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2020 (6) TMI 719 - AT - Income TaxPenalty u/s 271B - AO has already imposed penalty u/s 271A on the appellant for non maintenance of books of accounts - survey operation u/s 133A - During the assessment proceedings, the fact of surrender of undisclosed income was disputed and the AO made addition based on the statement recorded during the proceedings u/s 133A - HELD THAT:- In the instant case, the 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. Hence, there is 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.
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