2023 (3) TMI 1521 - AT - Income Tax

Penalty passed u/s. 271B - not getting the books of accounts audited by the assessee - as submitted no books of accounts have been maintained by the assessee - HELD THAT - Once it has been held the assessee has not maintained the books of account and consequent there upon the penalty has also been levied the separate penalty for not getting the books of account audited cannot be fastened. The penalty u/s. 271B can be levied when the assessee maintains the books and not get them audited but once it is been held and not disputed that the assessee has not maintained the books how the penalty for not getting the books audited be levied. Once the penalty is levied for non-maintenance of book of accounts there cannot be further default for not getting the same audited as required u/s 44AB of the Act and therefore the penalty levied u/s 271B is not justified and thus vacated. Appeal of the assessee is allowed.

Summary

Issues Involved:
1. Penalty for not getting books of accounts audited.
2. Penalty on turnover declared under Section 44AD.
3. Validity of the notice initiating penalty proceedings under Section 271B.

Detailed Analysis:

Issue 1: Penalty for Not Getting Books of Accounts Audited
The primary issue revolves around the imposition of a penalty under Section 271B of the Income Tax Act for not getting the books of accounts audited. The assessee argued that no books of accounts were maintained, making it impossible to conduct an audit. The Tribunal noted that Section 271B penalizes the failure to get accounts audited only if books of accounts exist. Since the assessee did not maintain any books, as confirmed by the Assessing Officer (AO) and evidenced by the penalty under Section 271A for non-maintenance of books, the Tribunal held that the penalty under Section 271B was not justified. The Tribunal relied on several judicial precedents, including the decisions of the Allahabad High Court in CIT vs. S.K. Gupta and Co. and the Gauhati High Court in Surajmal Parsuram Todi vs. CIT, which supported the view that penalty under Section 271B cannot be imposed if no books of accounts were maintained.

Issue 2: Penalty on Turnover Declared Under Section 44AD
The assessee did not press this ground of appeal. Therefore, the Tribunal did not provide an analysis or ruling on this issue.

Issue 3: Validity of the Notice Initiating Penalty Proceedings Under Section 271B
The assessee contended that the notice initiating penalty proceedings was vague and lacked jurisdiction as it did not specify the exact fault. The Tribunal examined the notice and found that it did not clearly state the specific charge, thereby making it ambiguous. The Tribunal cited the decision of the Karnataka High Court in CIT vs. SSA's Emerald Meadows, which held that a vague penalty notice is invalid. The Tribunal concluded that the notice issued under Section 271B was bad in law due to its ambiguity and lack of specificity, thus invalidating the entire penalty proceedings.

Conclusion
The Tribunal allowed the appeal of the assessee, holding that:
1. The penalty under Section 271B for not getting the books of accounts audited was not justified as no books of accounts were maintained.
2. The issue of penalty on turnover declared under Section 44AD was not pressed by the assessee and thus not addressed.
3. The notice initiating penalty proceedings under Section 271B was invalid due to its vagueness and lack of specificity.

The Tribunal's order emphasized that penalties under Sections 271A and 271B are mutually exclusive and cannot be imposed concurrently for the same default. The appeal was allowed, and the penalty under Section 271B was vacated.