9911796707
TMI Blog2024 (6) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act on account of income escaping assessment. Thus, there remains 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 penalty order framed by the AO under section 271B of the Act. Once it is established that the books of accounts were not written up within the due date of filing the return of income, the question of getting them audited to comply the provision of section 44AB of the Act, does not arise. As such the first default of the assessee on stand-alone basis is non-maintenance of books of account u/s 44AA of the Act which is complete offence. Therefore, such default i.e. non-maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44AB. We hold that the assessee did not maintain the books of accounts within the due date specified u/s 139(1) of the Act, so as to comply the provisions of section 44AB of the Act. Accordingly, the assessee cannot be visited to the penalty for the offence committed by the assessee for not getting accounts audited. Decided in favour of assessee. - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri Mehul Ranpura, A.R. For the Revenue : Shri Ashish Kumar Pandey, Sr.D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 44A4B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount even under presumptive taxation and therefore the submission of the assessee that he is not liable to maintain books of accounts u / s 44AE is also not entirely correct. 5. Further, Revenue would like to rely upon the following case laws in support of the levy of penalty u/s 271B: (i) S. Ramakumar Reddy [2023] -147 taxmann.com 401 (Telangana High Court) wherein it has been held that since assessee had not complied with the provisions of section 444B i.e. by submitting audited accounts despite having turnover exceeding the prescribed limit, penalty was rightly levied. (ii) Shish Ram Raja Ram and Party [2017] 81 taxmann.com 91 (Rajasthan High Court Upheld penalty u/s. 2718 for belated filing of audit report. 6. The assessee has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 ITR 691 has held as under: 2. We have gone through the provisions of sections 44AA, 44AB 271A and 271B of the Act. Maintenance of accounts is envisaged under section 4444 and on failure to do so the assessee shall be guilty and liable to be penalised 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, Le., 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 4444 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by Hon'ble High Court are squarely applicable in the instant set of facts. Therefore, the assessee can get the immunity from the penalty specified u/s 271B of the Act. 7.3. Regarding the contention of the Ld. DR that the assessee has written up the books of accounts is misplaced. Indeed, the assessee has written up books of account but on a later date. As such, the Ld. 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 return of income as specified under section 139 of the Act and therefore the assessee has contravened the provisions of section 44AB of the Act. In view of the above, and after considering the facts in entirety, we hold that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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