TMI Blog2020 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments against the findings of the lower authorities. We find no reason to interfere with the order of the ld. CIT(A). Thus the solitary ground of the assessee as to confirming of penalty u/s 271A of the Act by the ld. CIT(A) is sustained. Penalty u/s 271B - non-audit of books of accounts - HELD THAT:- We have upheld the levy of penalty under section 271A for non-maintenance of books of accounts. Once the penalty has been levied for non-maintenance of books of accounts, there cannot be penalty again for non-audit of books of accounts which were not kept at first place. It is clearly a case of impossibility of performance where it is expected that the assessee should get her books of accounts audited when it is a known and admitted fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No. 263/JP/2019 A.Y. 2011-12 u/s 271B in the facts and circumstances of the case and in law the ld. CIT(A) has erred in confirming the actions of AO in levying penalty of ₹ 1,50,000/- u/s 271B. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the said penalty of ₹ 1,50,000/- 2.1 The solitary grievance of the assessee in this appeal is regarding confirming the penalty of ₹ 25,000/- u/s 271A of the Act by the ld. CIT(A). In this appeal of the assessee, it is noted that the AO has imposed the penalty of ₹ 25,000/- by observing as under:- 4. I have considered the material available on record and the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 at an income of ₹ 7,82,150/-. As per the details available with the department, the assessee had received aggregate receipt from business of ₹ 5,82,860/- during the year under consideration. The AO noted that the assessee has shown the income from business under the category of no books case. The AO further noted that as per the provisions of Section 44AAA(2) of the Act every person carrying on business or profession and the gross receipts exceeds ₹ 10 lacs in the just preceding year or in case where the business or profession is newly set up in any previous year and his income from business or profession is likely to exceed ₹ 1.20 lacs or the total sales, turnover or gross receipts as the case may be likely to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the ld. CIT(A) made by the AO u/s 271B of the Act. The facts as emerges from the ld. CIT(A) s order are as under:- 4.3 I have gone through the penalty order, statement of facts, grounds of appeal and written submissions carefully. It is seen that the AO has levied the penalty holding that the appellant had the turnover of ₹ 3,13,27,893/- in trading of shares. The appellant has contended that only transaction of ₹ 48,61,090/- were delivery based transactions and the transactions of ₹ 2,60,85,508/- were non-delivery based transactions. Therefore, turnover of the appellant was only ₹ 59,61,001/-which has been worked out by the appellant as under:- S.N. Particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his claim that the turnover of ₹ 2,60,85,508/- was non-delivery based speculative transactions but he could not produce the evidence to prove his contention. Therefore, the contention of appellant that only transactions of ₹ 48,61,090/- were delivery based transactions and all other transactions were non-delivery based speculative transactions cannot be accepted. As the appellant has failed to get his accounts audited u/s 44AB and he has also failed to show that there was any reasonable cause for not getting the books of accounts audited, therefore, the penalty of ₹ 1,50,000/- made by the AO u/s 271B is hereby confirmed. 3.2 We have heard the rival contentions and perused the materials available on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, there can be no possibility of any offence as contemplated under section 44AB and therefore, the imposition of penalty under section 271A is erroneous. In the result, the levy of penalty under section 271B is hereby deleted. Since the issue in question is covered by the decision of the ITAT Coordinate Bench in the case of Roshni Devi vs ITO (supra), therefore, respectfully following the decision of this Bench on the issue of deleting the penalty u/s 271B of the Act, we direct the AO to delete the penalty of ₹ 1,50,000/- confirmed by the ld. CIT(A). Thus the solitary ground of the assessee is allowed. 4.0 In the result, the appeals of the assessee in the case of penalty u/s 271A is dismissed and in the case of penalty u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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