TaxTMI 
TaxTMI 
2018 (5) TMI 2141
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..... 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 assessee for which the assessee was advised bed rest for 10 days. The assessee has produced a medical certificate SRGH & MC Jhalawar. Having considered the reasons explained by the assessee for delay of 6 days in filing the present appeal we are satisfied that the assessee was having a reasonable cause for not presenting the appeal within the period of limitation. Accordingly, we condone the delay of 6 days in filing the appeal of the assessee. 3. The solitary ground raised by the assessee in this appeal is as under:- "....
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....e of CIT Vs. Bisauli Tractors 299 ITR 219 as well as the decision of Hon'ble Gauhati High Court in case of Surajmal Parsuram Todi vs. CIT 222 ITR 691. The ld. AR has also relied upon the decision of Delhi Benches of the Tribunal in case of Nirmal Kumar Jain vs. ITO in ITA No. 6696 & 6645/Del/2014 dated 02.03.2016. Hence, the ld. AR has submitted that when the assessee 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 wa....
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....in paras 11 to 14 as under:- "11. In the case of S. Narayanappa & Bros. v. CIT [1961] 41 ITR 125 the Mysore High Court has held as follows : "What was urged before us was that in a case where an assessee has furnished no return at all before the Income-tax Officer, it should be presumed for the purposes of section 28(1)(b) that he has furnished a return of his income intimating the Income-tax Officer that his income is nil. It seems to me that the language of section 28(1) does not admit of any such construction since the clear requirement of the provisions of this sub-section is that an assessee on whom a penalty is proposed to be imposed under section 28(1)(b) should have in the first instance furnished his return. That, in my opinio....
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....ion 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 section 28(1)(a) alone." 13. This Court in CWT v. Yadu Raj Narain Singh [2006] 286 ITR 564 also....
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....o 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. The Tribunal has overlooked this aspect of the matter. 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. The Delhi Benches of t....
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.... account as has been recorded in the assessment order itself. We, therefore, order for the deletion of penalty. 4. As regards the imposition of penalty u/s 271(1)(c) of the Act on the addition of Rs.7.5o lac, we find that this addition has resulted on estimation of income at 5% on estimated sales ITA Nos.6696 & 6645/De1/2014 of Rs.1.50 crore. Except that there is no other basis for imposition of penalty. The Hon'ble Delhi High Court in CIT vs. Aero Traders P. Ltd. (2010) 322 ITR 316 (Del) has upheld the view taken by the Tribunal in deleting penalty u/s 271(1)(c) which was imposed on the basis of addition made by the AO on estimated profit. Similar view has been taken in a series of judgments including the Hon'ble Punjab & Haryan....