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2024 (6) TMI 1201 - AT - Income TaxPenalty u/s 271B - not getting books of accounts audited as per the provisions of section 44AB - Assessee submitted that the assessee has not written up the books of accounts till the date of finalization of audit within the due date specified u/s 44AB accordingly there was no possibility of getting accounted u/s 44AB HELD THAT - The undisputed fact is this that the assessee did not file any return of income under the provisions of section 139(1) of the Act. The return was filed in response to the notice issued under section 148 of the Act on account of income escaping assessment. Thus there remains no ambiguity that the books of accounts of the assessee were not written up before the due date of filing the return of income as specified u/s 139(1) of the Act. This fact can be verified from the penalty order framed by the AO under section 271B of the Act. Once it is established that the books of accounts were not written up within the due date of filing the return of income the question of getting them audited to comply the provision of section 44AB of the Act does not arise. As such the first default of the assessee on stand-alone basis is non-maintenance of books of account u/s 44AA of the Act which is complete offence. Therefore such default i.e. non-maintenance of the books of accounts is subject to the penalty under the provisions of section 271A . As decided in BISAULI TRACTORS 2007 (5) TMI 181 - ALLAHABAD HIGH COURT as separate penalty has been provided for non-maintenance of accounts i.e. under section 271A and for not getting the accounts audited and not furnishing the audit report i.e. under section 271B - If a person has not maintained the accounts book or any accounts the question of its audit does not arise. In such an event the imposition of penalty under the provision contained in section 271A of the Act for the alleged non-compliance of section 44AA of the Act may arise but the provisions of section 44AB of the Act does not get violated in case where the accounts have not been maintained at all and therefore penal provisions of section 271B of the Act would not apply. Also see SURAJMAL PARSURAM TODI VERSUS COMMISSIONER OF INCOME-TAX 1996 (8) TMI 102 - GAUHATI HIGH COURT Therefore the assessee can get the immunity from the penalty specified u/s 271B of the Act. Contention of the Ld. DR that the assessee has written up the books of accounts is misplaced. Indeed the assessee has written up books of account but on a later date. As such the Ld. DR has not brought any concrete evidence justifying that the books of accounts of the assessee were written up before the due date of filing return of income as specified under section 139 of the Act and therefore the assessee has contravened the provisions of section 44AB. We hold that the assessee did not maintain the books of accounts within the due date specified u/s 139(1) of the Act so as to comply the provisions of section 44AB of the Act. Accordingly the assessee cannot be visited to the penalty for the offence committed by the assessee for not getting accounts audited. Decided in favour of assessee.
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