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2019 (12) TMI 1307 - ITAT CUTTACKPenalty levied u/s 271A - absence of maintenance of books of accounts as prescribed u/s.44AA - Whether CIT(A) has erred in confirming the penalty levied u/s.271A by the AO without rejecting the books of accounts of the assessee u/s.145(3) ? - HELD THAT:- On perusal of the penalty order dated 30.09.2016 for the assessment year 2013-2014, the AO has mentioned that the Auditor in the Audit Report has certified in Form 3CD that the assessee maintains various books of account viz. cash book & ledger. In the assessment order also, the AO noted that the authorised representative of the assessee appeared and produced audit report, copy of acknowledgement of e-Return filed, copies of bank account details, Vakalatanama & copy of Service Tax Return. Only dispute raised by both the authorities below that the assessee has not produced books of account, whereas the AO has himself admitted that the return of income filed was accompanied by audit report and other documents. The assessee has produced the tax audit report which has been accepted by the AO. The auditor has also certified that the various books have been maintained. The revenue has not brought any cogent material on record so as to establish that the assessee has not maintained books and such documents as required u/s.44AA of the Act or the rules made thereunder. Therefore, the penalty levied u/s.271A for both the assessment years under consideration cannot be sustained on the facts and circumstances of the present case. On further perusal of the assessment as well as appellate order, we find that both the authorities below have only pointed out that the assessee has failed to produce books of accounts before the AO. In this regard, the assessee has explained with reasonable cause for non-production of the same before the AO stating accountant of the assessee was asked about the books of account. The accountant replied that the books of account are with the auditor, but when the assessee inquired with the auditor about the books of account, the auditor replied that it was returned back immediately after the audit was over. As the books of account are misplaced and are not traceable at present, it is difficult on the part of the assessee to produce the books of account. For this reason also the assessee gets immunity from the provisions of Section 273B - CIT(A) was not justified in sustaining the penalty imposed by the AO under Section 271A - Decided in favour of assessee.
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