2020 (6) TMI 719 - AT - Income Tax

Penalty u/s 271B - AO has already imposed penalty u/s 271A on the appellant for non maintenance of books of accounts - survey operation u/s 133A - During the assessment proceedings the fact of surrender of undisclosed income was disputed and the AO made addition based on the statement recorded during the proceedings u/s 133A - HELD THAT - In the instant case the audit could not have been conducted in the absence of books of accounts. If a person has not maintained the books of accounts the question of audit does not arise. The infraction of Section 44AB gets attracted only when the assessee maintains the books of accounts but fail to get them audited. Hence there is no reason to initiate penalty u/s 271B. The penalty for non-maintenance of books of accounts has already been rightly levied hence the offence has already been taken note of and the only recourse is to levy penalty u/s 271A for non-compliance of Section 44AA. These two provisions operate under two different realms. Thus the penalty levied by the AO as confirmed by the ld. CIT (A) be obliterated. With regard to the arguments of the ld. DR that owing to the difference in the penalties it prima facie encourages non- maintenance of books of accounts at this juncture we refrain ourselves from trespassing the domain of legislature as to the difference of the quantum of penalty leviable u/s 271A and 271B. - Decided in favour of assessee.

Summary

Issues:
- Appeal against penalty order under section 271B despite penalty under section 271A for non-maintenance of books of accounts.

Analysis:
1. Facts of the Case: A survey operation under section 133A revealed unaccounted stock of aluminum sheets and foils, which the assessee surrendered for taxation in the assessment year 2013-14. Dispute arose regarding the surrender of undisclosed income during assessment proceedings.

2. Penalty Proceedings: The Assessing Officer (AO) imposed a penalty under section 271B despite the assessee's argument that a penalty under section 271A had already been imposed for non-maintenance of books of accounts. The AO held that the turnover mandated book audit under section 44AB, and as the assessee accepted being in the trading business, book audit was a statutory requirement.

3. Arguments Before CIT (A): The assessee contended before the Commissioner of Income Tax (Appeals) [CIT (A)] that since a penalty under section 271A had been levied for non-maintenance of books of accounts, no penalty under section 271B should apply. However, the CIT (A) upheld the penalty under section 271B, emphasizing the dual obligation on the assessee to maintain and audit books of accounts.

4. Judicial Precedents: The assessee relied on various court judgments to support the argument that penalty under section 271B was erroneous when no books of accounts were maintained, invoking penalty under section 271A instead. The judgments highlighted the distinct penalties for non-maintenance and non-audit of accounts.

5. Appellate Tribunal Decision: The Appellate Tribunal noted the legislative requirement for both maintaining and auditing books of accounts but emphasized that penalty under section 271B applies only when books are maintained but not audited. As the penalty under section 271A was already imposed for non-maintenance, the Tribunal directed the obliteration of the penalty under section 271B.

6. Different Penalties: The Tribunal refrained from delving into the quantum difference between penalties under sections 271A and 271B, stating it as a legislative domain. The decision to annul the penalty under section 271B was based on the distinct nature of the offenses and penalties under the two sections.

7. Conclusion: The Tribunal allowed the appeal, emphasizing the separate realms of penalties under sections 271A and 271B. The decision highlighted the necessity of maintaining books of accounts for audit penalties to apply, ensuring compliance with statutory requirements.

This detailed analysis of the judgment showcases the legal intricacies involved in the case, the arguments presented by both parties, and the Tribunal's decision based on legislative provisions and judicial precedents.