TMI Blog2024 (3) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income Tax (Appeals) ( ld.CIT(A) for short), National Faceless Appeal Centre ( NFAC for short) passed u/s. 250 of the Income Tax Act, 1961 ( the Act'), pertaining to the Assessment Year ( A.Y. for short) 2016-17. 2. As the facts are identical, we hereby pass a consolidated order in both the appeals by taking ITA No. 2906/Mum/2023 as the lead case for the sake of convenience. ITA No. 2906/Mum/2023 3. The assessee has in this appeal challenged the penalty levied u/s. 271B of the Act by the ld. Assessing Officer ('A.O.' for short) and upheld by the ld. CIT(A) vide an ex parte order. 4. The brief facts are that the assessee is an individual engaged in the business of trading in plastic bags and also into the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us. 8. The learned Authorised Representative ('ld. AR' for short) for the assessee contended that the ld. A.O. in the assessment proceeding had accepted the returned income filed by the assessee but had levied penalty for the reason that the assessee has not audited his book of accounts as per the provisions of section 44AB of the Act. Without considering the fact that the assessee s total business turnover was only Rs. 19,05,735/- the ld. A.O. has taken Rs. 1,45,68,340/- as the gross amount of commission received by the assessee. The ld. AR further stated that the ld. CIT(A) had disposed of the appeal without getting into the merits of the case. The ld. AR contended that the ld. A.O. had initiated the penalty proceedings u/s. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The co-ordinate bench in the case of Varadagovind Parthasarthy Iyer (through the legal heir Arvind Iyer) (supra) has held the same and the relevant extract of the said decision is cited hereunder for ease of reference: 6. After considering the relevant facts placed on record and also the orders passed by the authorities below, we find that the penalty has been levied u/s. 271B for violation of Section 44AB, ie., failure to get the accounts audited. It is not in dispute that assessee has not maintained any books of accounts as required ws.44AA. For violation of non maintenance of books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks 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. 13. As we have deleted the impugned penalty, the other grounds of appeal raised by the assessee requires no further adjudication. 14. In the result, the appeal filed by the assessee is allowed. ITA No. 2904/Mum/2023 15. The assessee in this appeal has challenged the penalty levied u/s. 271(1)(c) of the Act amounting to Rs. 53,820/-. As the facts have already been elaborated in ITA no. 2906/Mum/2023, we deem it fit to decide the issue without reproducing the facts. The ld. A.O. in the present case has levied the impugned penalty for the reason that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceeding had accepted the return of income filed by the assessee and determined the total income at Rs. 6,41,650/- without any variation between the returned and the assessed income. The ld. AR has placed reliance on the decision of the Tribunal in the case of Armoury International (supra) which has held that when the returned income and the assessed income are the same, penalty u/s. 271(1)(c) of the Act cannot be levied. The relevant extract of the said decision is cited hereunder for ease of reference: 6. We have heard both the counsel and perused the records. We find that the assessment in this case has been completed on the returned income. Hence, when the return of income and the assessed income are same, the machinery provision fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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