Income Tax Appellate Tribunal - Pune
Ram Prakash C. Puri vs Assistant Commissioner Of Income-Tax on 18 April, 2000
Equivalent citations: [2001]77ITD210(PUNE)
ORDER
1. The only grievance projected in this appeal by the assessce is that the learned CIT (Appeals) is not justified in confirming penalty of Rs. 29,315 levied by the Assessing Officer under section 271B of the Income-tax Act.
2. The asscssee is a civil contractor. From the return filed, the Assessing Officer noted that the gross receipts from contracts exceeded Rs. 40 iakhs. As such, the assessee was required to get his accounts audited as per the provisions of section 44AB. As the assessee failed to get his accounts audited, the Assessing Officer initialed penalty proceedings under section 271B and, after giving an opportunity of being heard to the assessee, levied the impugned penalty.
3. The assessce appealed before the CIT (Appeals) and submitted that he had not maintained any books of account and for non-maintenance of account she had suffered a penalty of Rs. 2,000 under section 271 A. Since no books of account were maintained, the assessce was not required to get the books audited. The CIT (Appeals) was not satisfied with the contentions made by the assessee in the appeal memo and proceeding ex purte, he confirmed the penalty.
4. Shri M.K. Kulkarni, the learned counsel for the assessce, submitted that the asscssee was a civil contractor and he had not maintained any books of account. Hence he had already committed a default and was penalised under section 271A for non-maintenance of accounts. There was no justification for levying penalty under section 271B in view of the judgment of the Gauhatt High Court in the case of SurajmalParsuratn Todi v. CIT[1996] 222 ITR 691. He further submitted that She return was filed under section 139(4) and provisions of section 44AB were not applicable when the return was filed under section 139(4).
5. Shri Adhir Jha, the learned D.R. relied upon the orders of the authorities below.
6. I have considered the rival submissions and perused the facts on record. It is noted that the asscssee is a civil contractor and he has not maintained any accounts and had returned income by estimating profits on contract receipts and penalty of Rs. 2,000 was levied by the Assessing Officer under section 271A for non-maintenance of accounts. Accordingly, penalty under section 271B is not justified in view of the judgment of the Gauhati High Court in SurajmalParsitram Todi's case (suprd) wherein it has been held that sect ion 44A A of the Income-tax Ael, 1961 imposes a duty on the assessee to maintain books of aeeount and on failure to do so the assessec shall be liable to be penalised under section 271A of the Act. Even after maintenance of books of account the obligation of the assessee does not come to an end. He is required to do something more, i.e. by getting books of account audited by an accountant. But when a person commits the offence of not maintaining the books of account as contemplated by section 44AA, the offence is complete. After that, there can be no possibility of any offence as contemplated by section 44AB and, therefore, penalty cannot be imposed under section 271B of the Act. Accordingly, I delete the penalty.
7. In the result, the appeal is allowed.