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2018 (5) TMI 1985 - ITAT, JAIPURPenalty U/s 271(1)(c) - undisclosed business carried out in the name and style of M/s Jharkhand Electric & Electronics, which has not been disclosed in the return of income - AO worked out the turnover and estimated the NP rate at 5% against 4.11% declared by the assessee and made addition - HELD THAT:- A clear case where the assessee has failed to report the business receipts in respect of her regular business activities while filing her return of income and subsequently, when the matter was selected for scrutiny, she has come forward and submitted the details of its trading and profit/loss account. The explanation of the assessee in not reporting the said business receipts in her original return of income by merely stating that the same was inadvertently not reported doesn't inspire any confidence in us. Hence, the levy of penalty on such unreported business receipts under section 271(1)(c) is hereby confirmed. Penalty u/s 271A - non-maintenance of books of accounts - HELD THAT:- As the assessee was having turnover exceeding ₹ 60 lacs during the year under consideration, the provisions of Section 44AA of the Act are clearly applicable and the assessee was liable to maintain her books of account. Nothing has been brought on record which demonstrates any reasonable cause on part of the assessee in non- maintenance of her books of accounts. Therefore, we confirm the action of the AO in levying penalty under section 271A and the ground of appeal is hereby dismissed. Penalty U/s 271B - not getting the books of account audited - HELD THAT:- Once the penalty has been levied for non-maintenance of books of accounts, there cannot be penalty again for non-audit of books of accounts which were not kept at first place. It is clearly a case of impossibility of performance where it is expected that the assessee should get her books of accounts audited when it is a known and admitted fact that there are no regular books of accounts which have been maintained at first place. Our view is fortified by the decision of SURAJMAL PARSURAM TODI [1996 (8) TMI 102 - GAUHATI HIGH COURT]wherein it was held that when a person commits an offence by not maintaining the books of accounts as contemplated under section 44AA, the offence is complete and after that, there can be no possibility of any offence as contemplated under section 44AB and therefore, the imposition of penalty under section 271A is erroneous. In the result, the levy of penalty under section 271B is hereby deleted.
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