TaxTMI 
TaxTMI 
2019 (3) TMI 2096
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....ppeal: "1) The order of the learned CIT(A) is erroneous in law and against the principles of natural justice. 2) The learned CIT (A) erred in not considering the grounds of appeal in proper perspective. 3) The learned CIT (A) erred in sustaining the penalty uls.271B, without considering the fact that once no books of accounts are maintained, then the offence is complete there-itself and that the question of getting the accounts audited does not arise. And for other reasons that may be adduced at the time of hearing, your appellant prays that the appeal be admitted, considered and justice be rendered." 3. The brief facts of the case are as under: The appellant is an individual engaged in the business of real ....
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....the books of accounts were not maintained at all. When no books of accounts are maintained the assessee commits an offence of not maintaining the books of accounts as contemplated by s. 44AA of the Act, after that there can be no offence contemplated by s. 44AB of the Act. The penalty cannot be imposed u/s. 271B of the Act for an offence contemplated by s. 44AA of the Act. Reliance in this regard can be placed on the decisions of Hon'ble High Court of Gauhati in the case of Surajmal Parusuram Todi v. CIT [1996] 222 ITR 691 (Gau) and the decision of Hon'ble High Court of Allahabad in the case of CIT v. Bisauli Tractors [2008] 299 ITR 219 (All), wherein it was held as follows: "7. It may be mentioned here that separate penalty has be....
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....vour of the assessee has to be adopted. We may mention here that in case where the returns are not being filed, there is unanimous judicial view that no penalty can be imposed for concealment of income and that is why the Parliament had to make suitable amendment in the penalty provision by inserting Explanation 3 to section 271 of the Act and Explanation 3 to section 18 of the Wealth-tax Act, 1957. 8. The question as to whether an assessee has concealed the particulars of his turnover where he has not filed the return came up for consideration before the Apex Court in the case of Narain Das Suraj Bhan v. CST [1968] 21 STC 104. The Apex Court while considering the provisions regarding the imposition of penalty provided under clause....
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....turn was required to be filed and which is referred to in clause (a)." 9. This Court, in the case of CST v. Shahid Hussain Rakesh Kumar [1977] 39 STC 520 has held that in a case where no return has been filed penal proceedings can be initiated only under section 15A(1)(a) and not 15-A(1)(b) of the U.P. Sales Tax Act, 1948. It has held as follows : "A perusal of the two parts clearly establishes that section 15A(1)(a) applies in a case where the dealer has failed to furnish the return under section 7, where sub-clause (b) applies in a case where the return has been furnished but there is deliberate concealment or the return furnished is inaccurate. The Legislature has in the two sub-clauses mentioned two different categorie....
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.... "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 opinion, is the ordinary and grammatical meaning of the words occurring in the Act. To interpret the language of this provision in the manner suggeste....
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....ticulars' of income. In the setting in which this sub-section 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 taken the same view. It has held as follows : "Thus applying the strict construction of penalty provisions containe....