MR. BANDENAWAZ MULLA,VIJAYAPUR vs. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, BIJAPUR

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ITA 137/BANG/2023Status: DisposedITAT Bangalore07 June 2023AY 2017-183 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the assessee had not maintained books of account, there was no requirement to get them audited. Therefore, penalty under Section 271B was not leviable, and if any penalty was to be levied for not maintaining books, it should have been under Section 271A.

What were the facts?

The assessee filed their return of income and during scrutiny, it was observed that contract receipts exceeded the threshold requiring an audit. The assessee had not obtained an audit of their books of account.

What were the issues?

Whether penalty under Section 271B is leviable when the assessee has not maintained books of account. The applicability of Section 271B when Section 44AB is not fulfilled due to non-maintenance of books.

Which sections of the Income-tax Act were involved?

Section 271B,Section 44AB,Section 271A

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “C’’ BENCH: BANGALORE

Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI

For Appellant: Smt. Pratibha, A.R
For Respondent: Smt. Priyadarshini Baseganni, D.R
Hearing: 07.06.2023Pronounced: 07.06.2023

PER CHANDRA POOJARI, ACCOUNTANT MEMBER:

1.

This appeal by assessee is directed against order of NFAC dated 11.1.2023 for the assessment year 2017-18. The assessee raised the grounds with regard to levy of penalty u/s 271B of the Income-tax Act,1961 ['the Act' for short].

2.

Facts of the issue are that in the instant case, the assessee has filed return of income for the A.Y. 2017-18 on 30.03.2018 declaring total income of Rs.1,01,89,020/-. The case was selected for scrutiny under CASS Module u/s 143(3) of the Income-tax Act,1961 ['the Act' for short] was concluded on Page 2 of 3 08.08.2019. During the course of assessment proceedings, the ld. AR of the assessee submitted copies of return of income along with statement of receipt and payment and statement of affairs as on 31.03.2017. After verification of said statement of affairs, it was noticed that the assessee has shown contract receipt of Rs.12,80,43,795/-. Since, the assessee failed to get the books of account audited without any reasonable cause, the AO invoked the provision of section 271B of the Act and levied penalty of Rs.1,50.000/-. Against this assessee is in appeal before us.

3.

We have heard the rival submissions and perused the materials available on record. In this case, it is admitted fact that assessee has not been maintaining the books of accounts. As such, there is no question of auditing the same u/s 44AB of the Act. Consequently, there cannot be any question of levying penalty u/s 271B of the Act. In our opinion, requirement of getting the books of accounts audited could arise only where the books of accounts are maintained. If for same reason, the assessee has not maintained the books of accounts, the appropriate provision under which penalty proceedings can be initiated is u/s 271A of the Act, which recourse has not been taken by the AO. Being so, in our opinion, there is no question of levying penalty u/s 271B of the Act. Accordingly, we place reliance on the judgement of Allahabad High Court in the case of CIT Vs. S.K. Gupta & Company reported in 322 ITR 86 (All.) and delete the penalty levied u/s 271B of the Act.

Page 3 of 3 4. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 7th June, 2023

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