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TMI Blog2024 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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 account as contemplated by section 44AA the offence is complete. After that there can be no possibility of any offence as contemplated by section 44AB and, therefore, in our opinion, the imposition of penalty under section 271B is erroneous. DR has not brought any concrete evidence justifying that the books of accounts of the assessee were written up before the due date of filing written of income and therefore the assessee has contravened the provisions of section 44AB of the Act. - Decided in favour of assessee. - SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER For the Appellant : Shri Chetan Agarwal, A.R For the Respondent : Shri Ashish Kumar Pandey, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: 1. The captioned two appeals have been filed at the instance of the Assessee against the separate orders of Learned Commissioner of Income Tax (Appeals), Rajkot, arising in the matter of penalty order passed under s. 271B of the Income Tax Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance of books of accounts u/s 44AA of the Act, which is complete and therefore there cannot be any penalty under the provisions of section 44AB of the Act. 7. On the other hand, the Ld. DR made written submissions dated 03/01/2024, which are reproduced as under: 2. Both the above referred matters were listed for hearing before the Hon DB Bench on 02.01.2024. During the course of hearing on the above referred matters it was mentioned by the Hon'ble Accountant Member as to what would be the position of Revenue with respect to the orders of Hon'ble Gauhati and Allahabad High Courts in the cases of Surajmal Parsuram Todi Vs. CIT [1996] 222 ITR 691 (Gauhati) and CIT Vs. Bisauli Tractors [2007] 165 Taxman 1 (Allahabad) wherein it has been held that where the books of account itself have not been maintained by the assessee there is no question of getting them audited u/s 44AB and therefore penalty u/s 271B could not be imposed. 3. With respect to the above it is humbly submitted that the above cited judgements are applicable in a case where no books of account have been maintained by the assessee. In the present case in the instant appeals the assessee has clearly admitted bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of Accountant was not acceptable and thus penalty order passed u / s.271B was to be upheld. (iii) Shish Ram Raja Ram and Party [2017] 81 taxmann.com 91 (Rajasthan High Court upheld penalty u/s. 271B for belated filing of audit report. 5. Further, the assessee has not been able to provide a reasonable cause so as to levy the penalty u/s .273B of the Act. In view of the above, it is requested that the order of Ld.CIT(A) may be confirmed and the appeal of the assessee be dismissed. 8. We have heard the rival contentions of both the parties and perused the materials available on record. There is no ambiguity that the books of accounts of the assessee were not written up before the due date of filing the return of income as specified u/s 139(1) of the Act. This fact can be verified from the submissions of the assessee made before the Ld. CIT(A), which were not in dispute. The relevant extract of the submission of the assessee reads as under: The dependence of the appellant is well deposed by him on oath in statement recoded by the Dy. Director of Income-tax (Investigation)-1, Rajkot (in short, Dy. DIT) (copy of statement is attached at Page- 36 to 42). The essence is that: (i) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Of course, it is apparent from the records that the assessee failed to maintain the books of account as required under section 44AA and for that penalty is prescribed under section 271A. It is for the Tribunal to take action in accordance with law. In view of the above observations, we answer the question in the negative and in favour of the assessee. 8.2 Likewise, the Hon ble High Court of Allahabad in the case of CIT vs. Bisauli Tractors reported in 165 taxman 1 has held as under: 7. It may be mentioned here that separate penalty has been provided for non-maintenance of accounts, i.e., under section 271A of the Act and for not getting the accounts audited and not furnishing the audit report i.e., under section 271B of the Act. In the present case, the Assessing Officer did not impose penalty under section 271A of the Act and instead proceeded to impose penalty under section 271B of the Act. If a person has not maintained the accounts book or any accounts the question of its audit does not arise. In such an event the imposition of penalty under the provision contained in section 271A of the Act for the alleged non-compliance of section 44AA of the Act may arise but the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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