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2024 (3) TMI 940 - ITAT MUMBAIPenalty u/s. 271B - penalty u/s. 271A has been levied as assessee has not audited his book of accounts as per the provisions of section 44AB - HELD THAT:- It is a settled proposition of law that once the penalty has been levied u/s. 271A of the Act for non maintenance of books of accounts, then penalty u/s. 271B of the Act cannot be levied. See Varadagovind Parthasarthy Iyer [2023 (8) TMI 1444 - ITAT MUMBAI]. Once the penalty u/s. 271A has been levied for non maintenance of books of accounts, no penalty u/s. 271B of the Act can be levied. This view has been supported by the decisions of various high courts. It is observed that in the present case in hand the ld. A.O. had levied a penalty u/s. 271A of the Act which according to the ld. AR has been accepted and paid by the assessee. As per the decisions cited herein above, we deem it fit to hold that penalty u/s. 271B of the Act cannot be levied in the present facts of the case for non auditing of the books of accounts where the assessee has failed to maintain the same. We hereby direct the ld. A.O. to delete the impugned penalty. Ground no. 1 raised by the assessee is hereby allowed. Penalty u/s. 271(1)(c) - Assessee has concealed the particulars of income during the year under consideration - CIT(A) upheld the penalty vide an ex parte order holding that the assessee has failed to substantiate his claim neither by documentary evidence nor by the submission of the assessee - assessee contended that there has been no variation in the returned and assessed income - HELD THAT:- It is observed that the assessee had filed his return of income in response to notice u/s. 148 of the Act, declaring total income which amounts to business income on the total turnover and commission income which aggregates to Rs. 6,57,615/- out of which the assessee had claimed deduction of Rs. 15,970/- under Chapter VIA of the Act. A.O. in the assessment proceeding had accepted the return of income filed by the assessee and determined the total income without any variation between the returned and the assessed income From the above observation, we deem it fit to hold that as there has been no variation in returned and the assessed income, there could not be any possibilities of the assessee concealing the particulars of income which could attract the provision of section 271(1)(c) of the Act. We hereby deem it fit to direct the ld. A.O. to delete the impugned penalty levied u/s. 271(1)(c) of the Act. Hence, the grounds raised by the assessee are hereby allowed.
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