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TMI Blog2020 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... the failure to comply to non-maintenance of books of accounts. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the provisions of the Act with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer for non-maintenance of books of accounts. Levy of penalty u/s. 271B - AO has already imposed penalty u/s 271A on the appellant for non maintenance of books of accounts - HELD THAT:- We find that the Assessing Officer has levied penalty u/s. 271A as well as Section 271B for the same years. The issue of levy of penalty u/s. 271A as well as 271B has been adjudicated in the case of SH. MOHIT GARG, DELHI [ 2020 (6) TMI 719 - ITAT DELHI] 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 - no reason to initiate penalty u/s 271B. The penalty for non-maintenance of books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as additional evidences under Rule 29 which are required for adjudication of the matter. Hence, the application of the assessee under Rule 29 is hereby rejected. AO determined 10% of the gross receipts as income of the assessee for the year in question - The assessee is in the business of manufacturing and trading of perfumery products. The assessee has not furnished any details before the AO or before the ld. CIT(A). The purported additional evidences proposed to be filed by the assessee before the Tribunal do not materially change the profit computed by the AO The gross receipts has reflected in the bank statements have been duly considered by the Assessing Officer while determining the profit @10%. Hence, we hereby uphold the profit determined by the authorities below. No useful purpose would be served by accepting the request of the ld. AR to set aside the case to the Assessing Officer for allowing another opportunity for making further inquiries. Appeals of the assessee are dismissed. - ITA Nos. 6864, 6865, 6866, 6867, 6868, 6869, 6870, 6871, 6872, 6873 and 6874/Del/2017 - - - Dated:- 30-9-2020 - Bhavnesh Saini, Member (J) And Dr. B.R.R. Kumar, Member (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued u/s. 142(1) of the Act. 7. Before us during the hearing, the ld. AR argued that the notices have not been received by the assessee and no notice has been sent to address at M/s. HR Perfumery, 315, Industrial Area, Phase-II, Panchkula, Haryana. It was argued that there was no intention on the part of the assessee not to comply with the statutory notices issued. 8. On the other hand, the ld. DR supported the orders of the authorities below. 9. Heard the arguments of both the parties and perused the material available on record. 10. We find that the assessee has defaulted for compliance before the AO on 08.10.2012, 29.11.2012, 31.12.2012, 11.01.2013, 18.02.2013 inspite of issue of five notices. Summons under section 131 were also duly served but the assessed choose not to respond. However, in compliance to the show cause notice issued for levy of penalty u/s. 271(1)(b), the assessee seeks stay on the penalty proceedings. 11. Even before the ld. CIT (A), the assessee has not complied for the hearings fixed on 23.09.2013 and the adjournments were sought on 23.10.2013 and again defaulted for hearing fixed on 15.11.2013. Again notice was issued on 22.01.2014 fixing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mply to the notices. We find that the notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be accepted as the Panchkula address do not pertain to the residential address to the assessee. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notices with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer. 17. ITA Nos. 6866 6867/Del/2017 pertain to levy of penalty u/s. 271A. 18. The brief facts of the case are that a search u/s. 132 of the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s. 133A of the Act was conducted at the business premises of M/s. HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance of books of accounts. 26. ITA Nos. 6868 6869/Del/2017 pertain to levy of penalty u/s. 271B. 27. We find that the Assessing Officer has levied penalty u/s. 271A as well as Section 271B for the same years. The issue of levy of penalty u/s. 271A as well as 271B has been adjudicated by the ITAT Delhi Bench in ITA No. 3355/Del/2017 in the case of Sh. Mohit Garg vide order dated 23.06.2020. The relevant portion of the said order is as under: Having the facts of the case and the provisions of the Act undisputed, the ld. AR argued on the strength of the judgments of various courts: S.P. Todi Vs. CIT 226 ITR 691 (Gau.) held, that maintenance of accounts is envisaged under section 44AA and on failure to do so the assessee shall be guilty and liable to be penalized 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 do something 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 accounts as contemplated by Section 44AA the offence is complete. After that there can be no possibility of any off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for non-maintenance of books of accounts and ₹ 1,50,000/- the maximum penalty u/s. 271B for failure to get the accounts audited, if the proposition as canvassed by the ld. AR is accepted it will only encourage the assessee's for non-maintenance of books of accounts and getting away with a minor penalty of ₹ 25,000/- instead of ₹ 1,50,000/-. 10. Heard the arguments of both the parties and perused the material available on record. 11. We find that the decision of the ld. CIT (A) that the legislature is clear about maintenance of books of accounts and as well as getting the books audited is acceptable to the extent that there has been a twin responsibility casted up on the shoulders of the assessee to, a) Maintain the books of accounts u/s. 44AA, b) To get the accounts audited u/s. 44AB. 12. At the same time, the legislature is also provided for separate levy of penalty for failure to meet each statutory requirement. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply with the statutory notices issued. 33. On the other hand, the ld. DR supported the orders of the authorities below. 34. Heard the arguments of both the parties and perused the material available on record. 35. Provisions of Section 271F for failure to furnish return of income reads as under: [Penalty for failure to furnish return of income. 271F. If a person who is required to furnish a return of his income, as required under sub-section (1) of section 139 or by the provisos to that sub-section, fails to furnish such return before the end of the relevant assessment year, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of five thousand rupees:] [Provided that nothing contained in this section shall apply to and in relation to the return of income required to be furnished for any assessment year commencing on or after the 1st day of April, 2018.] 36. We have gone through the provisions of Section 273B which reads as under: [Penalty not to be imposed in certain cases. 273B. Notwithstanding anything contained in the provisions of [clause (b) of sub-section (1) of] [section 271, section 271A, [section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having gone through the facts before us and keeping in view the facts as canvassed by the ld. AR, we hereby condone the delay. b. Admission of additional evidences: 43. The assessee has sought to file the following as additional evidences under Rule 29 of the ITAT Rules: 1. Panchanama 2. Bank statement 3. Increment Certificate issued to assessee by the Director, Surya Vinayak Group of companies 44. It was argued that these evidences are very much relevant for completing assessment in order to understand that assessee has earned no income but acted merely on the directions of the Directors or Suryavinayak group of Industries against whom huge income has been estimated/computed by the assessing officer. Infact, all the receipts in the bank have been immediately transferred to another person/company as may be seen from the bank statement thus there was not fund available with the assessee in the bank account whose cheque-book has been kept by the directors of Suryavinayak group of companies. It was submitted that aforesaid additional evidence is highly relevant to decide the instant appeal and in the absence of such order, Tribunal may not be able to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence as it stands, some inherent lacuna or defect becomes apparent to the Appellate Court coming in its way to pronounce judgment, the expression To enable it to pronounce judgment 5 can be invoked. Reference is not to pronounce any judgment or judgment in a particular way, but is to pronounce its judgment satisfactory to the mind of Court delivering it. The provision does not apply where with existing evidence on record the Appellate Court can pronounce a satisfactory judgment. It is also apparent that the requirement of the Court to enable it to pronounce judgment cannot refer to pronouncement of judgment in one way or the other but is only to the extent whether satisfactory pronouncement of judgment on the basis of material on record is possible . 46. The ld. AR has also placed reliance on Braganza Construction (P.) Ltd. vs. ACIT [2020] 271 Taxman 173 (Bombay), wherein it has been held that under Rule 29, the Tribunal can consider the additional evidences furnished before the Tribunal 47. It was argued that assessments were made ex-parte without providing opportunity to the assessee despite providing all the addresses and once assessee was not available at one place, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 29. 51. Heard the arguments of both the parties and perused the material available on record. 52. Rule 29 of the ITAT Rules as under: [Production of additional evidence before the Tribunal. 29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.] 53. The instant case doesn't meet the basic requirement of admitting of additional evidences. The assessee has been accorded sufficient opportunities which he fail to make use of. The additional evidences in the form of any document are examination can be allowed to be produced under the following ..... 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