under the Income Tax Act.
(ii) must
carry on business or profession.
(iii) must
maintain books of account.
(iv) whose
profits or gains are from business or profession.
(v) whose
profits or gains are computable under Chapter IV.
(vi) whose
objects are to earn profit/gain from business/profession and income is taxable or loss allowable under the
Act.
(vii) whose income to be lower than the profits or gains so
deemed under sections 44AD, 44AE
and 44AF.
Where income of assessee is exempt under section 10, then it is
not required to obtain audit report
under section 44AB and is thus not liable for penalty under section 271B as was
held in Asstt. CIT v. India
Magnum Ltd. (2002) 81 ITD 295 (Mum-Trib)
In Case the Gross Receipts exceed Rs. 100.0 Lacs the institution
needs to obtain registration
either under section 12A of the income tax act or under section 10(23)(c)(vi).
In case the institution is registered u/s 12A then audit report in Form 10B has
to be filed and in case the institution is registered u/s 10(23C)(vi) then
audit report in Form 10BB has to be filed.
If the institution happens to be a coaching centre run for
profit motive, then audit u/s 44AB needs to be carried out by a Chartered
Accountant.
18. Mr. X, an individual has a sole proprietorship firm having
turnover of Rs.110.0 Lacs for the financial year 201 2-13 and his taxable
income is Rs.1,20,000. Is it mandatory for him to file the return of income for the
A.Y. 2011-12. What will be the situation if he incurs loss consisting of business loss of
Rs.1,00,000 and Depreciation loss of Rs.50,000 ?
A. Para
6.1 of the revised Guidance Note on tax audit issued by the ICAI states that
even if the income of a person is below the taxable limit laid down in the
relevant Finance Act of a particular year, he will have to get his accounts
audited and to furnish such report under section 44AB, if his turnover in
business exceed Rs.100.0 Lakhs.
The
existing provisions under sections 1 39(6A) and 271 B allow interpretation
contrary to the legislative intent of getting the accounts audited by the
specified date. With a view to set the controversies at rest, the provisions of
sections 44AB, 139 and 271 B have been recast so as to make them effective. The
provisions of section 44AB have been amended to ensure that tax audit is
completed by the specified date and the audit report is furnished by that date
irrespective of the fact that the return of income has been furnished or not by
that date. However, the return whenever furnished shall be accompanied by a
copy of the audit report and proof of filing the same by the specified date.
Wherever
the audit report has been furnished before filing of the return, non furnishing
of a copy of such report along with the return of income will only be a defect
under section 139(9) which can be rectified.
Consequential
amendments have been made in section 271 B to provide penal action for not
getting the accounts audited or failure to furnish the audit report by the
specified date. These amendments take effect from 1-7-1995.
No
where it has been mentioned that the return shall be filed by an assessee who
gets his books of account audited u/s 44AB. But as per section 139, a company,
firm needs to mandatorily file its return of income irrespective of the income.
19. A transport contractor having 6 trucks
is having gross receipts of Rs.105.0 Lacs for the F.Y. 2010-11. Is he liable
for the tax audit ?A. Section 44AB does not contain any condition for
tax audit of assessees engaged in transport
operations (of goods) where the gross receipt exceeds Rs. 100 lakhs. Only where
the assessee offers income below the presumptive limit prescribed in section
44AD or section 44AE, the accounts have to be audited under section 44AB.
The thrust of section 44AE for computing income in the case of
assessees engaged in the business of plying, hiring or leasing goods carriages
is the number of vehicles and not the aggregate of receipts. In the absence of
a provision similar to that of proviso to section 44AD (1) even where the
assessee has aggregate annual receipt exceeding Rs. 100 lakhs the accounts need
not be audited under section 44 AB so long as the assessee offers income as per
the presumptive quantum prescribed in section 44AE. Only where the assessee
offers income below the presumptive limit given in section 44AE irrespective of
the quantum of receipt, the accounts have to be audited under section 44AB.
20. Mr. A is running a business and his
sales for the F.Y. 201 2-13 is Rs.97.00 Lacs. He had interest income of Rs.3.00
Lacs and Rental receipts of Rs.2.00 Lacs and Dividend income of Rs.1 .00 Lac.
During the year there was a sale of fixed assets for Rs.5.00 Lacs. Is he liable
for the tax audit ?A. As per Guidance note on tax audit issued
by the ICAI, the term “gross receipts” is also not defined in the Act. It will
include all receipts whether in cash or in kind arising from carrying on of the
business which will normally be assessable as business income under the Act.
However, following observations of the ICAI are noteworthy.
Items of income not forming part of the term “gross receipts in
business”
(a) Sale
proceeds of fixed assets
(b) Sale
proceeds of assets held as investments
(c) Rental
income unless the same is assessable as business income
(d) Dividends
on shares except in the case of an assessee dealing in shares
(e) Income
by way of interest unless assessable as business income
(f) Reimbursement
of customs duty and other charges collected by a clearing agent
(g) In the case of a travelling agent, the amount received from
the clients for payment to the airlines, railways, etc., where such amounts are
received by way of reimbursement of expenses incurred on behalf of the client.
If, however, the travel agent is conducting a package tour and charges a
consolidated sum for transportation, boarding and lodging and other facilities,
then the amount received from the members of group tour should form part of
gross receipts. Similar is the case in respect of advertising agent.
Thus the principle to be applied is that if the assessee is
merely reimbursed for certain expenses
incurred, the same will not form part of his gross receipts. But in the case of charges recovered, which are not by
way of reimbursement of the actual expenses incurred, they will form part o his gross receipts
as per para 5.12
In view of the above, Mr. A is not liable for tax audit as his
turnover has not reached Rs.
100.0 Lacs.
21. Mr. B is having three businesses during the financial year
2012-13. One is a retailbusiness having sales of Rs.80.0 Lacs. He is owning 7
trucks from which receipts were Rs.30.0 Lacs. The other business wholesale and
the gross receipts are Rs.35.0 Lacs. Mr. B wants to opt u/s 44AD for the first
business and u/s 44AE for the second business. Advice Mr. B whether he is
liable for tax audit. What will be the position in case the other business
(wholesale) gross receipts are only Rs.1 5.0 Lacs?
A. In cases where the assessee carries on more than one business
activity, the results of allbusiness activities should be clubbed together. In
other words, the aggregate sales, turnover and/or gross receipts of all
businesses carried on by an assessee would be taken into consideration in
determining whether the limit of Rs. 100.0 Lacs as laid down in this section
has been exceeded or not. However where the business is covered by sections
44AD and 44AE and the assessee opts to be assessed under the respective
sections the turnover thereof shall be excluded.
Section 44AB provides that every person carrying on business
shall if his total sales turnover orgross receipts, in business exceed Rs.
100.0 Lacs in any previous year get the accounts of previous year audited. If a
proprietor carries on multiple businesses the combined turnover of which exceed
Rs. 100.0 Lacs then such a proprietor will be required to get his accounts
audited as the limit will apply with reference to assessee and not with
reference to businesses.
Before introduction of new section 44AD, there were presumptive
taxation in respect of 44AF, 44AD and 44AE. If the assessee having turnover
more than 60.0 Lacs including the turnover/gross receipts from businesses
falling under the category of 44AF, 44AD and 44AE, and if he opts to declare
the deemed profits from such businesses, then the turnovers belonging to the
presumptive taxation will not be considered for the purpose of arriving at the
turnover for audit u/s 44AB.
As per the amended section 44AD only the business u/s 44AE,
person earning income in the nature of commission or brokerage or a person
carrying on any agency business and a person carrying on profession as referred
to in sub-section (1) of section 44AA are not eligible businesses and the
turnover from all other businesses (excepting profession, agency, commission or
brokerage and 44AE business if assessee opts under presumptive taxation) needs
to be clubbed together for arriving at the turnover limit specified u/s 44AB.
In view of the above, Mr. B is liable for tax audit as the total
turnover exceed Rs. 100.0 Lacs even
after opting for presumptive taxation for income from owning and hiring of
trucks under section 44AE. If the gross receipts of the third business are Rs.
15.0 he is not liable for tax audit provided he agrees for an estimated profit
of 8% on the aggregate of 1st and
3rd business else
liable to tax audit u/s 44AB(d)
In case the third business is not a business but profession he
will still be liable for audit as the professional receipts have exceeded
Rs.25.0 Lacs. If the receipts from profession are only Rs. 15.0 Lacs he will
not be liable for the audit provided he declares 8% on the turnover of the
first business and declares the deemed profits u/s 44AE for the trucks.
22. Mr. Y’s
sales during the F.Y. 2012-13 is
Rs.101.0 Lacs which includes Rs.2.50 Lacs ofVAT amount collected. Is he liable
for Tax Audit ?A. The answer to the question whether VAT collected can be
included in the sales for the purposes of section 44AB lies in the method of
accounting followed by the assessee. If the VAT collected is included, in the sales then the
same will be included. But if the VAT collected is credited to a separate VAT
account and payment made to authorities is debited directly to VAT account the
the VAT collected may not be included in sales for the purposes of section
44AB.
23. To whom
the tax audit is not applicable ?Section 44AB prima facie is applicable only if
the assessee has business or profession and the income therefrom is chargeable
to tax. Where the income from business or profession is not chargeable to tax
then the provisions of section 44ABcannot
be applied. Chapter III of the Income Tax Act, 1961, deals with incomes which
will not form part of the total income of the assessees. Following are the
incomes in respect of which section44AB will
not be applicable.
(i) Agricultural income [Section 10 (1)]
(ii) Any income received by an individual
as member of HUF [Section 10(2)]
(iii) Share income of a partner from the
firm [Section 1 0(2A)]
(iv) Income of any authority constituted in
India by or under any law for the purpose of dealing with and satisfying the
need for housing accommodation or for the purpose of planning, development or
improvement of cities, towns and villages or for both [Section 1 0(20A)].
(v) Any institution, trust or a society
registered under Societies Registration Act, 1860 for the purpose of development of khadi or
village industries or both and not for purposes of profit to the extent the income is
attributable to the business of production, sale or marketing of khadi or
products of village industries [Section 10 (23B)]
(vi) Educational institutions and hospitals
not substantially financed by the government even if the aggregate annual receipt
exceeds Rs. 40 lakhs provided such institutions are not run for the purpose of profit and are
intended to serve solely educational or medical treatment purposes as the case may be.
[Section 1 0(23C) (iiiad) and (iiiae)].
(vii) A mutual fund registered under the
Securities and Exchange Board of India Act, 1992 and such other mutual fund set up by a
public sector bank or a public financial institution as notified by the Central Government
(Section 10(23D). Asstt.CIT v. India Magnum Fund
(2002) 27 DTC 864 (Mum-Trib) : (2002) 81 ITD 295 (Mum-Trib).
(viii) Exchange Risk Administration Fund set
up by public financial institution either jointly orseparately as the Central
Government may notify in the official gazette. [Section 1 0(23E)]
(ix) Any income of Credit Guarantee Fund
Trust for Small Scale Industries being a trustcreated by the Government of
India and SIDBI for a period of five years from the assessment year 2002-03 to
2006-0 7. [Section 1 0(23EB)]
(x) Income of venture capital companies or
venture capital funds covered by section 1
0(23FB).
(xi) Income of any corporation established by the Central
government for the purpose of promoting
the interest of the members of a minority community. [Section 10(26 BB)]
24. Mr. P is
having turnover of Rs.120.0 Lacs during the F.Y. 2010-11. He had not maintained the books of account. Whether both the
penalties u/s 271 A and 271 B attracts? Advice.Maintenance
of accounts is envisaged under section 44AA and on failure to do so the
assessee shall be guilty and
liable to be penalised under section 271A. Even after maintenance of books of
account the obligation of the assessee does not come to an end. He is required
to dosomething more, i.e., by getting the books of account audited by an
accountant. But when a person commits an offence by not maintaining the books
of account as contemplated by section 44AA the offence is complete. After that
there can be no possibility of any offence as contemplated by section 44AB and
therefore, the imposition of penalty under section 271B is erroneous.
In view of the above, only penalty u/s 271A can be levied.
However the income may be estimated
by the AO.
25. XYZ
& Co., a partnership firm had commenced the business during the F.Y.
2012-13. The purchases during the
year are 200.0 Lacs. Sales during the year are Rs.80.0 Lacs. Is the firm liable
for tax audit ?A. In the “Guidance Note on Terms Used in Financial
Statements”published by the ICAI, the expression “Sales turnover”has been
defiened as under: : The
aggregate amount for which sales
are effected or services rendered by an enterprise. The terms gross turnover and net turnover (or gross sales and net sales) are
sometimes used to distinguish the sales aggregate before and after deduction of
returns and trade discounts.
Similarly, the following note appears under the heading “sales”
in the Statement on AuditingPractices” issued by the ICAI
Sales include sales of all products manufactured by the company
including by-products. It iscustomary to show sales of scrap, etc., under the
heading “Miscellaneous Income”. It is important
to remember that no adjustment should be made in the Sales Account which does
not relate to sales. Similarly adjustment in respect of sales tax and/or excise
duty should not normally be made in the Sales Account. Trade discount is a
valid deduction from sales but not commission allowed to third parties on sales
to customers.”
The Lordship Mrs.Sujata v. Manohar and D.P. Wadhwa J.J dismissed
the special leave petition filed by the Department against the judgment dated
27/03/1996 of the Bombay High Court in ITA No. 924 of 1995, whereby the High
Court rejected the reference application of the Department on the question
whether the Tribunal was right in holding that the return filed by the assessee
on 30th October, 1991, for the A. Y. 1991-92 was in time as it was under
obligation to get its accounts audited in view of its purchases being in excess
of Rs. 40 lakhs and turnover connoted Sales or Purchases?[Chief CIT v. Vijay
Maheshwari HUF C.C. No. 7819 of 1997 (228 ITR 157 (SC))].
26. What is meant by turnover, sales & gross receipts ? What
is the turnover for a persondealing in shares and derivatives for the purpose
of S.44AB.
The
word sales , turnover and gross receipts are commercial terms and they should
be construed in commercial sense and in accordance with the normal rules of
accountancy.
The
section refers to the assessee’s total sales, turnover or gross receipts. They
should not be of anyone else. If the assessee makes sale and receives the sale
price for and on behalf o another, then such a sale may not be taken into
account for determining the limit of Rs.100.0 Lacs. (For example assess acting
as an agent of another person).
The
sales, turnover or gross receipts should be in business of the assessee. If the
sale or a receipt is not connected with the business, it is not to be taken
into account for determining the limit of Rs.1 00.0 Lacs.
Sales,
turnover and gross receipts are not mutually exclusive concepts
For
considering the limit of Rs.100.0 Lacs all the three items i.e. sales, turnover
and gross receipts should be taken together and not each item separately. The
expression gross receipt is wide enough to include sale proceeds and
consideration for rendering services. For example, if an assessee effects sales
of Rs.95.0 Lacs on his own and he effects sales as the agent of a third party
from which he derives gross commission of Rs.1 0 Lacs, then the gross receipts
would be Rs.65.0 Lacs and he would be covered by this section.
As per para 5.11 of the Guidance Note on Tax Audit, the turnover
or gross receipts in respect of transactions in shares, securities and
derivatives may be determined in the following manner:
Speculative transaction : A
speculative transaction means a transaction in which a contract for the
purchase or sale of any commodity, including stocks and shares, is periodically
or ultimately settled otherwise than by the actual delivery or transfer of the
commodity or scrips. Thus, in a speculative transaction, the contract for sale
or purchase which is entered into is not completed by giving or receiving
delivery so as to result in the sale as per value of contract note. The
contract is settled otherwise and squared up by paying out the difference which
may be positive or negative. As such, in such transaction the difference amount
is turnover. In the case of an assessee doing speculative transaction s there
can be both positive and negative differences arising by settlement of various
such contracts during the year. Each transaction resulting into whether a
positive or negative difference is an independent transaction. Further, amount
paid on account of negative difference paid is not related to the amount
received on account of positive difference. In such transactions though the
contract notes are issued for full value of the purchased or sold asset the
entries in the books of account are made only for the difference. Accordingly,
the aggregate of both positive and negative differences is to be considered as
the turnover of such transactions for determining the liability to audit vide
section 44AB.
Derivative, Future and Options: Such transactions are
completed without the delivery of shares or securities. These are also squared
up by payment of differences. The contract notes are issued for the full value
of the asset purchased or sold but entries in the books of account are made
only for the differences. The transactions may be squared up any time on or
before the striking date. The buyer of the option pays the premia. The turnover
in such types of transactions is to be determined as follows:
(i)
The total of favourable and unfavourable differences shall be taken as
turnover.
(ii)
Premium received on sale of options is also to be included in turnover.
(iii)
In respect of any reverse trades entered, the difference thereon, should also
form part of the turnover.
Delivery based transactions: Where the transaction
for the purchase or sale of any commodity including stocks and shares is
delivery based whether intended or by default, the total value of the sales to
be considered as turnover.
27. The following activities whether fall under business or
profession ?
(a)
Advertising Agents
(b)
Travel Agent
(c)
Courier
(d)
Nursing Home
(e)
Insurance Agent
(f)
Stock & Share broking
(g)
Money lending
(h)
Recruiting Agent (i) Person engaged in preparing computer software programming
A. As
per para 4.4 of Guidance Note on Tax Audit issued by ICAI, the above activities
fall under the category of Business.
28. Mr. S a Cine Artist has receipts of Rs.27.0 Lacs during the
F.Y. 201 2-13 as a Cine Actor. He is having a business and his gross receipts
during that year are Rs.62.0 Lacs. Is he liable for audit u/s 44AB. What will
be your answer in case if his receipts as an Actor are Rs.1 1.0 Lacs and his
gross receipts from business are Rs.54.0 Lacs.
A. A question may arise in the case of an assessee carrying on
business and at the same time engaged in a profession as to what are the limits
applicable to him under section 44AB for getting the accounts audited. In such
case if his professional receipts are, say rupees 27.0 lacs but his total sales
turnover or gross receipts in business are, say rupees 32.0 lacs, it will be
necessary for him to get his accounts of the business audited because the gross
receipts from the profession exceed the limit of rupees 25.0 lacs. If however,
the professional receipts are, say, rupees 21.0 lacs and total sales turnover
or gross receipts from business are say, rupees 84.0 lacs it will not be
necessary for him to get his accounts audited under the above section, because
his gross receipts from the profession as well as total sales, turnover or
gross receipts from the business are below the prescribed limits as per the
Guidance Note on Tax audit issued by ICAI.
29. Mr. C is having turnover of Rs.62.0 Lacs during the F.Y.
2011-12. During the F.Y. 201 2-13his turnover is Rs.98.0 Lacs. He made a
payment of interest to Mrs. C amounting to Rs.2,00,000 during the year. Is he
liable to deduct tax u/s 194A ? What will be the position if the turnover
during F.Y. 2011-12 is Rs.59.0 Lacs and turnover during F.Y. 2012-13 is Rs.102.0
Lacs ?
A. Proviso to sub-section 1 of S. 194A states that “Provided
that an individual or a HUF, whosetotal sales, gross receipts or turnover from
the business or profession carried on by him exceed the monetary limits
specified under clause (a) or clause (b) of section 44AB during the financial
year immediately preceding the financial year in which such interest is
credited or paid, shall be liable to deduct income-tax under this section.”
In view
of the above mentioned proviso, TDS needs to be made by Mr. C for the F.Y. 201
2-13 as the turnover during F.Y. 2011-12 is R.62.0 Lacs which exceeded the
limit prescribed u/s 44AB.. In case the turnover for the F.Y. 2011-12 is
Rs.59.0 Lacs, TDS need not be made though the turnover during the F.Y. 2012-13 exceeded
the limit prescribed u/s 44AB (applicable only for Individuals and HUF).
30. What are the salient features of S.44AD ?
The
Salient features of S.44AD are
a. The
scheme is applicable only to an Individual, a HUF or partnership firm who is a
resident and not applicable to LLP, a company assessee or AOP/BOI etc and also
not applicable to non residents and not ordinarily residents. It shall also not
be applicable to the eligible assessee availing deductions u/s 1 0A, 1 0AA, 1
0B. 1 0BA and any provision of Chapter VI-A with deductions in respect of
certain incomes.
b. The scheme is applicable to all the businesses excepting
business covered under section 44AE which has maximum gross turnover/gross
receipts of Rs.1 00 Lacs.
c. Either 8% of the total turnover or gross receipts or a sum
higher than the aforesaid sum claimed to have been earned by the eligible
assessee shall be deemed to be the profits and gains of such business.
d. Any deduction allowable under sections 30 to 38 shall be
deemed to have been already given effect to and no further deduction under
these sections shall be allowed. However, where the eligible assessee is a
firm, the salary and interest paid to its partners shall be deducted from the
income computed as per the limits specified in section 40(b).
e. The WDV value of any asset shall be deemed to have been
calculated as if the depreciation is actually allowed.
f. Assessee opting for the above scheme shall be exempt from
payment of advance tax.g. Assessee opting for the above scheme shall be exempt
from maintenance of books of accounts required u/s 44AA.
31. Mr. X has turnover of Rs.100 Lacs. He informs that his
income is only Rs.1,20,000. Whether he needs to 1. maintain the books of
account 2. Audit his accounts 3. Furnish the
return of income. In case if he does not maintain books of account, does not
get his accounts audited and does not furnish the return of income, what will
be the consequences ?
Upon plain reading of sections 44AA (2) (iv), 44AB (d) and
44AD(5) and from some of the experts view “that
an assessee with turnover below 100 Lacs, who shows an income below the presumptive rate prescribed
under the provisions, will in case his total income exceeds the taxable limit, be required
to maintain books of accounts as per section 44AA(2)
and also get them audited and furnish a report of each such audit as required under section 44AB ”.Basing
upon the above consideration in respect of the above case, he is not required to maintain books of
account, not required to get audit of his accounts and not required to furnish the return of
income. (This opinion is
not authentic and please do not base
upon this opinion for decision making)
32. Mr. Z is having 8 Goods carriage vehicles. He wants to opt 4
vehicles u/s 44AE and getaudit for the other 4 vehicles. Advise him.
A. In Dy. CIT v. C.P.Kunhimohammed (2005) 94 ITD 278
(Cochin-Trib), a similar issue was discussed. The assessee having 3 lorries, 2
of them are old and the one being new, wanted to claim the benefit of section 44AE for 2 lorries and normal income
scheme for the new lorry. The Tribunal held as below:
There is no provision . which enables an asessee to apply the
provisions of section 44AE in the case of some lorries and to go for regular
assessment on the basis of books of account in respect of the remaining
lorries. As plying hiring or leasing the goods carriages is treated as a
separate business, all the lorries owned by the assessee form part of the said
business and the tax treatment of all those lorries needs to be an uniform manner.
In view
of the above decision, it is possible to say that the assessee cannot claim
44AE method of income determination for 3 lorries and regular method of
computation for the other 4 lorries, which are engaged in transport contract.
However,
if the assessee has two separate geographic locations of business engaged in
transport and there is complete identity between these two businesses with no
intermixing, interlacing of funds then it is possible to claim presumptive
income scheme for one transport business with some lorries and another
transport business on regular basis. However, the basic condition that the
assessee should not own more than 10 lorries needs to be satisfied, otherwise
the benefit of section 44AE cannot be availed of at all.
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