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TMI Blog2018 (5) TMI 2141X X X X Extracts X X X X X X X X Extracts X X X X ..... lated 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. - ITA No. 38/JP/2018 - - - Dated:- 30-5-2018 - Shri Vijay Pal Rao, JM And Shri Bhagchand, AM For the Assessee : Shri Suhani Mamodia (C.A.). For the Revenue : Smt. Poonam Rai (DCIT). ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 10.10.2017 of CIT (A), Kota arising from the penalty order passed U/s 271B of the I.T. Act for the assessment year 2013-14. There is delay of 6 days in filing this appeal. The assessee has filed an application for condonation of delay which is supported by an affidavit as well as medical certificate. 2. We have heard the ld. AR as well as the ld. DR and carefully perused the contents application and supporting affidavits for condonation of delay. The assessee has explained the cause of delay of 6 days as illness of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has not maintained the regular books of account and the penalty was imposed U/s 271A of the Act then no penalty can be levied for violation of Section 44AB of the Act. 5. On the other hand, ld. DR has relied upon the order of the authorities below and submitted that the assessee has disclosed incorrect turnover of Rs. 38,95,987/- whereas the actual turnover of the assessee was found to be Rs. 2,15,09,422/-. Hence, the 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. 6. Having considered the rival submissions as well as relevant material on record we note that the assessee has committed the default for not maintaining the regular books of accounts as required U/s 44AA of the Act. The Assessing Officer has already imposed the penalty U/s 271A for violation of the provisions of Section 44AA of the Act. The AO has also imposed the penalty U/s 271B for not getting the books of accounts audited. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . First Addl. ITO [1962] 46 ITR 411 has gone to the extent that a voluntary return filed after the period of four years from the close of the assessment year is not a valid return and such a case should be regarded as if no return has been filed at all and it cannot be said in such a case that there has been a concealment of the particulars of income or deliberate furnishing of inaccurate particulars and section 28(1)(c) of the Income-tax Act, 1922 would not be applicable. The Madras High Court has held as follows : When we come to section 28(1)(c ), it deals specifically with the concealment of particulars of income or the deliberate furnishing of inaccurate particulars of income. In the setting in which this subsection finds place it is impossible to construe section 28(1)(c) except as relating to a case where a return has been filed but from which return particulars of income have been omitted or any particulars have been deliberately inaccurately furnished. The use of the expression particulars of his income and particulars of such income would be wholly inapposite in a case where no return has at all been filed; such a case would clearly come within the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Jain vs. ITO (supra) has held in paras 3 4 as under:- 3. In so far as the penalty u/s 271B is concerned, it is noticed that the AO has recorded a categorical finding on page 2 of the assessment order that no books of account were maintained by the assessee. Under such circumstances, a question arises as to whether any pnalty can be imposed u/s 271B for not getting the books of account audited. The Hon'ble Gauhati High Court in SuraiMal Parasuram Todi vs. CIT (1996) 222 ITR 691 (Gau.), has held that where no books of account are maintained, penalty should be imposed for non- maintenance of books of account u/s 271A and no penalty can be imposed u/s 271B for violation of section 44AB requiring ITA Nos.6696 6645/Del/2014 audit of accounts. Similar view has been taken by the Hon'ble Allahabad High Court in CIT vs. Bisauli Tractors (2008) 299 ITR 219 (All). The Hon'ble Aliahabad High Court reiterated the similar view in CIT and Anr. Vs. S.K. Gupta and Co. (2010) 322 ITR 86 (All) by holding that requirement of getting the books of account audited can arise only where the books of account are maintained. In the absence of the maintenance of books of account, there C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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