By Court.-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 Section 271-A of the Income Tax 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 Section 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 Assessing Officer or the Commissioner (Appeals) may direct that such person shall pay, by way of penalty a sum of twenty five thousand rupees.

3. In nutshell, the appellant's premises was surveyed by invoking Section 133A of the Act of 1961. The assessee's statement was recorded under purported power given under sub-clause (iii) sub-section (3) of Section 133A. Those statements were also relied upon for imposing penalty by the Assessing Officer. The Assessing Officer, 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 alongwith the return of income for the assessment year in question. However, in spite 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 Section 133A.

4. According to the learned counsel for the appellant, the Commissioner of Income Tax (Appeals) 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 C.I.T. (Appeals) made in the order dated 27th September, 1996, wherein, it has been observed that the provision of that Section 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 Assessing Officer to compute his total income in accordance with the provisions of the Act. However, according to the C.I.T. (Appeals), unlike the persons covered by Section 44AA(i) read with Rule 67, no prescription has been given as to the nature of books of account, which were required to be maintained by an assessee.

5. It appears that such plea was raised before the CIT (Appeals) and thereafter the CIT (Appeals) observed that certificate of auditor was produced wherein it has been stated that the appellant was maintaining the books of account and that has not been assailed by the Assessing Officer. In view of the above reasons as well as in view of reason that the statement recorded under clause (iii) of subsection (3) of Section 133A, different views than the statement recorded under Section 132(4) of the Act, 1961 have been taken.

6. Learned counsel for the appellant in support of his contention that the statement recorded of the assessee could not have been based and could not have been relied upon, in view of the Division Bench judgment of Delhi High Court. delivered in the case of Commissioner of Income Tax vs. Dhingra Metal Works, reported in (2010)236 CTR (Del.) 621 and judgment of the Madras High Court and Kerala High Court, delivered in the cases of Commissioner of Income Tax vs. S. Khader Khan Son, reported in(2008)214 STR (Mad.) 589 and Paul Mathews & Sons VS. Commissioner of Income Tax reported in (2003)181 CTR (Ker.) 207 respectively and also relied upon the judgment of Hon'ble Supreme Court, delivered in the case of Pullangode Rubber Produce Co. Ltd. VS. State of Kerala and Another reported in (1973)91 ITR 18(SC).

6A. The learned counsel for the Revenue drew our attention to the reasons given by the Tribunal for setting aside the order passed by CIT (Appeals) and submitted that the order of the CI