TaxTMI 
TaxTMI 
2024 (5) TMI 437
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.... (here-in-after referred to as "the Act") relevant to the Assessment Years 2009-2010 & 2010-11. 2. First, we take up ITA No. 106/Rjt/2023, an appeal by the assessee for A.Y. 2009-10. The only grievance raised by the assessee is that Ld. CIT(A) erred in confirming the penalty levied by the AO for Rs. 1,00,000/- u/s 271B of the Act. 3. The necessary facts are that the assessee in the present case is an individual and engaged in the business of trading of scrap. The assessee in the year under consideration has filed the return of income declaring an income of Rs. 1,49,280/- only. Subsequently, the case of the assessee was reopened on account of income escaping assessment under the provisions of section 147 of the Act wherein the income w....
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....f the Act. Accordingly, there was no possibility of getting the accounts audited u/s 44AB of the Act. The first offence committed by the assessee is on account of non-maintenance 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 Gauh....
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....also quoted on page 11 of the Ld. CIT(A) order. Therefore, from of the above facts it is seen that there was an accountant for maintaining the books of accounts who was maintaining the books at an interval of about a fortnight and only the books of accounts were finalized and audited post recording of statement by DDIT on 28.01.2011. In view of the above, the case of the assessee is factually different from the case laws cited above wherein no books of accounts were found to be maintained. The assessee has himself submitted that the books of accounts were only finalized after the recording the statement of the appellant as has been quoted on page 18 of Ld. CIT(A) order. Hence, in view of the discussion above, the facts of the case of the as....
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.... 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) Ans. to question number-07 of statement dated 27.09.2010: I am filing return of income and my accountant is aware of period for which returns are filed and I am not aware of books, whic....
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....of sections 44AA, 44AB, 271A and 271B of the Act. Maintenance of accounts is envisaged under section 44AA 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, 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 ....
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....the instant set of facts. Therefore, the assessee can get the immunity from the penalty specified u/s 271B of the Act. 8.4 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 written of income 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 the assessee did not maintain the books of accounts within the due date specified u/s 139(1) of the ....