2018 (5) TMI 2141 - AT - Income Tax

Penalty u/s 271B - assessee has violated the provisions of Section 44AA as well as 44AB of the Act for not maintaining the regular books of accounts as well as audit of the same - HELD THAT - It is pertinent to note that when the assessee did not maintain the regular books of account then the question of getting of books of accounts audited does not arise. Once, there is a violation of provisions of section 44AA of the Act the said violation cannot be extended to section 44AB of the Act. The provisions of Section 44AB of the Act can be invoked only when the assessee has complied with the provisions of Section 44AA of the Act. Therefore, the violation of Section 44AA of the Act cannot continue because once it is found that the assessee did not maintain the regular books of account the said violation cannot travel beyond the provisions of Section 44AA and hence, cannot be held as a further violation of Section 44AB - See BISAULI TRACTORS 2007 (5) TMI 181 - ALLAHABAD HIGH COURT Once the assessee found to have not maintaining the regular books of account as contemplated by Section 44AA of the Act the default was completed and therefore, after the default of not maintaining the books of accounts there cannot be a further default for not getting the same audited as required U/s 44AB of the Act. Hence, the penalty of levy by the AO U/s 271B is not justified and the same is deleted. Appeal filed by the assessee is allowed.

Summary

Issues involved:
- Delay in filing appeal and condonation of delay
- Imposition of penalty under Section 271B for non-audit of accounts

Delay in filing appeal and condonation of delay:
The appeal was filed against the order of CIT (A) for a penalty under Section 271B of the I.T. Act. The delay of 6 days in filing the appeal was condoned by the ITAT Jaipur based on the reasons provided by the assessee, which included illness supported by a medical certificate. The ITAT found the reasons for delay satisfactory and thus allowed the appeal to proceed despite the delay.

Imposition of penalty under Section 271B for non-audit of accounts:
The primary issue raised in the appeal was the imposition of a penalty under Section 271B for not getting the books of accounts audited. The assessee had not maintained regular books of accounts, leading to penalties under Sections 271A and 271B. The argument presented was that if no regular books of accounts were maintained, the question of auditing them did not arise. The ITAT analyzed relevant case laws, including decisions by the Allahabad High Court and Gauhati High Court, which emphasized that the penalty under Section 271B cannot be imposed when no books of accounts are maintained. The ITAT concluded that once a violation of not maintaining regular books of accounts under Section 44AA was established, there could be no further violation for not getting the same audited under Section 44AB. Therefore, the penalty imposed under Section 271B was deemed unjustified and was subsequently deleted. The ITAT allowed the appeal, following the legal position established by the cited judgments.

In summary, the ITAT Jaipur's judgment addressed the issues of delay in filing the appeal and the imposition of a penalty under Section 271B for non-audit of accounts. The delay in filing the appeal was condoned based on valid reasons provided by the assessee. Regarding the penalty, the ITAT ruled in favor of the assessee, citing legal precedents that clarified the inapplicability of the penalty under Section 271B when regular books of accounts were not maintained. The ITAT allowed the appeal, highlighting the importance of compliance with relevant sections of the Income Tax Act in determining penalties.