The ITO, Ward-2(5), Baroda V. M/s. Yogi Traders, Baroda

ITA 1136/AHD/2014

• Counselvise Citation: 113620514 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 21-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 1136/AHD/2014 / ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, WARD-2(5), 1 ST FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA VS. M/S. YOGI TRADERS, JOSHI ESTATE, SOKHADA ROAD, SODHADA PAN : AAAFY 6676 N / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI S.L. CHANDEL, SR. DR. ASSESSEE BY : NONE / DATE OF HEARING : 21/10/2015 / DATE OF PRONOUNCEMENT: 30/11/2015 / O R D E R PER KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, BA RODA DATED 11.12.2013 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE SOLE GROUND RAISED BY THE REVENUE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (APPEALS) ERRED IN DELETING THE PENALTY OF RS.4, 00,000/- U/S 271D OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE A SSESSEE HAS NEITHER EXPLAINED NOR PROVED THE BONAFIDE REASON FOR ACCEPT ING THE AMOUNT IN CASH IN VIOLATION OF SEC. 269SS OF THE ACT. 3. BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD ACCEPTED LOAN OF RS.3,00,000/- ON 03.01.2009 AND RS .1,00,000/- ON ITA NO. 1136/AHD/2014 ITO VS. M/S. YOGI TRADERS AY 2009-10 2 19.01.2009 IN CASH IN CONTRAVENTION TO SECTION 269S S OF THE INCOME-TAX ACT. THEREFORE, THE ASSESSING OFFICER REFERRED THE MATTER FOR LEVY OF PENALTY U/S 271D OF THE ACT TO THE JOINT COMMISSION ER OF INCOME-TAX, RANGE-2, BARODA WHO LEVIED THE PENALTY OF RS.4,00,0 00/- U/S. 271D OF THE ACT VIDE ORDER DATED 18.09.2012. THE ASSESSEE, BEING AGGRIEVED BY THIS PENALTY ORDER, PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ALLOWED THE APPEAL AND DIRECTED THE ASSESSING OFFICER TO DELETE THE PENALT Y. 4. AT THE TIME OF HEARING BEFORE US, NO ONE APPEAR ED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE; THEREFORE, THE APPEAL WAS TAKEN UP FOR HEARING IN THE ABSENCE OF ASSESSEE. 5. LD. SENIOR DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE LD. CI T(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY. 6. WE HAVE HEARD LD. SENIOR DEPARTMENTAL REPRESENTA TIVE AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. BEFORE LD . CIT(A), THE CONTENTION OF THE ASSESSEE WAS THAT THE AMOUNT HAS BEEN TRANSFERRED BY THE PARTNER OF THE FIRM TO MEET THE URGENT NEEDS OF THE BUSINESS. IT WAS CONTENDED THAT THE PROVISIONS OF SECTION 271D WOULD NOT APPLY AS THERE IS NO VIOLATION OF SECTIONS 269SS AND 269T OF THE ACT. WE FIND THAT THE LD. CIT(A), IN PARAGRAPH 3.3. OF HIS ORDER , HAS DECIDED THE ISSUE AS UNDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED A UTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFIC ER. THE APPELLANT ITA NO. 1136/AHD/2014 ITO VS. M/S. YOGI TRADERS AY 2009-10 3 HAD CLAIMED THAT IN VIEW OF THE FACT THAT THE PARTN ERS AND THE FIRM ARE NOT INDEPENDENT OF EACH OTHER AND THE FIRM IS NOT A JURISTIC PERSON, THESE TRANSACTIONS CANNOT BE CONSIDERED AS INTRA PERSON B UT WERE ONLY FOR THE PURPOSE OF CARRYING ON ASSESSEES OWN BUSINESS. TH E FACT THAT UNDER THE INCOME-TAX ACT, THE FIRM AND THE PARTNERS OF THE FI RM ARE RECOGNIZED AS INDEPENDENT UNITS, THE SAME CANNOT BE TREATED FOR A LL PURPOSES TO BE SEPARATE AND INDEPENDENT. THE ASSESSEE HAD CONTEND ED THAT IN THAT VIEW OF THE MATTER, THEY HAD NOT VIOLATED THE REQUI REMENT OF SECTIONS 269SS AND 269T WHILE CONDUCTING THESE TRANSACTIONS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THIS EXPLANATION A ND REJECTED THE PLEA OF THE ASSESSEE AND IMPOSED PENALTIES U/S 271D. HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. LOK HPAT FILM EXCHANGE (CINEMA) [2008] 304 ITR 172 (RAJ.) HAS HELD T HAT NO PENALTY CAN BE IMPOSED ON ASSESSEE-FIRM IN RESPECT OF TRANS ACTIONS INTER SE BETWEEN ASSESSEE AND ITS PARTNERS EVEN IF THERE IS VIOLATION OF SECTIONS 269SS AND 269TT. SIMILAR VIEW HAS BEEN TAKEN BY TH E JURISDICTIONAL ITAT IN THE CASE OF BHIKHABHAI DHANJIBHAI PATEL VS. ACIT, 127 TTJ 479 (AHD.). IN THE PRESENT CASE ALSO, IT COULD NOT BE DOUBTED THAT THE ASSESSEE HAD ACTED BONA FIDE AND HIS PLEA WAS BONA FIDE AND REASONABLE GROUND EXISTED ON WHICH IT HAD NOT ADHERED TO THE R EQUIREMENT OF CONDUCTING THE TRANSACTION THROUGH BANK ONLY. THUS , NO PENALTY COULD BE IMPOSED ON THE ASSESSEE U/S 271D/271E. THE SAME IS DIRECTED TO BE DELETED AND APPELLANTS GROUND IS ALLOWED. 7. FROM THE ABOVE IT IS EVIDENT THAT LD. CIT(A) HAS FOLLOWED THE JUDEGMENT OF THE HONBLE RAJASTAN HIGH COURT RENDER ED IN THE CASE OF CIT VS. LOKHPAT FILM EXCHANGE (CINEMA) [ 2008] 304 ITR 172 (RAJ.) AND THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBU NAL RENDERED IN THE CASE OF BHIKHABHAI DHANJIBHAI PATEL VS. ACIT, 127 T TJ 479 (AHD.). LD. SENIOR DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT AS HOW THESE DECISIONS RELIED UPON BY THE LD. CIT(A) ARE NOT APP LICABLE ON THE FACTS OF THE PRESENT CASE. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE ITA NO. 1136/AHD/2014 ITO VS. M/S. YOGI TRADERS AY 2009-10 4 WITH THE ORDER OF THE LD. CIT(A) AND THE SAME IS HE REBY UPHELD. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS RE JECTED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30 TH NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- (G.D. AGRAWAL) VICE-PRESIDENT (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 30/11/2015 BIJU T., PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. '# $ / CONCERNED CIT 4. $ ( ) / THE CIT(A) 5. '() # , # , ' / D R, ITAT, AHMEDABAD 6. ). / / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD