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2020 (12) TMI 100 - ITAT DELHILevy of penalty u/s. 271(1)(b) - failure to comply with the notices issues u/s. 142(1) - whether there was any reasonable cause for the failure to comply to the notices? - HELD THAT:- The notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be accepted as the Panchkula address do not pertain to the residential address to the assessee. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notices with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer. Levy of penalty u/s. 271A - assessee has not been maintaining books of accounts stipulated u/s. 44AA - HELD THAT:- As gone through the provisions of Section 44AA, Section 271A and Section 273B. We have gone through the above provisions, so as to look into whether there was any reasonable cause for the failure to comply to non-maintenance of books of accounts. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the provisions of the Act with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer for non-maintenance of books of accounts. Levy of penalty u/s. 271B - AO has already imposed penalty u/s 271A on the appellant for non maintenance of books of accounts - HELD THAT:- We find that the Assessing Officer has levied penalty u/s. 271A as well as Section 271B for the same years. The issue of levy of penalty u/s. 271A as well as 271B has been adjudicated in the case of SH. MOHIT GARG, DELHI [2020 (6) TMI 719 - ITAT DELHI] audit could not have been conducted in the absence of books of accounts. If a person has not maintained the books of accounts, the question of audit does not arise. The infraction of Section 44AB gets attracted only when the assessee maintains the books of accounts but fail to get them audited - no reason to initiate penalty u/s 271B. The penalty for non-maintenance of books of accounts has already been rightly levied, hence the offence has already been taken note of and the only recourse is to levy penalty u/s 271A for non-compliance of Section 44AA. These two provisions operate under two different realms. Thus the penalty levied by the AO as confirmed by the ld. CIT (A) be obliterated. With regard to the arguments of the ld. DR that owing to the difference in the penalties, it prima facie encourages non- maintenance of books of accounts, at this juncture, we refrain ourselves from trespassing the domain of legislature as to the difference of the quantum of penalty leviable u/s 271A and 271B. - Decided in favour of assessee. Levy of penalty u/s. 271F - search u/s. 132 - failure to furnish return of income which has been confirmed by the ld. CIT (A) - HELD THAT:- We find that the notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be accepted as the Panchkula address do not pertain to the residential address to the assessee. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notices with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer. Admission of additional evidences - DR argued that the Panchanama, the bank statement and the proceedings PMLA Court/ACCM Special Act are not any additional evidences which has any material impact on the adjudication of the issue before the Tribunal - addition @10% of the gross receipts - HELD THAT:- The instant case doesn't meet the basic requirement of admitting of additional evidences. The assessee has been accorded sufficient opportunities which he fail to make use of. The additional evidences in the form of any document are examination can be allowed to be produced under the following circumstances -When the Tribunal feels that it is necessary to enable it to pass orders or For any substantial cause or Where the Income Tax authority did not provide sufficient opportunity to the assessee In the present case, none of the three conditions are fulfilled - we find that the proceedings add processes, before the ACCM, Panchanama and the bank statement cannot be treated as additional evidences under Rule 29 which are required for adjudication of the matter. Hence, the application of the assessee under Rule 29 is hereby rejected. AO determined 10% of the gross receipts as income of the assessee for the year in question - The assessee is in the business of manufacturing and trading of perfumery products. The assessee has not furnished any details before the AO or before the ld. CIT(A). The purported additional evidences proposed to be filed by the assessee before the Tribunal do not materially change the profit computed by the AO The gross receipts has reflected in the bank statements have been duly considered by the Assessing Officer while determining the profit @10%. Hence, we hereby uphold the profit determined by the authorities below. No useful purpose would be served by accepting the request of the ld. AR to set aside the case to the Assessing Officer for allowing another opportunity for making further inquiries. Appeals of the assessee are dismissed.
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