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2023 (8) TMI 1444 - ITAT MUMBAILevy of penalty u/s. 271B - violation of Section 44AB - As alleged assessee has failed to submit the report of the auditors and has not got the accounts audited, therefore, there was a contravention of Section 44AB and accordingly, penalty u/s. 271 B was initiated - assessee submitted that he has done all the investment considering himself as an investor and not as a trader - HELD THAT:- For violation of non maintenance of books of account u/s 44AA, there is a separate penal provision for levying penalty for non-maintaining of books of accounts prescribed u/s. 271A and therefore if at all penalty should have been levied under this section. The Hon’ble Allahabad High Court in the case of CIT vs. Bisauli Tractors [2007 (5) TMI 181 - ALLAHABAD HIGH COURT] had held that Section 271B of the Act is not attracted in the case where no account has been maintained and instead recourse u/s.271A can be taken. This principle has again been reiterated by the Hon’ble Allahabad High Court in the case of CIT vs. S.K Gupta [2009 (9) TMI 231 - ALLAHABAD HIGH COURT]. Similar view has been taken in the case of CIT vs. Surajmal Parsuram Todi [1996 (8) TMI 102 - GAUHATI HIGH COURT]. Accordingly, we hold that no penalty u/s.271B is leviable when assessee has not maintained the books of accounts. Accordingly, penalty is deleted. Decided in favour of assessee.
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