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TMI Blog2024 (6) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Years 2011-2012 & 2012-13. 2. First, we up take up ITA No. 57/RJT/2023, an appeal by the assessee for AY 2009-10. The only grievance raised by the assessee is that Ld. CIT (A), erred in confirming the penalty levied by the AO for Rs. 1,50,000/- u/s 271B of the Act. 3. In the present case, the AO has levied penalty u/s 271B of the Act, on account of not getting books of accounts audited as per the provisions of section 44AB of the Act. The order passed by the AO was subsequently upheld by the Ld. CIT (A). 4. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 5. The Ld. AR before us, among other contentions, submitted that the assessee has not written up the books of accounts till the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t statement, Form 26AS, copy of P&L and balance sheet, proprietors capital account etc. in response to he notices to the assessee. In view of the above, the case of the assessee is factually different from the case laws cited above wherein no books of accounts were found to be maintained. The assessee has himself submitted the book of accounts during the assessment proceedings. Hence, in view of the discussion above, the facts of the case of the assessee are distinguishable from the case laws cited and therefore the ratio of those cases may not be applicable in the present set of facts. 4. Moreover, the assessee in the instant appeals have not shown as to how it was under any bonafide belief that tax audit u /s 44A4B was not required or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, it is requested that the order of ld. CIT (A) may be confirmed and the appeal of the assessee be dismissed. 7. We have heard the rival contentions of both the parties and perused the materials available on record. 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, it is apparent from the records that the assessee failed to maintain the books of account as required under section 4444 and for that penalty is prescribed under section 271A. It is for the Tribunal to take action in accordance with law. 3. In view of the above observations, we answer the question in the negative and in favour of the assessee. 7.1 Likewise, the Hon'ble High Court of Allahabad in the case of CIT vs. Bisauli Tractors reported in 165 taxman 1 has held as under: It may be mentioned here that separate penalty has been provided for non-maintenance of accounts, i.e., under section 271A4 of the Act and for not getting the accounts audited and not furnishing the audit report i.e., under section 271B of the Act. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hence, we set aside the findings of Ld. CIT (A) and direct the AO to delete the penalty levied by him. Thus, the ground of appeal of the assessee is hereby allowed. 8. In the result, the appeal filed by the assessee is hereby allowed. Coming to ITA No. 58/RJT/2023, an appeal by the assessee for the Assessment Year 2012-13. 9. At the outset, we note that the issue raised by the assessee in the captioned appeal for the AY 2012-13 is identical to the issue raised by the assessee in ITA No. 57/Rjt/2023 for the assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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