SMT. ROSHNI DEVI, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 952/JPR/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6130 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: N S VYAS
• Keywords: Business income; Bonafide belief; Additional evidence; Reasonable cause; Wrong claim; Agreed addition; Bonafide mistake

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NOS. 951, 952 & 953/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 ROSHNI DEVI, 445, LIONS LANE, KHATIPURA, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AJTPD 9081 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI N.S. VYAS (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/05/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/05/2018 VKNS'K@ ORDER PER BENCH: THESE ARE THE THREE APPEALS FILED BY THE ASSESSEE A GAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A)-I, JAIPUR DATED 05/09/2017 FOR THE A.Y. 2011-12 WHEREIN THE ASSESSEE HAS CHALLENGED THE ACTI ON OF THE ASSESSING OFFICER IN LEVYING THE PENALTY U/S 271(1)(C), 271A AND 271B OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). ALL THESE APPEALS WERE HEARD TOGETHER AND THE SAME ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER. 2. EARLIER, ALL THESE APPEALS WERE DISMISSED IN LIMI NE FOR WANT OF PROSECUTION BY THE COORDINATE BENCH VIDE ITS ORDER DATED 09/01/2018, WHICH HAS SUBSEQUENTLY BEEN RECALLED VIDE M.A. ORDER DATED 09/04/2018. HENCE THESE APPEALS HAVE COME UP BEFORE US. ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 2 3. REGARDING LEVYING OF PENALTY U/S 271(1)(C) OF TH E ACT, BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT DURING THE Y EAR UNDER CONSIDERATION, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF ELECTRON ICS ITEMS IN THE NAME AND STYLE OF M/S KRISHNA ELECTRONICS AND M/S J HARKHAND ELECTRIC & ELECTRONICS. IN RESPECT OF M/S KRISHNA ELECTRONICS, THE ASSESSEE HAS RECEIVED COMMISSION INCOME FROM M/S SAMSUNG INDIA L TD. FOR SUPPLY OF CDS ITEMS AND IN M/S JHARKHAND ELECTRIC & ELECTRONI CS, THE ASSESSEE CARRIES OUT TRADING OF ELECTRONIC ITEMS FOR THE LOC AL MARKET. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILE D TRADING AND PROFIT AND LOSS ACCOUNT OF M/S JHARKHAND ELECTRIC & ELECTR ONICS SHOWING NET PROFIT OF RS. 3,75,344/- ON THE TOTAL SALES OF RS. 91,36,106/- SHOWING THE NP RATE @ 4.11%. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE ASSESSED WAS ASKED TO PRODUCE BILLS VOUCHERS AND BAN K ACCOUNT OF HIS UNDISCLOSED BUSINESS CARRIED OUT IN THE NAME AND ST YLE OF M/S JHARKHAND ELECTRIC & ELECTRONICS, WHICH HAS NOT BEEN DISCLOSED IN THE RETURN OF INCOME. IT WAS ALSO FOUND THAT THE CASH DEPOSITS IN THE BANK ACCOUNT ARE RELATED TO THE SAID BUSINESS BEING CARRIED OUT BY T HE ASSESSEE. AS AGAINST THE TURNOVER OF RS. 91,36,106/-, THE ASSESSING OFFI CER WORKED OUT THE TURNOVER OF RS. 96,10,000/- AND ESTIMATED THE NP RA TE AT 5% AGAINST 4.11% DECLARED BY THE ASSESSEE AND MADE ADDITION OF RS. 4,80,500/- IN THE HANDS OF THE ASSESSEE. SEPARATELY, THE PENALTY PROCEEDING WAS INITIATED FOR CONCEALING THE PARTICULARS OF INCOME VIDE ISSUANCE OF NOTICE DATED 28/11/2013 U/S 271(1)(C) OF THE ACT. 4. THE ASSESSEE HAS NOT PREFERRED ANY APPEAL AGAINST THE SAID ADDITIONS MADE BY THE ASSESSING OFFICER HENCE THE Q UANTUM PROCEEDINGS HAVE SINCE ATTAINED FINALITY. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE SUBMISSION OF T HE ASSESSEE TOWARDS ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 3 NON LEVY OF PENALTY IS GENERAL IN NATURE AND NOT CO NVINCING FOR THE REASON THAT THE ASSESSEE HAS NOT SHOWN ACTUAL NP RA TE AS WELL AS ACTUAL TURNOVER OF HER BUSINESS IN THE RETURN OF INCOME FI LED FOR THE YEAR UNDER CONSIDERATION. ACCORDINGLY, PENALTY @ 100% OF TAX SO UGHT TO BE EVADED AMOUNTING TO RS. 73,022/- WAS LEVIED ON THE ASSESSEE . 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE SAID LEVY OF PE NALTY U/S 271(1)(C) OF THE ACT. 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US. DURING T HE COURSE OF HEARING, THE LD AR OF THE ASSESSEE HAS SUBMITTED TH AT THE RETURN OF INCOME WAS FILED IN WHICH THE ADDITION WAS MADE AMOUNT ING TO RS. 4,80,500/- AS PER NET PROFIT DISCUSSED IN THE ASSES SMENT ORDER BEING THE PROFIT FROM JHARKHAND ELECTRIC & ELECTRONICS WHICH WAS NOT SHOWN BY THE ASSESSEE BY OVERSIGHT IN THE RETURN OF INCOME. THAT DURING THE ASSESSMENT PROCEEDINGS, IT WAS STATED BY THE PETITIONER THAT THERE IS A PROFIT OF JHARKHAND ELECTRIC & ELEC TRONICS AT RS. 3,75,000/- ON THE TOTAL ESTIMATED SALE OF RS. 91,36,106/- GIVI NG A NET PROFIT @ 4.11% ON THE BASIS OF AMOUNT DEPOSITED WITH BANK ACCOUNT A MOUNTING TO RS. 1,13,10,000/- BUT BOOKS WERE NOT MAINTAINED. THAT THE LD. ITO ESTIMATED THE SALE AMOUNTING TO RS. 96,10,000/- AND ESTIMATED THE NET PROFIT @ 5%, HENCE THE INCOME FROM JHARKHAND ELECTRIC & ELECTRONICS SO DETERMINED AT RS. 4,80,500/-, THE SAME WAS ADDED IN THE TOTAL INCOME WHICH WAS ORIGINALLY NOT SHOWN BY THE ASS ESSEE BUT ON THE BASIS OF AMOUNT DEPOSITED IN BANK ACCOUNT. ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 4 IN THIS RESPECT, IT IS SUBMITTED THAT THE PETITIONE R FILED THE RETURN SHOWING THE INCOME OF M/S KRISHNA ELECTRONICS WHICH WA S ONLY AS COMMISSION WHICH WAS RECEIVED FROM M/S SAMSANG INDIA LTD. FOR SUPPLY OF CSD ITEMS AND INCOME EARNED FROM BUSINESS HAS BEEN DISCLOSED IN THE RETURN OF INCOME AT RS. 2,45,630/-. THE ADDITION WHIC H WAS MADE ON ACCOUNT OF JHARKHAND ELECTRIC & ELECTRONICS DUE TO CASH DEPOSITED OF RS. 1,13,10,000/- IN THE BANK ACCOUNT MAINTAINED WITH BA NK OF MAHARASHTRA DURING THE YEAR UNDER CONSIDERATION. THE INCOME WHICH WAS EARNED ON THE BASIS OF CASH DEPOSITED IN THE BANK ACCOUNT WAS RS. 3,75,344/- ON ESTIMATE BASIS BECAUSE NO REGULAR BOOKS OF ACCOUNTS WERE MAINTAINED BY THE ASSESSEE FOR JHARKHAND ELECTRIC & ELECTRONICS A ND THE PROFIT SO ESTIMATED. SINCE THAT THERE WAS A BONAFIDE MISTAKE B Y THE ASSESSEE NOT TO DISCLOSE THE INCOME FROM JHARKHAND ELECTRIC & ELECT RONICS. UNDER THE CIRCUMSTANCES, THERE IS NO PART OF INCOME CONCEALED OR UNDER STATED AND FURTHER THE 1,05,256/- WAS ADDED IN ESTIMATED INCOME ON THE BASIS OF SALES ESTIMATED ON THE BASIS OF BANK ACCOUNT @ 5%. THAT AS REGARD PENALTY U/S 271(1)(C), IT HAS BEEN HELD THAT IN THE MATTER OF DILIP N SHROFF VS JT. CIT (2007) 210 CTR (SC) 228 (2007) 291 ITR 519 SC BY THE HONORABLE SUPREME COURT THAT LEVY OF PENA LTY U/S 271(1) (C) OF THE IT ACT, 1961 IS NOT AUTOMATIC AND IS A MATTER OF DISCRETION AND THE AO HAS TO BE FAIR AND OBJECTIVE. IT HAS BEEN HELD IN A RECENT JUDGEMENT BY THE HONORABLE SUPREME COURT IN THE MATTER OF CIT VS RELIANCE PETROPRODUCTS PVT. LTD. (2010) 210 CTR (SC) 228 THA T WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE I N ITS RETURN OF INCOME ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE, TH ERE IS NO QUESTION OF INVITING THE PENALTY U/S 271(1)(C). A MERE MAKING O F FALSE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 5 PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. S UCH CLAIM MADE IN THE RETURN OF INCOME CANNOT AMOUNT TO FURNISHING IN ACCURATE PARTICULARS. IT HAS ALSO BEEN HELD BY THE HONORABLE ITAT DELHI BENCH IN THE MATTER OF NIKUNJ JAIN VS CIT THAT PENALTY U/S 271(1)(C) CANNOT BE IMPOSED BECAUSE THE ASSESSEE PAID THE DUE TAX TO BUY PEACE AND TO A VOID LITIGATION. IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN THE MATT ER OF M/S PRICE WATERHOUSE COOPERS (P) LTD. VS COMMISSIONER OF INCO ME TAX REPORTED IN (2012) 25 TAXMANN.COM 400 (SC) THAT PENALTY SHOULD NOT BE IMPOSED WHERE THE ERROR/MISTAKE IS BONAFIDE. IN A RECENTLY D ECIDED MATTER BY THE HONORABLE BOMBAY HIGH COURT IN THE MATTER OF CIT-2 VS M/S SHARAD FIBRES AND YARNS PROCESSORS LTD. REPORTED IN (2016) 40 ITD 91 (BOM.) THAT PENALTY SHOULD NOT BE IMPOSED WHERE THE ERROR/MISTAK E IS BONAFIDE. IT WAS HELD IN FOLLOWING CASES THAT AGREED ADDITION T O INCOME TO PURCHASE PEACE CANNOT AMOUNT TO AN ADMISSION CONSTITUTING EV IDENCE OF CONCEALMENT IN PENALTY PROCEEDINGS:- CIT VS. GIRISH DEVCHAND RAJANI (2013) 33 TAXMANN.COM 174 (GUJARAT) CIT VS MM GUJAMGADI (2007) 162 TAXMANN 211 (KAR) CIT VS PUNJAB TYRES (1986) 162 ITR 517 (MP) CIT VS. JASWANT RAI (1997) 142 CTR 49 (P&H) CIT VS MECON BUILDERS & ENGINEERS (2001) 248 ITR 159 (DEL.) CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) I TRV-HC-KAR-093) IN THE FOLLOWING CASES IT WAS ALSO HELD THAT PENALTY U/S 271(1)(C) COULD NOT BE LEVIED WHERE ADDITION HAS BEEN MADE ON ESTIMATE B ASIS:- SURAT FASHIONS LTD. VS ACIT (2011) ITRV-ITAT-AHD-134) NARAYANSINGH J DEORA VS ACIT (2011) ITRV-1TAT-MUM-28 ON THE BASIS OF THE ABOVE SUBMISSIONS, IT IS REQUES TED THAT THE ASSESSEE HAS DISCLOSED ALL THE MATERIAL FACTS IN HER RETURN OF INCOME AND NO FACTS ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 6 HAVE BEEN CONCEALED AND NO ADDITIONAL EVIDENCE HAVE BEEN PUT ON RECORD TO PROVE THAT THE ASSESSEE HAS CONCEALED HER INCOME, IT IS THEREFORE, REQUESTED TO KIND DELETE THE PENALTY U/S 271(L)(C) OF THE IT ACT, 1961 AMOUNTING TO RS. 73,022/-. 7. PER CONTRA, THE LD DR HAS SUBMITTED THAT IT IS A CL EAR CASE OF CONCEALMENT OF INCOME AS DURING THE COURSE OF ASSES SMENT PROCEEDINGS, ON POINTED OUT BY THE AO, THE ASSESSEE HAS COME FOR WARD AND DISCLOSED THE NATURE OF CASH DEPOSIT IN HER BANK ACCOUNT WHIC H REPRESENTS THE BUSINESS RECEIPTS ARISING OUT OF BUSINESS TRANSACTI ONS PERTAINING TO M/S JHARKHAND ELECTRIC & ELECTRONICS. IT WAS SUBMITTED THAT HAD THE CASE OF THE ASSESSEE NOT PICKED UP FOR SCRUTINY, THE SAID I NCOME WOULD HAVE ESCAPED TAXATION. FURTHER, IT WAS SUBMITTED THAT IT IS NOT A CASE OF MERE ESTIMATE OF TURNOVER AND GP RATE BY THE ASSESSING O FFICER AND THUS THE DECISIONS RELIED UPON BY THE LD AR ARE DISTINGUISHA BLE. FURTHER, SHE HAS RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE CASE OF TH E ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT TO EXAMINE THE SOU RCE OF CASH DEPOSIT OF RS 1.13 CRORES IN THE BANK ACCOUNT MAINTAINED BY TH E ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT THE CASH DEPOSITS REPRESENTS THE BUSINESS RECEIPTS ARIS ING OUT OF BUSINESS TRANSACTIONS PERTAINING TO M/S JHARKHAND ELECTRIC & ELECTRONICS AND DUE TO SOME INADVERTENT MISTAKE, THE SAME WAS NOT REPORTED IN THE RETURN OF INCOME ORIGINALLY FILED. THEREAFTER, THE ASSESSEE FI LED TRADING AND PROFIT AND LOSS ACCOUNT OF M/S JHARKHAND ELECTRIC & ELECTR ONICS SHOWING NET PROFIT OF RS. 3,75,344/- ON THE TOTAL SALES OF RS. 91,36,106/- SHOWING THE NP RATE @ 4.11%. THE AO HOWEVER ESTIMATED THE SALE A MOUNTING TO RS. ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 7 96,10,000/- AND ESTIMATED THE NET PROFIT @ 5% AND MA DE AN ADDITION OF RS 4,80,500. IT IS THEREFORE A CLEAR CASE WHERE THE ASSESSEE HAS FAILED TO REPORT THE BUSINESS RECEIPTS IN RESPECT OF HER R EGULAR BUSINESS ACTIVITIES WHILE FILING HER RETURN OF INCOME AND SUBSEQUENTLY, WHEN THE MATTER WAS SELECTED FOR SCRUTINY, SHE HAS COME FORWARD AND SUB MITTED THE DETAILS OF ITS TRADING AND PROFIT/LOSS ACCOUNT. THE EXPLANATI ON OF THE ASSESSEE IN NOT REPORTING THE SAID BUSINESS RECEIPTS IN HER ORIGINA L RETURN OF INCOME BY MERELY STATING THAT THE SAME WAS INADVERTENTLY NOT R EPORTED DOESNT INSPIRE ANY CONFIDENCE IN US. HENCE, THE LEVY OF P ENALTY ON SUCH UNREPORTED BUSINESS RECEIPTS UNDER SECTION 271(1)(C ) IS HEREBY CONFIRMED. 9. REGARDING LEVY OF PENALTY U/S 271A OF THE ACT FO R NON-MAINTENANCE OF BOOKS OF ACCOUNTS, DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE TOTAL RECEIPT/T URNOVER OF THE ASSESSEE BUSINESS FROM BOTH M/S KRISHNA ELECTRONICS AND M/S JHARKHAND ELECTRIC & ELECTRONICS, AMOUNTS TO RS.1,02,68,170/- AS THE ASS ESSEE WAS HAVING TURNOVER EXCEEDING RS. 60 LACS DURING THE YEAR UNDE R CONSIDERATION, ACCORDINGLY, THE PROVISIONS OF SECTION 44AA OF THE ACT ARE CLEARLY APPLICABLE AND THE ASSESSEE WAS LIABLE TO MAINTAIN H ER BOOKS OF ACCOUNT, WHICH SHE HAD FAILED TO DO SO. ACCORDINGLY, PENALTY AMOUNTING TO RS. 25,000/- WAS LEVIED U/S 271A OF THE ACT. THE LD CIT(A ) HAS CONFIRMED THE SAID LEVY OF PENALTY STATING THAT THE PROVISIONS OF SECTION 44AA ARE CLEARLY APPLICABLE AND THE ASSESSEE HAS FAILED TO MAINTAIN BOOKS OF ACCOUNT WITHOUT SHOWING ANY REASONABLE CAUSE. 10. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. WH ILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS REITERATED TH E ARGUMENTS AS MADE BEFORE THE LD. CIT(A) AND PRAYED TO DELETE THE PENAL TY. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDERS OF TH E AUTHORITIES BELOW. ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 8 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. UNDIS PUTEDLY, THE TOTAL RECEIPT/TURNOVER OF THE ASSESSEE BUSINESS FROM BOTH M/S KRISHNA ELECTRONICS AND M/S JHARKHAND ELECTRIC & ELECTRONIC S, AMOUNTS TO RS.1,02,68,170/- AND AS THE ASSESSEE WAS HAVING TURN OVER EXCEEDING RS. 60 LACS DURING THE YEAR UNDER CONSIDERATION, THE PR OVISIONS OF SECTION 44AA OF THE ACT ARE CLEARLY APPLICABLE AND THE ASSE SSEE WAS LIABLE TO MAINTAIN HER BOOKS OF ACCOUNT. NOTHING HAS BEEN BR OUGHT ON RECORD WHICH DEMONSTRATES ANY REASONABLE CAUSE ON PART OF T HE ASSESSEE IN NON- MAINTENANCE OF HER BOOKS OF ACCOUNTS. THEREFORE, WE CONFIRM THE ACTION OF THE AO IN LEVYING PENALTY UNDER SECTION 271A AND THE GROUND OF APPEAL IS HEREBY DISMISSED. 12. NOW, COMING TO LEVY OF PENALTY U/S 271B OF THE ACT FOR NOT GETTING THE BOOKS OF ACCOUNT AUDITED. THE ASSESSING OFFICER OBSERVED THAT SINCE THE TURNOVER OF THE ASSESSEES BUSINESS EXCEEDS RS. 60 LACS, THE PROVISIONS OF SECTION 44AB OF THE ACT ARE CLEARLY APPLICABLE A ND THE ASSESSEE HAS FAILED TO GET HER BOOKS OF ACCOUNT AUDITED. ACCORDI NGLY, PENALTY @ 0.5% OF TOTAL TURNOVER AMOUNTING TO RS. 51,341/- WAS LEVI ED ON THE ASSESSEE. 13. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD. CIT(A), WHO HAS SINCE CONFIRMED THE SAID LEVY OF PENALTY BY FOLLOWING THE DECISION OF COORDINATE BENCH IN THE CA SE OF S.J. AGARWAL & CO. VS ITO (2008) 114 ITD 27 (PUNE (SMC). 14. NOW THE ASSESSEE IS IN APPEAL BEFORE US. DURING THE COURSE OF HEARING, THE LD AR OF THE ASSESSEE HAS SUBMITTED TH AT THE ASSESSEE WAS UNDER THE BONAFIDE BELIEF THAT HE IS NOT REQUIRED T O OBTAIN AUDIT REPORT ONLY IN RESPECT OF THAT BUSINESS, THE TURNOVER OF WH ICH CROSSES THE LIMIT OF ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 9 THE ASSESSMENT YEAR IT WAS CLARIFIED BY ICAI THAT TA X AUDIT AS SUCH IS CONDUCTED IN RESPECT OF AN ASSESSEE AND NOT IN RESP ECT OF PARTICULAR BUSINESS. THE ASSESSEE HAVING ACTED IN BONAFIDE BE LIEF AND HAD NO DISHONEST INTENTION IN NOT OBTAINING AUDIT REPORT F OR ALL THE TWO BUSINESSES CARRIED ON BY HER, NO PENALTY UNDER SECTION 271B TO BE IMPOSED. RELIANCE WAS PLACED ON THE DECISION OF ACIT & ANR VS. DR. K. S ATISH SHETTY (2009) 310 ITR (KAR). 15. IT WAS FURTHER SUBMITTED THAT THE PENALTY U/S 27 IB CANNOT BE LEVIED IF THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNT S WHICH IS VERY MUCH CLEAR THAT IN CASE OF JHARKHAND ELECTRIC & ELECTRON ICS, BOOKS WERE NOT MAINTAINED AND THE INCOME SO ESTIMATED BY THE LD. A O IS ON THE BASIS OF AMOUNT DEPOSITED IN THE BANK ACCOUNT. IN SUPPORT, R ELIANCE WAS PLACED ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN CAS E OF CIT VS BISAULI TRACTORS (2008) 299 ITR 219 (ALL) AND DECISION OF HON BLE GAUHATI HIGH COURT IN CASE OF RAJMAL PARSURAM TODI (1996) 222 ITR 691 (GAU) WHEREAS IT WAS HELD THAT PENALTY U/S 27IB FOR FAILURE TO GET ACCOUNTS AUDITED U/S 44AB IS NOT ATTRACTED WHERE BOOKS OF ACCOUNTS WERE NO T MAINTAINED BY THE ASSESSEE. 16. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED POSITION TH AT THE ASSESSEE HAS NOT MAINTAINED THE BOOKS OF ACCOUNTS IN RESPECT OF HER BUSINESS RUN IN NAME AND STYLE OF M/S JHARKHAND ELECTRIC & ELECTRONICS, THE TURNOVER OF WHICH WAS DETERMINED AT RS 96.10 LACS. BASIS THE SAME, WE HAVE UPHELD THE LEVY OF PENALTY UNDER SECTION 271A FOR NON-MAINTENA NCE OF BOOKS OF ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 10 ACCOUNTS. ONCE THE PENALTY HAS BEEN LEVIED FOR NON- MAINTENANCE OF BOOKS OF ACCOUNTS, THERE CANNOT BE PENALTY AGAIN FO R NON-AUDIT OF BOOKS OF ACCOUNTS WHICH WERE NOT KEPT AT FIRST PLACE. IT I S CLEARLY A CASE OF IMPOSSIBILITY OF PERFORMANCE WHERE IT IS EXPECTED T HAT 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 HA VE BEEN MAINTAINED AT FIRST PLACE. OUR VIEW IS FORTIFIED BY THE DECISIO N OF THE HONBLE GAUHATI HIGH COURT IN CASE OF RAJMAL PARSURAM TODI (SUPRA) WH EREIN IT WAS HELD THAT WHEN A PERSON COMMITS AN OFFENCE BY NOT MAINTA INING THE BOOKS OF ACCOUNTS AS CONTEMPLATED UNDER SECTION 44AA, THE OF FENCE IS COMPLETE AND AFTER 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 PENA LTY UNDER SECTION 271B IS HEREBY DELETED. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO . 951/JP/2017 AND ITA NO. 952/JP/2017 ARE DISMISSED AND APPEAL IN ITA NO. 953/JP/2017 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/05/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH MAY, 2018 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. ROSHNI DEVI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-3(1), JAIPUR. ITA 951 TO 953/JP/2017_ ROSHNI DEVI VS ITO 11 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 951 TO 953/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR