- (1.) SINCE common question of law has been raised in these appeals, therefore, they are being decided by this common judgment.
(2.) THE assessee was saddled with the penalty under S. 271A of the IT Act, 1961 (hereinafter referred to as the 'Act') which provides that in case if any person fails to keep and maintain any such books of account and other documents as required by S. 44AA or the Rules made thereunder, in respect of any previous year or to retain such books of account and other documents for the period specified in the said rules, the AO or the CIT(A) may direct that such person shall pay, by way of penalty a sum of twenty five thousand rupees. In nutshell, the appellant's premises was surveyed by invoking S. 133A of the Act of 1961. The assessee's statement was recorded under purported power given under sub-cl. (iii) sub-s. (3) of S. 133A. Those statements were also relied upon for imposing penalty by the AO. The AO, by the impugned order, not only observed that the assessee in the said statement categorically admitted that no books of account of the company have been maintained but also observed that the assessee company has not filed the audited accounts along with the return of income for the assessment year in question. However, inspite of the notice to the appellant for imposition of penalty, the appellant did not produce books of account to substantiate his contention that he was maintaining the books of account as required under S. 133A.
(3.) ACCORDING to the learned counsel for the appellant, the CIT(A) has given cogent reasons for holding that the imposition of penalty against the appellant cannot be sustained. The learned counsel for the appellant drew our attention to the observation of the CIT(A) made in the order dt. 27th Sept., 1996, wherein, it has been observed that the provision of that S. 44AA(2)(i) is applicable in the case of appellant, which requires for keeping and maintaining books of account and other documents to enable the AO to compute his total income in accordance with the provisions of the Act. However, according to the CIT(A), unlike the persons covered by S. 44AA(i) r/w r. 67, no prescription has been given as to the nature of books of account, which were required to be maintained by an assessee.;