KESHAV GARG,DELHI vs. ITO, WARD-38(2), NEW DELHI

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ITA 6575/DEL/2018Status: DisposedITAT Delhi08 April 2019AY 2011-125 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 was already penalized for non-maintenance of accounts, levying a separate penalty for non-audit of accounts was not justified. Therefore, the penalty under Section 271B was deleted.

What were the facts?

The assessee did not maintain books of account and consequently, did not get its accounts audited. The Assessing Officer levied penalty for non-audit of accounts under Section 271B. The assessee had also been separately penalized for non-maintenance of accounts under Section 271A.

What were the issues?

Whether penalty under Section 271B for non-audit is justified when penalty for non-maintenance of accounts under Section 271A has already been levied and paid.

Which sections of the Income-tax Act were involved?

Section 271B,Section 271A

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(3)Show list

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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI

Before: SHRI N.S. SAINI

For Respondent: Shri S.L. Anuragi, Sr. DR
Hearing: 04.04.2019Pronounced: 08.04.2019

ORDER These two appeals filed by the assessee against the order of CIT(Appeals)-13, New Delhi dated 20.08.2018 for the AYs 2010-11 & 2011-12 respectively. These are being disposed of with this consolidated order. (AY 2010-11): 2. The grounds of appeal of the assessee are as under: 1. “The Ld.CIT(Appeal) was not justified in confirming the penalty imposed u/s 271B of the Income Tax Act, 1961.

2. It is well settled law that the penal action simultaneously cannot be taken u/s 271A as well as 271B of Income Tax

Act, 1961. The appellant has conducted the concerned activities for 2 years which no doubt covers 3 Asstt. Years where the penalty was imposed u/s 271(1)(b) for the previous year i.e. AY 2009-10 such penalty has been deleted by ITAT. 3. That the appellant craves their right to amend, delete or add any grounds of appeal at or before the time of hearing.” (AY 2011-12): -

3. The grounds of appeal of the assessee are as under: 1. “The Ld.CIT(Appeal) was not justified in confirming the penalty imposed u/s 271B of the Income Tax Act, 1961.

2. It is well settled law that the penal action simultaneously cannot be taken u/s 271A as well as 271B of Income Tax Act, 1961. The appellant has conducted the concerned activities for 2 years which no doubt covers 3 Asstt. Years where the penalty was imposed u/s 271(1)(b) for the previous year i.e. AY 2009-10 such penalty has been deleted by ITAT.

3. That the appellant craves their right to amend, delete or add any grounds of appeal at or before the time of hearing.”

4. Learned counsel for the assessee submitted that the assessee has not maintained any books of account and, therefore, no penalty u/s 271B of the Income-tax Act, 1961 could be levied for non-audit of the accounts. He relied on the decision of Hon'ble Allahabad High Court in CIT Vs. Bisauli Tractors - [2008] 299 ITR 219 (All). ClT Vs. S.K. Gupta and Co. - [2010] 322 ITR 86 (All) and of Hon'ble Karnataka High Court in ACIT and Another Vs. Dr. K. Satish Shetty - [2009] 310 ITR 366 (Karn) in support of his arguments. He submitted that the assessee has been separately penalized for non-maintenance of accounts by the Assessing Officer by levying penalty of Rs. 25,000/- by order dated 26.09.2013 and has filed a copy thereof before the Tribunal. He submitted that the Assessing Officer was not justified in levying penalty twice for the same charge.

5.

Learned DR has relied on the order of the Assessing Officer and the learned ClT(A). He submitted that the assessee has admittedly not undertaken the audit of its accounts and has not maintained account books and separate penalties are provided under the Act for the two separate defaults by the legislature.

6.

I have considered the rival submissions and have perused the order of the AO and the learned ClT(A). I find that the assessee has claimed that it was not maintaining any account books and, therefore, the audit of the same was not possible and has relied on the decision of Hon'ble Courts cited at the bar by the learned counsel for the assessee. I find that the Assessing Officer has separately penalized the assessee for non-maintenance of accounts by levying a penalty of Rs. 25,000/- u/s271A of the Act and the Ld. Counsel for the assessee has stated at the bar that the order has become final and assessee has already paid the amount of penalty. In these facts, I hold that since the assessee has been separately penalized for non-maintenance of accounts, the penalty for non-audit of the accounts separately was not justified and accordingly, the penalty imposed u/s 271B is deleted and the grounds of appeal of the assessee are allowed.

7.

In the result, both the appeals of the assessee are allowed.

Order pronounced in the open court on 08/04/2019

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