Mr. Manoj Kumar Gour, Jaipur V. ITO, wd-4(3), Jaipur

ITA 247/JPR/2021

AI Insights

The case involves Shri Manoj Kumar Gour, who was engaged in the purchase and sale of securities and did not file a return of income for the assessment year 2010-11, as he suffered losses. The Income Tax Officer (ITO) reopened his case and assessed a loss, subsequently imposing a penalty under section 271B for not getting his accounts audited as required under section 44AB. The assessee appealed against this penalty, arguing that he did not maintain any books of account, and thus, the audit requirement under section 44AB did not apply. The Tribunal examined the validity of the penalty in light of the absence of maintained books and the applicability of section 271B.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132302 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 10-11-2021
• Other Referred Cases: CIT vs. NTPC, North Eastern Constructions vs The ITO, Shahnaz Khanam vs The ITO, CIT vs. SSA's Emerald Meadows, CIT vs. Manjunatha Cotton and Ginning factory, ejpal Singh Nunia vs DCIT, Shri Subhash Sharma Vs DCIT, Yogendra Singh Shekhawat vs ITO, Roshni Devi vs ITO, Shri Sharad Kankaria vs ITO, CIT vs. S.K. Gupta and Co., CIT Bareilly v Bisauli Tractors, Surajmal Parsuram Todi vs. CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Question of law; Assessment record
• Section: 147; 148; 271(1)(c); 144; 143(1); 274; 271B; 44AB; 73

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER vk;dj vihy la-@ITA No. 247/JP/2021 fu/kZkj.k o"kZ@Assessment Year : 2010-11. Shri Manoj Kumar Gour 246, GaneshNagar, Opp. Balaji Engg. College, Benad Road, Jaipur. cuke Vs. The Income Tax Officer, Ward 4(3), Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AKSPG 9372 M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Vishal Gupta, C.A. jktLo dh vksj ls@ Revenue by : Ms. Monisha Choudhary, JCIT lquokbZ dh rkjh[k@ Date of Hearing : 22/11/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 15/02/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order of ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 14.09.2021 for the assessment year 2010-11. The assessee has raised the following grounds of appeal :- 1. On the facts and circumstances of the case, the CIT (A) has erred in law and facts by approving action of ld. AO of levying penalty u/s 271B for not getting the books of accounts audited when no books of accounts have been maintained by the assessee. The action of ld. AO was thus unjust and hence we hereby pray for deleting the said penalty. 2. On the facts and circumstances of the case, the CIT (A) has erred in approving action of ld. AO where he has disregarded and misinterpreted the basic accounting principles for calculation of turnover. Further, the ld. CIT (A) has dismissed the appeal without considering the reply by the assessee. This, it is hereby prayed to allow the relief to the assessee by calculating turnover as per basic accounting principles. 2 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. 3. On the facts and circumstances of the case, the CIT (A) grossly erred in dismissing the appeal filed by the assessee without considering or adjudicating additional ground raised by the assessee as Ground No. 5 which was purely legal in nature and did not require consideration of any facts that where not in possession of the ld. Officer while passing the order. Even no comment or observation was given by ld. Authority for admission or non-admission of the additional ground. Thus, it is hereby prayed that the order was against principles of natural justice and hence liable for being quashed. 4. On the facts and circumstances of the case and as an alternate plea, the assessee hereby prays that as he did not have any mens rea for not getting the books audited. Further, the assessee had no taxable income from the said business. Thus it is hereby prayed for deleting the said penalty. 5. The appellant hereby craves leave to add, alter, amend or substitute one or more grounds of appeal at the time of hearing. The assessee has also filed an application for admission of the following additional ground :- “ On the facts and circumstances of the case, the ld. AO grossly erred in assuming jurisdiction and hence imposing penalty upon the assessee on the basis of a vague notice dated 28.11.2017 in which even the charges upon the assessee were not clear. The notice as well as proceedings in pursuance of same were thus void ab initio and hence it is hereby prayed for quashing the said notice as well as the order passed in pursuance of such notice.” 2. I have heard the ld. A/R as well as the ld. D/R on admission of additional ground. We find that in the additional ground raised by the assessee the question of pure law is involved and for adjudication of the same no new facts or material are required to be verified or investigated. Therefore, when the issue raised in the additional ground can be adjudicated on the basis of the facts and material already on record, then in view of the decision of the Hon’ble Supreme Court in case of CIT vs. NTPC, 229 ITR 383 (SC), the additional ground raised by the assessee raising the issue of validity of notice is admitted for adjudication on merits. 3 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. 3. The brief facts of the case are that the assessee is an individual and was engaged in purchase and sale of securities for the year under consideration. The assessee suffered loss from such activities and did not file any return of income. The AO reopened the case of assessee under section 148 and concluded the assessment proceedings under section 147 read with section 144 of the IT Act, 1961 vide order dated 28.11.2017 (PB pages 1-5) in which loss was assessed at Rs. 43,658/-. The AO also issued show cause notice for imposing penalty under section 271B (PB page 6) and eventually imposed penalty under section 271B of Rs. 53,609/- vide order dated 24.05.2018 (PB Pages 7-10) alleging that the assessee’s turnover has exceeded the limit prescribed under section 44AB. Aggrieved by the said order of penalty under section 271B of the IT Act, the assessee preferred an appeal before the ld. CIT (A). The assessee made various submissions before the ld. CIT (A) but the assessee could not succeed and the ld. CIT (A) confirmed the order of the AO by passing the impugned order. Aggrieved by the order of the ld. CIT (A), now the assessee has come up before the Tribunal raising the above mentioned additional ground in addition to other grounds raised hereinabove. 4. First, I deal with the additional ground as the same goes to the root of the matter. 5. Before me, the ld. Counsel for the assessee submitted his written submissions as under :- “We hereby draw the attention of the Ld authority to Page No. 6 of paper book where we have attached the show cause notice issued by the Ld. A.O where we specifically draw the attention of the H’ble bench towards the following lines: 4 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. “On verification of NO RETURN filed by you for the Assessment Year 2010-11, it was found that you were liable to get your accounts audited.......” Thus, it can be clearly seen that the inference drawn was vague and also assessee was not intimated about any specific charge upon him. Further, even the turnover has not been mentioned in the said show cause notice. It has been held in various judicial pronouncements that penalty cannot be levied on the basis of a vague show cause notice i.e when there is no clear charge upon the assessee so as to enable him to reply. The cases relied upon are as follows: We rely upon the decision of the Guwahati bench of H’ble ITAT in the case of North Eastern Constructions vs The ITO, ITA 184/Gau/2019 where it was held in Para 10 and succeeding paras of the order as follows: “We have heard both the parties and perused the records. We note that the assessee had filed return of income for the AY 2015-16 on 31-03-2016 along with TAR. Thereafter, we note the department accepted the return of income filed by the assessee by issuing intimation u/s. 143(1) of the Act on 28-05- 2016. After two years on 15-05-2018, the AO had issued notice u/s. 274 read with section 271B of the Act proposing to levy of penalty u/s. 271B for the following faults: i) failed to get accounts audited or ii) failed to furnish a report of such audit as required u/s. 44AB of the Act Thus, we note that the AO has given a show cause notice, which is per-se vague. Thus, we note that the AO by issuing penalty notice u/s. 271B has not spelt out what was the fault for which the assessee is being proceeded against for levy of penalty. Since the AO has not struck down the irrelevant portion/fault which is not applicable in 5 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. the facts and circumstances of the case, the notice reproduced (supra) is vague and therefore, bad in law as held by the Co-ordinate Bench of the Tribunal in the case of Parkinson Electrical Corprn (supra). We are of the opinion that notice proposing penalty should clearly spell out the fault/charge for which the assessee is put on notice, so that he can defend the charge properly. The issue of bad/vague penalty notice was adjudicated by the Hon'ble Karnataka High Court [though in a different context i.e notice issued u/s.274 read with section 271(1)(c) of the Act] in the case of CIT vs. SSA's Emerald Meadows in ITA No.380 of 2015 dated 23.11.2015 wherein the Hon'ble High Court following its own decision in the case of CIT vs Manjunatha Cotton and Ginning factory (2013) 359 ITR 565 has held that if the penalty notice is vague, then the penalty order is also bad in the eyes of law. This decision of Karnataka High Court was challenged by the Revenue before the Hon'ble Apex Court, and the Hon'ble Supreme Court has dismissed the SLP. Therefore, applying the ratio- dicedenti in SSA's Emerald Meadows & M/s. Parkinson (supra), we are of the view that the notice issued by AO before levying penalty u/s. 271B of the Act is bad in law”. We further reply upon the decision of Hon’ble Apex Court in case of CIT vs. SSA’s Emerald Meadows – (2016) 73 com248 (SC) where dismissing the SLP filed by the Revenue quashing the penalty by the Tribunal as well as Hon’ble High Court on ground of unspecified notice has held as under:- “Section 274, read with section 271(1)(c), of the Income-tax Act, 1961 – Penalty – Procedure for imposition of (Conditions precedent) – Assessment year 2009-10 – Tribunal, relying on decision of Division Bench of Karnataka High Court rendered in case of CIT v. Manjunatha Cotton & Ginning Factory [2013] 359 1TR 565/218 Taxman 423/35 taxmann.com 250, allowed appeal of assessee holding that notice issued by Assessing Officer under section 274 read with section 271 (1 )(c) was bad in law, as it did not specify under which limb of section 6 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. 271 (1 )(c) penalty proceedings had been initiated, i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income – High Court held that matter was covered by aforesaid decision of Division Bench and, therefore, there was no substantial question of law arising for determination – Whether since there was no merit in SLP filed by revenue, same was liable to be dismissed – Held, yes [Para 2] [In favour of assessee]” We further rely on the decision of the coordinate bench in the case of ejpal Singh Nunia vs DCIT, Central Circle – 2, Jaipur, ITA No. 1294 to 1296/JP/2019 where the H’ble bench observed as under: “6. The law is well settled that penalty u/s 271(1)(c) can be imposed for concealing particulars of income or furnishing inaccurate particulars of income which are two limbs of the section 271(1) (c) but the penalty can be imposed only when the authority is satisfied that either of the two events of limbs exists in a particulars case and this perquisite should invariably be evident from the notice issued u/s 274 r.w.s 271 of the Act, which is a statutory jurisdictional notice. The intent and purpose of this notice is to inform the assessee as to for which specific charge he has been show caused. 7. In the present case, from the notice u/s 274 dated 27.12.2011, neither the assessee nor anyone else could make out as to 'for what precise charge, the assessee was asked to show cause viz. whether the charge is for furnishing inaccurate particulars of income or concealment of particulars of such income. It is further important to note that, in notice, under the point which is intended towards proposed penalty u/s 271(1)(c), the word OR has been used between the charge of concealment of income and furnishing inaccurate particulars of income. These facts and circumstances make it abundantly clear that in the case of assessee, penalty notice is completely vague and ambiguous. The AO simply issued a preprinted 7 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. notice without striking off the unnecessary charge and not mentioning the precise charge. The above act of the AO clearly shows that the entire exercise of initiation of penalty proceedings has been done without application of mind which resulted into issuing a completely vague jurisdictional notice u/s 274 and the jurisdictional notice being vague, the consequent levy of penalty is illegal and deserves to be deleted in full. 8. In view of above facts and circumstances, the initiation of penalty proceeding is void ab initio. For this purpose, reliance may be placed on the decision of Jaipur Bench of ITAT in the case of Shri Subhash Sharma Vs DCIT in ITA No.205/JP/2020 vide order dated 21.07.2020, wherein it was held as under: “5....................the notice issued by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 is bad in law in as much as it did not specify in which limb of section 271(1)(c) of the Income Tax Act, 1961 the penalty proceedings has been initiated, i.e. whether for concealment of income or furnishing of inaccurate particulars of income. 5.1. It is pertinent to note that in the notice, AO has not clearly mentioned the limb, on the basis of which, penalty was proposed to be imposed. The AO in assessment order or penalty notices did not specify the limb under which the penalty was initiated and simply issued a pre-printed notice without striking off the unnecessary portions of the notice. If the AC) was of the view that the assessee has concealed the income or furnishing inaccurate particulars of income then he should have deleted or not mentioned the other limb for imposition of penalty i.e. concealing the particulars of income. The above act of the AO clearly shows that the entire exercise of initiation of penalty proceedings has been done without application of mind. " 8 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. Though few of the above the above decisions have been delivered in context of Section 271(1)(c ), but the ratio behind the same is that whenever any penal proceedings are initiated against the assessee, there must be a specific charge in the notice by which jurisdiction is assumed. In absence of same, the assessee is not able to reply to same and hence it vitiates the entire proceedings. With the above submissions, we hereby pray the Ld. Bench to allow this ground and appeal of the assessee.” 6. On the other hand, the ld. D/R supported the orders of the Revenue authorities. 7. I have heard the rival submissions of both the parties, perused the material available on record and gone through the orders of the revenue authorities. The contention of the ld. A/R is that the show cause notice issued by ld. AO for levy of penalty u/s 271B is vague and hence in view of decisions of various judicial authorities has requested to quash the show cause notice and penalty levied in consequence thereto. He has relied on the judgments of Guwahati Bench of ITAT in the case of North Eastern Constructions vs. The ITO, ITA 184/Gau/2019, and judgment of this Bench of ITAT in the case of Shri Subhash Sharma Vs DCIT in ITA No.205/JP/2020 for the same. He has submitted that the ld. A/O has not mentioned about the turnover of the assessee to reach to the conclusion of default as prescribed u/s 271B of the Income Tax Act, 1961 and accordingly has requested to treat the notice as vague. 7.1 In the case of North Eastern Constructions vs. The ITO, ITA 184/Gau/2019 the Bench had observed that the notice was issued by mentioning both the defaults of the assessee u/s 271B viz. not getting the books audited or not filing the audit 9 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. report to the AO as prescribed u/s 44AB of the Income Tax Act, 1961. It is important to note that the ld. AO in this cited case did not tick relevant default as to whether the assessee failed to get the books audited u/s 44AB or whether he failed to submit the audit report u/s 44AB to the AO and has used the word "or" between both the defaults and under such circumstances the Bench held the notice to be vague and deleted the penalty. However, in the present case the ld. AO has very clearly mentioned in his show cause notice that the assessee failed to get the books audited u/s 44AB and failed to submit audit report before AO. From this language used by the ld. AO in the show cause notice it is clearly apparent that the ld. AO was of clear mind about the default of the assessee and, therefore, the reliance placed by the ld. A/R on this cited judgment is distinguishable. Therefore, I do not find any force in the contention of the ld. A/R. Thus the additional ground raised by the assessee is decided against the assessee. The additional ground is dismissed. Ground nos. 1 & 2 are inter-related challenging the levy of penalty under section 271AB for not getting the books of accounts audited. 8. Before me, the ld. Counsel for the assessee submitted that during the assessment year under consideration, the assessee was engaged in the business of purchase and sale of securities. The ld. A/R of the assessee submitted that since the assessee suffered loss from such activities, he did not file any return of income. During the course of assessment proceedings, the assessee submitted that he was not maintaining any regular books of accounts and, therefore, there was no audit of books of account. The AO completed the assessment on the basis of requisite information and details received and after test check estimated the turnover of the 10 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. assessee at Rs. 1,07,21,863/- and assessed the income at Rs.(-) 43,658/-, and also initiated the proceedings for levy of penalty u/s 271B for not getting the books of accounts audited u/s 44AB of the Income Tax Act, 1961 and thereafter, levied the penalty for Rs. 53,609/-. The ld. A/R has further controverted that the assessee has maintained books of accounts as mentioned by the AO in para 4 of the penalty order. The ld. A/R further submitted that before the Tribunal, the matter for consideration is against the levy of penalty under section 271B for non audit of accounts. The ld. A/R of the assessee has submitted that since the assessee has not maintained any books of accounts, therefore, the question of audit of same does not arise. In this regard the ld. A/R reproduced the section 271B as under :- “ Sec. 271B If any person fails to get his accounts audited in respect of any previous year or years relevant to an assessment year or furnish a report of such audit as required under section 44AB, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of one hundred fifty thousand rupees, whichever is less”. The ld. A/R thus submitted that the default mentioned in this penal provision is not getting the accounts audited by the assessee. Once it has been established that assessee has not maintained any books of accounts, the question of invoking penal provisions under section 271B does not arise. The ld. A/R further submitted in his written submissions as under :- “ We draw the attention of Ld. Appellate authority to definition of books of accounts (Section 2(12A) as per the act which clearly stipulates as follows: 11 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. "books or books of account" includes ledgers, day-books, cash books, account-books and other books, whether kept in the written form or as print-outs of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device ; In the present case, the assessee was maintaining neither of these documents. The only information which the Ld. A.O was having for assessment was the statement of share broker i.e a third party which he has obtained directly from the broker. Thus, the Ld. A.O erred in treating the statement received by him from share broker as books of accounts of the assessee. A statement from a third party can never be books of accounts by any stretch of mind. We have inspected the assessment record and verified this fact that no other document was with the Ld. A.O on records except the said statement. If required, the H’ble bench may reconfirm the same. Thus, in absence of books of accounts, the audit of same is not possible as held in various legal precedents which are mentioned hereunder. We however bring to the notice of H’ble bench that the Ld. A.O has vaguely mentioned in Para 4 of the order that assesse has produced books of accounts whereas assessee has not maintained same at all. We rely upon the decision of the jurisdictional ITAT, Jaipur in the case of Shahnaz Khanam, Jhalawar vs The ITO, Jhalawar, ITA No. 38/JP/2018 where it was held by the H’ble bench that “Accordingly, in view of the binding precedent, we hold that once the assessee found to have not maintaining the regular books of account as contemplated by Section 44AA of the Act the default was completed and therefore, after the default of not maintaining the books of accounts there cannot be a further default for not getting the same audited as required U/s 44AB of the Act. Hence, the penalty of levy by the AO U/s 271B is not justified and the same is deleted”. 12 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. We also rely upon the landmark judgements of H’ble Allahabad High Court in the case of CIT Vs. S.K. Gupta and Co. [2010] 322 ITR 86 (All.) where similar findings were given by the honorable court which are as follows: “We have heard Sri A.N. Mahajan, learned standing counsel for the Revenue and Sri R.R. Kapoor, learned counsel appearing for the respondent assessee. Sri Mahajan contended that the Tribunal has erred in law while upholding order of the CIT(A) cancelling the penalty in as much as the assessee had failed to get its books of account audited. The submission of Sri Mahajan is misconceived for the reason that the requirement of getting the books of account audited could arise only where the books of accounts are maintained. If for some reason the assessee has not maintained the books of account the appropriate provision under which penalty proceedings can be initiated is under s. 271A of the Act which recourse has also been taken by the assessee as would appear from the order of the Tribunal. The Tribunal was, therefore, justified in upholding the order of the CIT(A) cancelling the penalty imposed under s. 271B of the Act”. We further place our reliance on the decision delivered in the case of CIT Bareilly v Bisauli Tractors – (2008) 299 ITR 219, the H’ble Allahabad High Court held that: “14. Therefore, Section 27IB of the Act is not attracted in a case where no account has been maintained and instead recourse under Section 271A can be taken. 15. In view of the foregoing discussions we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. There will be no order as to costs”. We also rely upon the judgement of Hon’ble Gauhati High Court in case of SurajmalParsuramTodi vs. CIT 222 ITR 691 where it was held by the court that “ We have gone through the provisions of sections 44AA, 44AB, 271A and 271B of the Act. Maintenance of accounts is envisaged under 13 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. section 44AA and on failure to do so the assessee shall be guilty and liable to be penalised under section 271A. 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 the books of account audited by an accountant. But when a person commits an offence by 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, in our opinion, the imposition of penalty under section 271B is erroneous. The Tribunal has overlooked this aspect of the matter. Of course, it is apparent from the records that the assessee failed to maintain the books of account as required under section 44AA and for that penalty is prescribed under section 271A. It is for the Tribunal to take action in accordance with law”. Similar findings were given by jurisdictional H’ble ITAT, Jaipur in the case of Yogendra Singh Shekhawat vs ITO, Ward 3(1), Jaipur, ITA No. 1001/JP/2016 relying upon the decisions in the case of Hon’ble Gauhati High Court in case of SurajmalParsuramTodi vs. CIT 222 ITR 691 &h’ble Allahabad High Court in the case of CIT Bareilly v Bisauli Tractors – (2008) 299 ITR 219 . We further place our reliance upon decision of coordinate bench in the case of Roshni Devi vs ITO, Ward 3(1), Jaipur, ITA No. 953/JP/2017 pronounced on 16.05.2018 in which it was held that: “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 fact that there are no regular books of accounts which have been maintained at first place. Our view is fortified by the decision of the Hon’ble Gauhati High Court in case of RajmalParsuramTodi (supra) wherein it was held that when a person commits an offence by not maintaining the books of accounts as contemplated under section 44AA, the offence is complete and after 14 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. that, there can be no possibility of any offence as contemplated under section 44AB and therefore, the imposition of penalty under section 271B is erroneous.” We further rely on the judgement passed by coordinate bench in Appeal No. ITA No. 262/JP/2019 in the case of Shri SharadKankaria vs ITO, Ward- 6(1), Jaipur wherein it was held that “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 Rs. 1,50,000/- confirmed by the ld. CIT(A). Thus the solitary ground of the assessee is allowed”. We thus hereby pray the Ld. authority to allow this ground raised by the assesse.” 9. On the other hand, the ld. D/R supported the orders of the Revenue Authorities. 10. I have heard ld. Counsels for both the parties, perused the material available on record and gone through the orders of the Revenue authorities. The matter for consideration before me is against the levy of penalty under section 271B for non audit of accounts. I have considered the rival submissions as well as relevant material on record and note that the assessee has committed the default for not maintaining the regular books of accounts as required under section 44AA of the Act. The Assessing Officer has imposed penalty under section 271B for not getting the books of accounts audited. It is pertinent to note that when the assessee did not maintain the regular books of account then the question of getting the books of accounts audited does not arise. In this regard, I find that the Coordinate Bench of 15 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. the Jaipur Tribunal has dealt with the similar issue in the in the case of Shahnaz Khanam vs. ITO in ITA No. 38/JP/2018 wherein considering the various judgments of the Hon’ble High Courts decided the issue in its order in paras 6 to 7 as under :- “6. Having considered the rival submissions as well as relevant material on record we note that the assessee has committed the default for not maintaining the regular books of accounts as required un/s 44AA of the Act. The Assessing Officer has already imposed the penalty u/s 271A for violation of the provisions of section 44AA of the Act. The AO has also imposed the penalty u/s 271B for not getting the books of accounts audited. It is pertinent to note that when the assessee did not maintain the regular books of account then the question of getting of books of accounts audited does not arise. Once, there is a violation of provisions of section 44AA of the Act the said violation cannot be extended to section 44AB of the Act. The provisions of section 44AB of the Act can be invoked only when the assessee has complied with the provisions of section 44AA of the Act. Therefore, the violation of section 44AA of the Act cannot continue because once it is found that the assessee did not maintain the regular books of account, the said violation cannot travel beyond the provisions of section 44AA and hence, cannot be held as a further violation of section 44AB of the Act. The Hon’ble Allahaband High Court in case of CIT Vs. Bisauli Tractors (supra) while dealing with this issue as held in paras 11 to 14 as under:- “11. In the case of S. Narayanappa & Bros. v. CIT [1961] 41 ITR 125 the Mysore High Court has held as follows : "What was urged before us was that in a case where an assessee has furnished no return at all before the Income-tax Officer, it should be presumed for the purposes of section 28(1)(b) that he has furnished a return of his income intimating the Income-tax Officer that his income is nil. It seems to me that the language of section 28(1) does not admit of any such construction since the clear requirement of the provisions of this sub-section is that 16 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. an assessee on whom a penalty is proposed to be imposed under section 28(1)(b) should have in the first instance furnished his return. That, in my opinion, is the ordinary and grammatical meaning of the words occurring in the Act. To interpret the language of this provision in the manner suggested by the learned Government Pleader would, in my opinion, be too artificial and too far-fetched to commend itself for acceptance. Although it is true that the provisions of a statute like those contained in section 28(1)(b) have to receive to construction so as to promote the object of the statute, it is clear that when we interpret a penal provision like that contained in section 28(1)(b), the interpretation we should place upon it must accord with reason and justice and must be in accordance with the plain ordinary and rational meaning of the words contained in those provisions. So interpreted, I would not, in my opinion, be right in placing on section 28(1)(b) the construction for which the learned Government Pleader contends." (p. 133) 12. The Madras High Court in the case S. Santhosa Nadar v. First Addl. ITO [1962] 46 ITR 411 has gone to the extent that a voluntary return filed after the period of four years from the close of the assessment year is not a valid return and such a case should be regarded as if no return has been filed at all and it cannot be said in such a case that there has been a concealment of the particulars of income or deliberate furnishing of inaccurate particulars and section 28(1)(c) of the Income-tax Act, 1922 would not be applicable. The Madras High Court has held as follows : "When we come to section 28(1)(c ), it deals specifically with the concealment of ‘particulars’ of income or the deliberate furnishing of inaccurate ‘particulars’ of income. In the setting in which this subsection finds place it is impossible to construe section 28(1)(c) except as relating to a case where a return has been filed but from which return particulars of income have been omitted or any particulars have been deliberately inaccurately furnished. The use of the expression ‘particulars of his income’ and ‘particulars of such income’ would be wholly inapposite in a case where no return has at all been filed; such a case would clearly come within the scope of section 28(1)(a) alone." 13. This Court in CWT v. Yadu Raj Narain Singh [2006] 286 ITR 564 also taken the same view. It has held as follows : "Thus applying the strict construction of penalty provisions contained in clause (1) of sub-section (c) of section 18 of the Act, we find that prior to the amendment in Explanation 3 by the Direct Tax Laws (Amendment) Act, 1987 with effect from 1-4-1989 in a 17 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. case where the person who has previously been assessed under the Act does not file any return in response to the notice or even where time for filing the return has expired has not filed any return there cannot be any concealment for which penalty provision can be imposed. In view of the foregoing discussions, we are of the considered opinion that in the present case the respondent assessee has not concealed the particulars of his income for which wealth no penalty under clause (1) of sub- section (c) of section 18 of the Act is exigible. 14. Therefore, section 271B of the Act is not attracted in a case where no account has been maintained and instead recourse under section 271A can be taken.” 7. A similar view has been taken by the Hon’ble Gauhati High Court in case of Surajmal Parsuram Todi vs. CIT (supra) and held in para 6 as under:- “6. We have gone through the provisions of sections 44AA, 44AB, 271A and 271B of the Act. Maintenance of accounts is envisaged under section 44AA and on failure to do so the assessee shall be guilty and liable to be penalised under section 271A. 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 the books of account audited by an accountant. But when a person commits an offence by 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, in our opinion, the imposition of penalty under section 271B is erroneous. The Tribunal has overlooked this aspect of the matter. Of course, it is apparent from the records that the assessee failed to maintain the books of account as required under section 44AA and for that penalty is prescribed under section 271A. It is for the Tribunal to take action in accordance with law. The Delhi Benches of the Tribunal in case of Nirmal Kumar Jain vs. ITO (supra) has held in paras 3 & 4 as under:- “3. In so far as the penalty u/s 271B is concerned, it is noticed that the AO has recorded a categorical finding on page 2 of the assessment order that no books of account were maintained by the assessee. Under such circumstances, a question arises as to whether any penalty 18 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. can be imposed u/s 271B for not getting the books of account audited. The Hon'ble Gauhati High Court in Surai Mal Parasuram Todi vs. CIT (1996) 222 ITR 691 (Gau.), has held that where no books of account are maintained, penalty should be imposed for non- maintenance of books of account u/s 271A and no penalty can be imposed u/s 271B for violation of section 44AB requiring ITA Nos.6696 & 6645/Del/2014 audit of accounts. Similar view has been taken by the Hon'ble Allahabad High Court in CIT vs. Bisauli Tractors (2008) 299 ITR 219 (All). The Hon'ble Allahabad High Court reiterated the similar view in CIT and Anr. Vs. S.K. Gupta and Co. (2010) 322 ITR 86 (All) by holding that requirement of getting the books of account audited can arise only where the books of account are maintained. In the absence of the maintenance of books of account, there Can be no penalty u/s 271B of the Act. In view of the foregoing legal position emanating from the judgment of the two Hon’ble High Courts, we are convinced that penalty u/s 271B ought not to have been levied because the assessee admittedly did not maintain any books of account as has been recorded in the assessment order itself. We, therefore, order for the deletion of penalty. 4. As regards the imposition of penalty u/s 271(1)(c) of the Act on the addition of Rs.7.50 lac, we find that this addition has resulted on estimation of income at 5% on estimated sales ITA Nos.6696 & 6645/De1/2014 of Rs.1.50 crore. Except that there is no other basis for imposition of penalty. The Hon'ble Delhi High Court in CIT vs. Aero Traders P. Ltd. (2010) 322 ITR 316 (Del) has upheld the view taken by the Tribunal in deleting penalty u/s 271(1)(c) which was imposed on the basis of addition made by the AO on estimated profit. Similar view has been taken in a series of judgments including the Hon'ble Punjab & Haryana High Court in CIT vs. Dhillon Rice Mills (2002) 256 ITR 447 (P&H). In this case also, the Hon'ble Punjab & Haryana High Court approved the view taken by the Tribunal in deleting the penalty u/s 271(1)(c) which was based on an estimate of income made by the AO. In view of the foregoing decisions, it is clear that the penalty so confirmed in the instant case cannot be sustained because it was imposed by the AO on the estimate of income made by him. We, therefore, order for the deletion of penalty.” Accordingly, in view of the binding precedent, we hold that once the assessee found to have not maintaining the regular books of account as contemplated by Section 44AA of the Act the default was completed and therefore, after the default of not maintaining the books of accounts there cannot be a further default for not getting the same 19 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur. audited as required U/s 44AB of the Act. Hence, the penalty levied by the AO under section 271B is not justified and the same is deleted.” Therefore, following the judgments of the Hon’ble High Courts and the various decisions of the Coordinate Benches of the Tribunal as discussed hereinabove, I am of the opinion that the imposition of penalty under section 271B is not justified and bad in law. The penalty is deleted. 12. Ground Nos. 3 & 4 are not pressed, hence the same are dismissed as not pressed. 12. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 15/02/2023. Sd/- ¼lanhi xkslkbZ½ (SANDEEP GOSAIN) U;kf;d lnL;@ Judicial Member Tk;iqj@Jaipur fnukad@ Dated:- 15/02/2023. Das/ vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant-Shri Manoj Kumar Gour, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Ward 4(3), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File {ITA No. 247/JP/2021} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 20 ITA No. 247/JP/2021 Shri Manoj Kumar Gour, Jaipur.