N S S Karayogam, Alappuzha V. Deputy Commissioner of Income Tax, Alappuzha

ITA 118/COCH/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2596 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-05-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 06-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA; M ANIL KUMAR
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Bonafide belief; Reasonable cause
• Section: 273B; 69; 63

Judgement Text

ITA NO. 118/ COCH/ 2009 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH , COCHIN BEFORE S/SHRI N.R.S. GANESAN, JM & B. R. S BASKARAN, AM ITA NO. 118 /COCH/ 2009 (ASST YEAR 2005 - 06 ) N S S KARAYOGAM P B NO. 1365 NEE RK UNNAM ALL APPUZHA 688 005 VS THE DY COMMR OF INCOME TAX CIRCLE 1 ALLAPPUZHA PAN NO. AACAS0029A ASSESSEE BY SHRI T M SREED HARAN REVENUE BY SMT S VIJAYAPRABHA, SR DR & SH M ANILKUMAR, CIT - DR DATE OF HEARING 21 ST MAY 2013 DATE OF PRONOUNCEMENT 31 ST JULY 2013 OREER PER N.R.S G A N ESAN, JM : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT - IV, KOCHI DATED 17 TH NOV 2008 AND PERTAINS TO AY 2005 - 06 CONFIRMING THE LEVY OF PENALTY U/S 271D OF THE IT ACT. 2 SHRI T M SREEDHARAN, THE LD SR COUNSEL FOR THE ASSESSEE APPEARED ON BEHALF OF THE ASSES SEE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF FINANCE. DURING THE COURSE OF ITS BUSINESS, THE ASSESSEE HAS RECEIVED DEPOSITS EXCEEDING RS. 20,000/ - IN CASH. ACCORDING TO THE LD SR COUNSEL, THE ACCEPTANCE OF DEPOSITS DURIN G THE COURSE OF BANKING BUSINESS SHALL NOT COME WITHIN THE RIGOR OF SECTION 269SS OF THE ITA NO. 118/ COCH/ 2009 2 ACT. THE LD SR COUNSEL FURTHER SUBMITTED THAT THE PRINCIPAL OFFICER OF THE ASSESSEE SOCIETY IS EDUCATED UPTO MATRICULATE AND IGNORANT OF THE PROVISIONS OF INCOME TAX ACT; THEREFORE, HE COULD NOT COMPLY WITH THE REQUIREMENT OF SECTION 269SS OF THE I T ACT. THE LD SR COUNSEL HAS FURTHER POINTED OUT THAT THE ASSESSEE IS ALSO ENGAGED IN THE CHARITABLE ACTIVITIES; THEREFORE, IT WAS UNDER THE BONAFIDE BELIEF THAT THE ASSESS EE SOCIETY WAS OUTSIDE THE PURVIEW OF THE PROVISIONS OF THE I T ACT. 2.1 REFERRING TO THE DEPOSITS, THE LD SR COUNSEL HAS POINTED THAT MOST OF THE DEPOSITS ARE OF PENSIONERS, HOUSEWIVES AND AGRICULTURISTS. REFERRING TO THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS KUNDRATHUA FINANCE & CHIT COMPANY (2006) 283 ITR 381, THE LD SR COUNSEL HAS POINTED OUT THAT ON SIMILAR CIRCUMSTANCES THE MADRAS HIGH COURT FOUND THAT THERE WAS A REASONABLE CAUSE IN NOT ACCEPTING THE DEPOSITS BY WAY OF ACCOU NT PAYEE CHEQUE OR DEMAND DRAFT. THE LD SR COUNSEL FURTHER SUBMITTED THAT THE TRANSACTION RECEIVED OR DEPOSITS AND LENDING OF MONEY WERE RECORDED IN THE BOOKS OF ACCOUNT IN THE REGULAR COURSE OF ITS BUSINESS; THEREFORE, MERE TECHNICAL VIOLATION WOULD N OT ATTRACT PENAL PROVISIONS U/S 271D. 2.2 REFERRING TO THE ORDER OF THE LD CIT(A), THE LD SR COUNSEL POINTED OUT THAT AT PARA 10 THE LD CIT(A) DIRECTED THE AO TO EXCLUDE THE DEPOSITS WHICH WAS BELOW RS. 20,000/ - . THE LD SR COUNSEL FURTHER POINTED OUT THAT THE BONAFIDENESS AND GENUINENESS OF THE TRANSACTION IS NOT IN DISPUTE. SINCE THE GENUINENESS OF THE ITA NO. 118/ COCH/ 2009 3 TRANSACTION AND BONAFIDENESS IS NOT IN DISPUTE, THERE SHOULD NOT BE ANY LEVY OF PENALTY U/S 271D OF THE ACT. 2. 3 ON THE CONTRARY, SHRI M ANIL KUMAR , THE LD DR SUBMITTED THAT THE ASSESSEE IS NOT DOING ANY BANKING BUSINESS. AT THE BEST, ONE MAY SAY THAT THEY ARE ENGAGED IN NON BANKING FINANCING ACTIVITY; THEREFORE, THE TRANSACTION CANNOT BE CONSTRUED TO BE A TRANSACTION BETWEEN THE IND IVIDUAL AND THE BANK. ADMITTEDLY, THE ASSESSEE HAS RECEIVED DEPOSITS EXCEEDING RS. 20,000/ - IN CASH IN VIOLATION OF SEC. 269SS OF THE ACT. THE CIT(A) HAS RIGHTLY DIRECTED THE AO TO EXCLUDE THE DEPOSITS WHICH WAS LESS THAN RS. 20,000/ - , IT WAS NOBODYS CASE THAT NO BANKING FACILITY WAS AVAILABLE IN THE AREA IN WHICH THE ASSESSEE IS OPERATING. REFERRING TO THE JUDGMENT OF THE MADRAS HIGH COURT, IN THE CASE OF KUNDRATHUR FINANCE & CHIT CO (SUPRA), THE LD DR SUBMITTED THAT THE MADRAS HIGH COURT SPECIFICALLY FOUND THAT THERE WAS NO BANKING FACILITY IN THAT LOCALITY. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND RELEVANT MATERIAL ON RECORD. THE ACCEPTANCE OF DEPOSITS BY CASH IS NOT IN DISPUTE. THE CIT(A) DIRECTED THE AO TO EXCLUDE THE DEPOSITS WHICH ARE LESS THAN RS. 20,000/ - FROM LEVY OF PENALTY. THE MAIN CONTENTION OF THE LD SR COUNSEL BEFORE THE TRIBUNAL IS THAT THE TRANSACTION WAS GEN UINE AND BONAFIDE; THEREFORE, THERE CANNOT BE ANY LEVY OF PENALTY. THIS TRIBUNAL IS NOT ABLE TO ACCEPT THE CONTENTION OF THE LD SR COUNSEL. IN FACT ON AN IDENTICAL SET OF FACTS, THIS TRIBUNAL HAD AN OCCASION TO CONSIDER SIMILAR FACTS IN THE CASE OF K V GEORGE IN ITA NO.22/COCH/2012 DATED 26.7.2013 WHEREIN WE HAVE HELD AS UNDER: ITA NO. 118/ COCH/ 2009 4 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND MATERIAL ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 269SS AND SEC. 271D OF THE IT ACT WHICH READ AS UNDER: 269SS . NO PERSON SHALL, AFTER THE 30TH DAY OF JUNE, 1984, TAKE OR ACCEPT FROM ANY OTHER PERSON (HEREAFTER IN THIS SECTION REFERRED TO AS THE DEPOSITOR), ANY LOAN OR DEPOSIT OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT IF, ( A ) THE AMOUNT OF SUCH LOAN OR DEPOSIT OR THE AGGREGATE AMOUNT OF SUCH LOAN AND DEPOSIT ; OR ( B ) ON THE DATE OF TAKING OR ACCEPTING SUCH LOAN OR DEPOSIT, ANY LOAN OR DEPOSIT TAKEN OR ACCEPTED EARLIER BY SUCH PERSON FROM THE DEPOSITO R IS REMAINING UNPAID (WHETHER REPAYMENT HAS FALLEN DUE OR NOT), THE AMOUNT OR THE AGGREGATE AMOUNT REMAINING UNPAID ; OR ( C ) THE AMOUNT OR THE AGGREGATE AMOUNT REFERRED TO IN CLAUSE ( A ) TOGETHER WITH THE AMOUNT OR THE AGGREGATE AMOUNT REFERRED TO IN CLAU SE ( B ), IS [TWENTY] THOUSAND RUPEES OR MORE : PROVIDED THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY LOAN OR DEPOSIT TAKEN OR ACCEPTED FROM, OR ANY LOAN OR DEPOSIT TAKEN OR ACCEPTED BY, ( A ) GOVERNMENT ; ( B ) ANY BANKING COMPANY, POST OFFICE SA VINGS BANK OR CO - OPERATIVE BANK ; ( C ) ANY CORPORATION ESTABLISHED BY A CENTRAL, STATE OR PROVINCIAL ACT ; ( D ) ANY GOVERNMENT COMPANY AS DEFINED IN SECTION 617 OF THE COMPANIES ACT, 1956 (1 OF 1956) ; ( E ) SUCH OTHER INSTITUTION, ASSOCIATION OR BODY OR C LASS OF INSTITUTIONS, ASSOCIATIONS OR BODIES WHICH THE CENTRAL GOVERNMENT MAY, FOR REASONS TO BE RECORDED IN WRITING, NOTIFY IN THIS BEHALF IN THE OFFICIAL GAZETTE : [ PROVIDED FURTHER THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY LOAN OR DEPOS IT WHERE THE PERSON FROM WHOM THE LOAN OR DEPOSIT IS TAKEN OR ACCEPTED AND THE PERSON BY WHOM THE LOAN OR DEPOSIT IS TAKEN OR ACCEPTED ARE BOTH HAVING AGRICULTURAL INCOME AND NEITHER OF THEM HAS ANY INCOME CHARGEABLE TO TAX UNDER THIS ACT.] EXPLANATION. FO R THE PURPOSES OF THIS SECTION, ITA NO. 118/ COCH/ 2009 5 [( I ) 'BANKING COMPANY' MEANS A COMPANY TO WHICH THE BANKING REGULATION ACT, 1949 (10 OF 1949), APPLIES AND INCLUDES ANY BANK OR BANKING INSTITUTION REFERRED TO IN SECTION 51 OF THAT ACT ;] ( II ) 'CO - OPERATIVE BANK' SHALL HA VE THE MEANING ASSIGNED TO IT IN PART V OF THE BANKING REGULATION ACT, 1949 (10 OF 1949) ; ( III ) 'LOAN OR DEPOSIT' MEANS LOAN OR DEPOSIT OF MONEY.] 271D. [(1)] IF A PERSON TAKES OR ACCEPTS ANY LOAN OR DEPOSIT IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SS , HE SHALL BE LIABLE TO PAY, BY WAY OF PENALT Y, A SUM EQUAL TO THE AMOUNT OF THE LOAN OR DEPOSIT SO TAKEN OR ACCEPTED.] [(2) ANY PENALTY IMPOSABLE UNDER SUB - SECTION (1) SHALL BE IMPOSED BY THE [JOINT] COMMISSIONER.] 3.1 AFTER THE 30 TH DAY OF JUNE 1984, NO PERSON SHALL ACCEPT OR TAKE LOAN OR DEPOSIT FROM ANY PERSON OTHERWISE THAN AN ACCOUN T PAYEE CHEQUE OR ACCOUNT PAY EE BANK DRAFT, IN CASE SUCH LOAN OR DEPOSIT EXCEEDS RS. 20,000/ - . IN FACT RS. 20,000/ - WAS SUBSTITUTED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987 INSTEAD OF RS. 10,000/ - . 3.2 FOR THE YEAR UNDER CONSIDERATI ON, THE AMENDED PROVISION FIXING THE LIMIT AT RS. 20,000/ - WOULD BE APPLICABLE. WE FIND THAT THE CONSTITUTIONAL VALIDITY OF SEC 269SS WAS CHALLENGED BEFORE THE MADRAS HIGH COURT IN THE CASE OF KRMV POONUSWAMY NADAR SONS (FIRM) & OTHERS VS UNION OF INDIA & OTHERS REPORTED IN 196 ITR 432. THE MADRAS HIGH COURT, AFTER CONSIDERING THE PROVISIONS OF SEC. 269SS A N D 276DD AS THEY EXIST ED AT THAT POINT OF TIME, FOUND THAT THE ASSESSEE WILL HAVE TO SHOW THAT THERE WAS A REASONABLE CAUSE FOR FAILURE TO RECEIVE OR ACCEPT LOAN OR DEPOSIT BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT. THE MADRAS HIGH COURT ALSO HELD THAT THE PROSECUTION IS TO BE AT THE INSTANCE OF THE HIGHEST FUNCTIONARY IN THE INCOME TAX DEPARTMENT. ACCORDINGLY, THE CONSTITUTIONAL VALIDI TY OF SECTION 269SS AND 276DD WAS UPHELD BY THE MADRAS HIGH COURT. 3.3 SUBSEQUENTLY, ONE OF THE ASSESSE E S CHALLENGED THE CRIMINAL PROCEED ING S INITIATED U/S 276DD OF THE ACT BY WAY OF PETITION U/S 482 OF CODE OF CRIMINAL PROCEDURE BEFORE THE MADRAS HIGH CO URT. IN K M A B SHANTI (ALI A S) VENNIRA ADAI NIRMALA VS ASST DIRECTOR OF INSPECTION , INVESTIGATION REPORTED IN 197 ITR 330. THE LD SINGLE JUDGE OF THE MADRAS HIGH COURT AFTER REFERRING TO THE JUDGMENT OF THE DIVISION BENCH JUDGMENT IN THE CASE OF K R M V PO ONUSWAMY NADAR SONS (FIRM) & OTHERS (SUPRA) FOUND THAT THE CONTENTION OF THE ASSESSEE THAT SECTION 269SS IS V IO LATIVE OF ARTICLE 14 OF CONSTIT UT ION OF INDIA WAS NOT TAKEN BEFORE THE DIVISION BENCH IN THE CASE OF K R M V POONSUWAMY NADRA SONS (FIRM) & OTHER S (SUPRA) AND IT WAS ALSO CLAIMED BEFORE THE LD SINGLE JUDGE THAT THE PETITIONER WAS NOT A PARTY IN THE PROCEEDINGS BEFORE THE DIVISION BENCH. THE LD SINGLE JUDGE FOUND THAT THE TRANSACTION OF LOAN OR DEPOSIT REQUIRES TWO LIM B S I.E. O NE LENDER AND ANOTHER BORROWER. IN SEC. 269SS, ONE IS LEFT OUT FOR OBVIOUS REASON; THEREFORE, THE LD SINGLE JUDGE FOUND THAT SEC 269SS IS V I OLATILE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA . ITA NO. 118/ COCH/ 2009 6 ACCORDINGLY, THE CRIMINAL PROCEEDINGS INITIATED AGAINST THE ASSESSEE BEFORE THE MA DRAS HIGH COURT WERE QUASHED BY THE LD SINGLE JUDGE. 3.4 THIS JUDGMENT OF THE LD SINGLE JUDGE OF THE MADRAS HIGH COURT WAS CHALLENGED BEFORE THE APEX COURT IN THE CASE OF ASST DIRECTOR OF INSPECTION (INVESTIGATION) VS KM A B SHANTHI REPORTED IN 255 ITR 258. THE APEX COURT, AFTER CONSIDERING THE OBJECTS BEHIND THE INTRODUCTION OF SECTION 269SS AND THE JUDGMENT OF THE CONSTITUTION BENCH OF APEX COURT IN THE CASE OF S K DUTTA, ITO VS LAWRENCE SINGH INGTY REPORTED IN 68 ITR 272 ( SC) FOUND THAT TAXATION LAW IS NOT OPEN TO ATTAC K ON THE GROUND THAT IT TAXES SOME PERSONS OR OBJECTS AND NOT OTHERS. THE APEX COURT FURTHER FOUND THAT A STATE DOES NOT HAVE TO TAX EVERYTHING IN ORDER TO TAX SOMETHING. IT WAS ALSO FOUND THAT THE STATE CAN BE ALLOWED TO PICK AND CH OOSE DISTRICTS, OBJECTS, PERSONS, METHODS AND EVEN RATES FOR TAXATION , IF IT DOES SO REASONABILITY. THE APEX COURT FURTHER FOUND THAT THE OBJECT SOUGHT TO BE ACHIEVED WAS TO ERADICATE THE EVIL PRACTICE OF MAKING OF FALSE ENTRIES IN THE ACCOUNT BOOKS AND LA TER GIVING EXPLANATION FOR THE SAME. THE APEX COURT ALSO FOUND THAT SEC 269SS COULD SOLVE THE PROBLEM TO A GREAT EXTENT. THE FACT THE APEX COURT OBSERVED AS FOLLOWS AT PAGE 263 OF ITR : THE CONTENTION OF THE APPELLANTS COUNSEL HAS NO FORCE. THE OBJECT OF INTRODUCING SECTION 269SS IS TO ENSURE THAT A TAXPAYER IS NOT ALLOWED TO GIVE FALSE EXPLANATION FOR HIS UNACCOUNTED MONEY, OR IF HE HAS GIVEN SOME FALSE ENTRIES IN HIS ACCOUNTS, HE SHALL NOT ESCAPE BY GIVING FALSE EXPLANATION FOR THE SAME. DURING SEARCH AN D SEIZURE, UNACCOUNTED MONEY IS UNEARTHED AND THE TAX PAYER WOULD USUALLY GIVE THE EXPLANATION THAT HE HAD BORROWED OR RECEIVED DEPOSITS FROM HIS RELATIVES OR FRIENDS AND IT IS EASY FOR THE SO CALLED LENDER ALSO TO MANIPULATE HIS RECORDS LATER TO SUIT THE PLEA OF THE TAXPAYER. THE MAIN OBJECT OF SECTION 269SS WAS TO CURB THIS MENACE. AS REGARDS THE TAX LEGISLATIONS, IT IS A POLICY MATER, AND IT IS FOR PARLIAMENT TO DECIDE IN WHICH MANNER THE LEGISLATION SHOULD BE MADE. OF COURSE, IT SHOULD STAND THE TEST OF CONSTITUTIONAL VALIDITY. A CONSTITUTION BENCH OF THIS COURT IN S K DUTTA, ITO VS LAWRENCE SINGH INGTY (1968) 68 ITR 272 HELD (PAGE 275): IT IS NOT IN DISPUTE THAT TAXATION LAW MUST ALSO PASS THE TEST OF ARTICLE 14. THAT HAS BEEN LAID DOWN BY THIS COURT IN MOOPLI AIR VS STATE OF KERALA (1961) 3 SCR 77. BUT AS OBSERVED BY THIS COURT IN EASH INDIA TABACCO CO VS STATE OF ANDHRA PRADESH (1963) ISCR 404 IN DECIDING WHETHER THE TAXATION LAW IS DISCRIMINATORY OR NOT IT IS NECESSARY TO BEAR IN MIND THAT THE STA TE HAS A WIDE DISCRETION IN SELECTING PERSON OR OBJECTS IT WILL TAX, AND THAT A STATUTE IS NOT OPEN TO ATTAC K ON THE GROUND THAT IT TAXES SOME PERSONS OR OBJECTS AND NOT OTHERS; IT IS ONLY WHEN WITHIN THE RANGE OF ITS SELECTION, THE LAW OPERATES UNEQUALL Y, AND THAT CANNOT BE JUSTIFIED ON THE BASIS OF ANY VALID CLASSIFICATION, THAT IT WOULD V I OLATIVE OF ARTICLE 14. IT IS WELL SETTLED THAT A STATE DOES NOT HAVE TO TAX EVERYTHING IN ORDER TO TAX SOMETHING. IT IS ALLOWED TO PICK AND CHOOSE DISTRICTS, OBJECTS, PERSONS, METHODS AND EVEN RATES FOR TAXATION IF IT DOES NOT REASONABLY. THE ABOVE DICTUM APPLIES IN FULL FORCE AS REGARDS THE PRESENT CASE. THE OBJECT SOUGHT TO BE ACHIEVED WAS TO ERADICATE THE EVIL PRACTICE OF MAKING OF FALSE ITA NO. 118/ COCH/ 2009 7 ENTRIES IN THE ACCOUNT BO OKS AND LATER GIVING EXPLANATION FOR THE SAME. TO A GREAT EXTENT, THE PROBLEM COULD BE SOLVED BY THE IMPUGNED PROVISION. 3.5 ULTIMATELY, THE APEX COURT FOUND THAT SEC 269SS DOES NOT IN ANY WAY VIOLATIVE OF ARTICLE 14 OF CONSTITUTION OF INDIA AND CONSEQ UENTLY, THE JUDGMENT OF THE LD SINGLE JUDGE OF THE MADRAS HIGH COURT IN KM A B SHANTIS CASE WAS SET ASIDE. 4 REFERRING TO THE PROVISIONS OF SECTION 273B, THE APEX COURT FOUND THAT NO PENALTY SHALL BE IMPOSABLE ON THE ASSESSEE FOR RECEIVING OR ACCEPTING L OAN OR DEPOSIT OTHERWISE THAN BY ACCOUNT PAYEE CHEQUE OR BY ACCOUNT PAYEE DEMAND DRAFT. THE APEX COURT FOUND THAT UNDUE HARDSHIP IS VERY MUCH MITIGATED BY INCLUSION OF SECTION 273B IN THE ACT. ULTIMATELY, THE APEX COURT OBSERVED THAT IF THERE WAS GENUINE AND BONAFIDE TRANSACTION AND THE TAXPAYER COULD NOT GET A LOAN OR DEPOSIT BY ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAT FOR SOME BONAFIDE REASON, THE AUTHORITY VESTED WITH THE POWER TO IMPOSE PENALTY HAS A DISCRETIONARY POWER NOT TO LEVY THE PENALT Y. IN FACT THE APEX COURT OBSERVED AS FOLLOWS I N PAGE 266 OF ITR AS UNDER: IT IS IMPORTANT TO NOTE THAT ANOTHER PROVISION, NAMELY SECTION 273B WAS ALSO INCORPORATED WHICH PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIONS OF SECTION 271D , NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISION IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR SUCH FAILURE AND IF THE ASSESSEE PROVES THAT THERE WAS REASONABLE CAUSE F OR FAILURE TO TAKE A LOAN OTHERWISE THAN BY ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT, THEN THE PENALTY MAY NOT BE LEVIED. THEREFORE, UNDUE HARDSHIP IS VERY MUCH MITIGATED BY THE INCLUSION OF SECTION 273B IN THE ACT. IF THERE WAS A GENUINE TRANS ACTION AND BONAFIDE TRANSACTION AND IF FOR ANY REASON THE TAXPAYER COULD NOT GET A LOAN OR DEPOSIT BY ACCOUNT PAYEE CHEQUE OR DEMAND DRAFT FOR SOME BONAFIDE REASONS, THE AUTHORITY VESTED WITH THE POWER TO IMPOSE PENALTY HAS G OT DISCRETIONARY POWER. IN T HAT VIEW OF THE MATER, WE DO NOT THINK THAT SECTION 269SS OR 271D OR THE EARLIER SECTION 276DD IS UNCONSTITUTIONAL ONE THE GROUND THAT IT WAS DRACONIAN OR EXPROPRIATORY IN NATURE. 4.1 IN VIEW OF THE JUDGMENT OF THE APEX COURT, IT IS OBVIOUS THAT CONSTITU TIONAL VALIDITY OF PROVISIONS OF SEC. 269SS WAS UPHELD BY HOLDING THAT IT DOES NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION OF INDIA. IT IS ALSO CLEAR THAT IN CASE OF GENUINE AND BONAFIDE TRANSACTION AND IF THE TAXPAYER COULD NOT GET A LOAN OR DEPOSIT BY ACC OUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT FOR SOME BONAFIDE REASONS, A DISCRETION WAS VESTED WITH T HE A O OR THE OFFICER WHO IS EMPOWERED TO LEVY OF PENALTY, NOT TO LEVY PENALTY. OF COURSE, THIS DISCRETION HAS TO BE EXERCISED JUDICIALLY AND NOT ARB ITRARILY. THUS, IT IS OBVIOUS FROM THE JUDGMENT OF THE APEX COURT THAT FOR INVOKING THE PROVISIONS OF SECTION 269SS AND 271D, THE TRANSACTION SHALL BE GENUINE AND BONAFIDE. HOWEVER , FOR INVOKING THE DISCRETION VESTED WITH THE AO UNDER SECTION 273B, THE ASS ESSEE SHOULD DEMONSTRATE THAT HE COULD NOT GET A LOAN OR DEPOSIT BY ACCOU NT PAYEE CHEQUE OR DEMAND DRAFT FOR SOME BONAFIDE REASONS. THUS, THERE SHOULD BE BO NAFIDE REASON OR REASONABLE CAUSE FOR ITA NO. 118/ COCH/ 2009 8 RECEIVING THE LOAN OR DEPOSIT BY CASH AND THE RECEIPTS OF LOA N OR DEPOSIT BY CASH ITSELF , CANNOT BE BONAFIDE REASON OR REASONABLE CAUSE. 5 LET US NOW EXAMINE THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE LAW LAID DOWN BY THE APEX COURT IN THE CASE OF KM A B SHANTHI (SUPRA). 5.1 THE FIRST CONTENTION OF THE LD SR COUNSEL IN THE CASE IS THAT THE TRANSACTION O F RECEIVING LOAN IN CASH WAS GENUINE AND THEREFORE, THERE WAS A REASONABLE CAUSE IN ACCEPTING THE MONEY EXCEEDING RS. 20,000/ - BY WAY OF CASH. 5.2 WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SEC. 273B OF THE ACT, WHICH READS AS UNDER: 273B. NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIONS OF 59 [CLAUSE ( B ) OF SUB - SECTION (1) OF] 60 [ SECTION 271 , SECTION 271A , 61 [ SECTION 271AA ,] SECTION 271B 61 [, SECTION 271BA ], 62 [ SECTION 271BB ,] SECTION 271C , 63 [ SECTION 271CA ,] SECTION 271D , SECTION 271E , 64 [ SECTION 271F , 65 [ SECTION 271FA ,] 66 [ SECTION 271FB ,] 67 [ SE CTION 271G ,]] 68 [ SECTION 271H ,] CLAUSE ( C ) OR CLAUSE ( D ) OF SUB - SECTION (1) OR SUB - SECTION (2) OF SECTION 272A , SUB - SECTION (1) OF SECTION 272AA ] OR 69 [ SECTION 272B OR] 70 [SUB - SECTION (1) 71 [OR SUB - SECTION (1A)] OF SECTION 272BB OR] 72 [SUB - SECTION (1) OF SECTION 272BBB OR] CLAUSE ( B ) OF SUB - SECTION (1) OR CLAUSE ( B ) OR CLAUSE ( C ) OF SUB - SECTION (2) OF SECTION 273 , NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISION S IF HE PROVES THAT THERE WAS REASONABLE CAUSE 73 FOR THE SAID FAILURE.] 5.3 THIS SECTION CLEARLY SHOW S THAT NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE AS THE CASE MAY BE FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS, IF HE PROVES THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE. THE WORD FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS ASSUMES SIGNIFICAN CE . 5.4 NOW, THE FAILURE IN THIS CASE IS NOT RECEIVING THE LOAN BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT. THE RECEIPT OR ACCEPTANCE OF LOAN IS NOT PROHIBITED IN THE INCOME TAX ACT. THE INCOME TAX PROVID ES FOR RECEIPT OR ACCEPTANCE OF LOAN WHICH EXCEEDS RS. 20,000/ - BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT. IT ALSO PROVIDES FOR PENALTY FOR FAILURE TO DO SO. THEREFORE, IF THE ASSESSEE EXPLAINS TO THE SATISFACTION OF THE CONCERNED AUTHO RITY THAT THERE WAS A REASONABLE CAUSE FOR FAILURE TO RECEIVE THE LOAN OR DEPOSIT BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT, THEN PENALTY SHALL NOT BE LEVIED. THEREFORE, THE REASONABLE CAUSE SHOULD BE FOR NOT RECEIVING THE LOAN OR DEPO SIT BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT . IN OTHER WORDS, THERE SHALL BE A REASONABLE CAUSE FOR RECEIVING THE LOAN OR DEPOSIT IN CASH. THE CONTENTION OF THE LD SR COUNSEL FOR THE ASSESSEE BEFORE THE TRIBUNAL IS THAT THE RECEIPT OF LOAN IN CASH ITSELF IS A REASONABLE CAUSE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT RECEIPT OF LOAN BY ITSELF CANNOT BE A REASONABLE CAUSE FOR FAILURE TO RECEIVE THE LOAN BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT. FOR EXERCISI NG JURISDICTION UNDER SECTION 269SS R.W.S 271D THERE SHOULD BE RECEIPT OF LOAN OR DEPOSIT BY THE ASSESSEE BY WAY OF CASH OR ITA NO. 118/ COCH/ 2009 9 OTHERWISE THAN BY WAY OF ACCOUNT PAYEE CHEQUE OR DEMAND DRAFT. IF FOR ANY REASON THE CLAIM OF THE ASSESSEE THAT HE HAS RECEIVED LO AN OR DEPOSIT WAS FOUND TO BE FALSE THEN THE AMOUNT CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AS LOAN OR DEPOSIT HAS TO BE TREATED AS HIS OWN INCOME AND PENALTY CAN BE LEVIED NOT U/S 271D BUT IT WILL BE U/S 271( 1 ) (C) FOR FURNISHING INACCURATE PARTI CULARS OF INCOME OR FOR CONCEALING PARTICULARS OF INCOME IN THE RETURN. THEREFORE, THE LD SR COUNSEL MAY NOT BE CORRECT IN SAYING THAT MERE RECEIPT OF LOAN BY CASH OR GENUINENESS OF RECEIPT OF LOAN BY CASH ITSELF WOULD CONSTITUTE A REASONABLE CAUSE U/S 273B OF THE ACT. THE REASONABLE CAUSE SHALL BE FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 269SS IN NOT RECEIVING THE LOAN BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT AND THE GENUINENESS OF RECEIPT OF LOAN BY CASH ITSELF PER - SE CANNOT CONSTITUTE REASONABLE CAUSE. IN VIEW OF PLAIN AND UNAMBIGUOUS LANGUAGE IN SECTION 273B OF THE I T ACT, THE REASONABLE CAUSE SHALL BE FOR FAILURE OF THE PROCEDURE OR METHOD PROVIDED IN SECTION 269SS. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CONTENTION OF THE LD SR COUNSEL THAT THE GENUINENESS OF THE RECEIPT OF LOAN BY CASH ITSELF CONSTITUTE REASONABLE CAUSE HAS NO MERIT AT ALL. 6 WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE KERALA HIGH COURT IN THE C ASE OF SHRI P K SHAMSUDIN (SUPRA). THE ASSESSEE , BEFORE THE KERALA HIGH COURT , USED SEVERAL PERSONS PROBABLY CLOSE RELATIVES AND FRIENDS TO TAKE LOAN FROM BANK FOR HIS BUSINESS PURPOSE. TH EREFORE, THE KERALA HIGH COURT FOUND THAT THE RELATIVE OR FRIEND WH O BORROW ED LOAN FOR ASSESSEES BUSINESS MAY NOT ABLE TO ISSUE CHEQUE TO ASSESSEE. ACCORDINGLY, AFTER AVAILING THE LOAN FROM BANK, THE CREDITORS WITHDRAW CASH FROM THEIR RESPECTIVE ACCOUNTS AND GAVE THE SAME TO THE ASSESSEE. THE KERALA HIGH COURT FOUND THA T THERE WAS A REASONABLE CAUSE FOR NOT RECEIVING THE MONEY BY WAY OF ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DEMAND DRAFT. THE KERALA HIGH COURT FURTHER FOUND THAT SINCE THE LOAN WAS TAKEN FROM THE BANK, THE SAME FUND CANNOT BE GIVEN TO THE ASSESSEE BY WAY OF CHEQUE; THEREFORE, THERE WAS A REASONABLE CAUSE IN WITHDRAWING THE MONEY FROM THE BANK AND THE SAME WAS GIVEN TO THE ASSESSEE BY CASH AND THIS CAUSE WAS FOUND REASONABLE FOR NOT LEVYING PENALTY U/S 271D OF THE ACT. 6.1 IN THE CASE BEFORE US, THE FACTS WERE ENTIRELY DIFFERENT. THE ASSESSEE CLAIMS THAT MONEY WAS RECEIVED FROM AGRICULTURIST. IT IS NOT THE CASE OF THE ASSESSEE THAT THE AGRICULTURIST FROM WHOM LOAN WAS BORROWED, WITHDRAWN FUNDS FROM BANK. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE J UDGMENT OF THE KERALA HIGH COURT IN THE CASE OF SHRI P K SHAMSUDIN (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. IT IS WELL SETTLED PRINCIPLES OF LAW THAT THE JUDGMENT OF THE COURT HAS TO BE UNDERSTOOD WITH THE FACTS BEFORE THE COURT. IT IS NOT PERMISSIBLE TO PICK AND CHOOSE A SENTENCE OR WORD FROM THE JUDGMENT, DE - HORS THE FACTS ON WHICH THE OBSERVATIONS MADE BY THE COURT. 7 WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SAINI MEDICAL S TORES (SUPRA). IN THE CASE BEFORE THE P&H HIGH COURT, IT WAS FOUND THAT THERE WAS A REASONABLE CAUSE FOR ACCEPTING THE LOAN BY WAY OF CASH. THEREFORE , THE HIGH COURT FOUND THAT DUE TO BONAFIDE BELIEF, THE ASSESSEE VIOLATED THE PROVISIONS OF SEC. 269SS. 7. 1 IN THE CASE BEFORE US, THE ASSESSEE IS NOT CLAIMING THAT CASH WAS RECEIVED DUE TO REASONABLE CAUSE. THE CLAIM OF THE ASSESSEE IS THAT RECEIPT OF MONEY BY WAY OF CASH ITA NO. 118/ COCH/ 2009 10 ITSELF IS A REASONABLE CAUSE. AS ALREADY DISCUSSED, MERE RECEIPT OF CASH , ITSELF CANNOT BE A REASONABLE CAUSE. THE ASSESSEE IS EXPECTED TO DEMONSTRATE THE REASONABLE CAUSE FOR NOT RECEIVING THE LOAN BY ACCOUNT PAYEE CHEQUE OR DEMAND DRAFT. THEREFORE, THIS JUDGMENT OF THE P&H HIGH COURT ALSO MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 8 WE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF LAKSHMI TRUST CO (SUPRA). IN THIS CASE BEFORE THE MADRAS HIGH COURT, THE ASSESSEE HAS TAKEN CASH LOAN AND REPAID THE SAME BY CASH. THE ASSESSEE CLAIMED BEFORE THE AUTHORITIES THAT THE BUSINESS OF THE ASSESSEE WAS DONE MAINLY IN ERODE AND CASH PUR CHA SES WERE MADE; THEREFORE, THE ASSESSEE NEEDS MONEY URGENTLY AND HENCE, CASH WAS ACCEPTED FROM SISTER CONCERN AND IT WAS REPAID IN CASH. THE MADRAS HIGH COURT BY PLACING RELIANCE IN I TS EARLIER DECISION IN THE CASE OF RATNA AGENCIES (2006) 284 ITR 609 FOUND THAT THERE WAS A REASONABLE CAUSE. IN THE CASE OF RATNA AGENCIES (SUPRA), THE MONEY RECEIVED WAS MEAGER AND IT WAS INCURRED FOR MEETING THE SUDDEN DEMAND OF OVERDRAFTS ACCOUNT. TH IS WAS FOUND TO BE A REASONABLE CAUSE BY THE MADRAS HIGH COURT. THEREFORE, THE JUDGMENT OF THE MADRAS HIGH COURT ALSO MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 9 NOW, COMING TO THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF KUNDRATHUR FINANCE & CHIT CO (SUPRA), IT WAS FOUND THAT THERE WAS NO BANKING FACILITY FOR THE DEPOSITORS. IN THE ABSENCE OF ANY BANK FACILITY, THE MADRAS HIGH COURT FOUND THAT RECEIPT OF MONEY BY CASH WAS NOT CONSIDERED TO BE IN VIOLATION OF PROVISIONS OF SEC. 269SS. IN FACT NON AVAILABILITY OF THE BANKING FACILITY WAS CONSIDERED AS A REASONABLE CAUSE FOR RECEIPT OF MONEY BY WAY OF CASH AND NOT THE RECEIPT OF CASH ITSELF. 10 WE HAVE ALSO CAREFULLY GONE THOUGH THE JUDGMENT OF THE RAJASTHAN HIGH COURT IN THE CASE OF MANOJ LALWA NI (SUPRA). IN THIS CASE, THE RAJASTHAN HIGH COURT FOUND THAT THE ASSESSEE TOOK LOAN BECAUSE HE WAS IN URGENT NEED OF MONEY FOR COMPLYING WITH THE TIME BOUND SUPPLIERS; THEREFORE, RECEIPT OF CASH WAS FOUND TO BE REASONABLE. THIS JUDGMENT OF THE RAJASTHAN H IGH COURT IS ALSO MAY NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. 11 IN VIEW OF THE ABOVE DISCUSSION, THERE SHOULD BE A REASONABLE CAUSE FOR RECEIPT OF MONEY BY WAY OF CASH. AS OBSERVED BY THE APEX COURT IN KM A B SHANTI (SUPRA) . (I) THERE SHALL B E A GENUINE AND BONAFIDE TRANSITION AND (II) FOR SOME BONAFIDE REASONS, THE ASSESSEE COULD NOT GET THE LOAN OR DEPOSIT BY ACCOUNT PAYEE CHEUQE OR DEMAND DRAFT. 11.1 THE ABOVE TWO CONDITIONS ARE SIMULTANEOUSLY TO BE FULFILLED FOR INVOKING THE DISCRETION U/S 273B AND IT IS NOT MUTUALLY EXCLUSIVE. IN OTHER WORDS, IN VIEW OF THE JUDGMENT OF THE APEX COURT IN KM A B SHANTI (SUPRA), MERE GENUINE AND BONAFIDENESS OF THE TRANSACTION ALONE WOULD NOT BE SUFFICIENT FOR INVOKING THE DISCRETION VESTED U/S 273B. APART FROM GENUINE AND BONAFIDENESS OF THE TRANSACTION, THE ASSESSEE SHALL DEMONSTRATE THE REASONABLE AND BONAFIDE CAUSE FOR NOT RECEIVING THE LOAN IN CASH. 11.2 I N THE CASE BEFORE US, THE ASSESSEE CLAIMS THAT TRANSACTION OF RECEIVING LOAN WAS GENUINE; HOWEVE R, IT IS NOT THE CASE OF THE ASSESSEE THAT APART FROM GENUINENESS OF THE LOAN TRANSACTION, THERE WAS ANY REASONABLE AND BONAFIDE CAUSE FOR RECEIVING THE LOAN IN CASH. THEREFORE, THE CONDITION LAID DOWN IN SECTION 273B AS EXPLAINED BY THE ITA NO. 118/ COCH/ 2009 11 APEX COURT IN KM A B SHANTI (SUPRA) WAS NOT FULFILLED. HENCE , THE DISCRETION VESTED WITH THE AO U/S 273B CANNOT BE INVOKED. THIS PRINCIPLE LAID DOWN BY THE APEX COURT WAS NOT CONSIDERED IN THE DECISION OF THE TRIBUNAL RELIED UPON BY THE ASSESSEE. THEREFORE, THE DECISION OF THE TRIBUNAL WHEREIN THE ASSESSEE PLACED RELIANCE MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 12 THE NEXT CONTENTION OF THE LD SR COUNSEL IS THAT THE FUNDS WERE RECEIVED PRIOR TO 2 0 06 AND IT WAS ENTERED IN THE BOOKS OF ACCOUNT DURING THE YEAR UNDER CONSIDERATION. THE TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS SUBMISSION OF THE LD SR COUNSEL HAS NO MERIT AT ALL. THE EXPLANATION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES WAS THAT HE NEEDS MONEY URGENTLY FOR SETTING UP OF AN INDUSTRY IN THE STAT E OF KERALA IN 2006; THEREFORE, HE RECEIVED MONEY FROM AGRICULTURIST IN THE STATE OF TAMILNADU. IF THIS EXPLANATION OF THE ASSESSEE TH AT HE NEEDS MONEY FOR SETTING U P OF INDUSTRY IN KERALA WAS ACCEPTED, THEN THERE IS NO QUESTION OF RECEIVING MONEY PRIOR T O 2006. THEREFORE, THE SUBMISSIONS/ARGUMENT OF THE LD SR COUNSEL IS CONTRARY TO THE EXPLANATION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY MERIT IN THE ARGUMENT OF THE LD SR COUNSEL. SETTING UP AN INDUSTRY/BUSINE SS IS A LONG PROCESS. THEREFORE, IT IS FOR THE ASSESSEE TO DEMONSTRATE WITH SUFFICIENT MATERIAL AND THE SPECIFIC URGENT SITUATION TO BE MET BY RECEIPT OF CASH. IN THE ABSENCE OF ANY PLEA THAT THE ASSESSEE HAS TO MEET ANY SPECIFIC URGENT NEEDS, THE TRIBUNAL COULD NOT SEE ANY REASONABLE CAUSE FOR RECEIVING THE LOAN BY WAY OF CASH. 13 THE NEXT CONTENTION OF THE LD SR COUNSEL IS THAT THE ASSESSEE WAS AN AGRICULTURIST AND HE HAS RECEIVED MONEY FROM AGRICULTURIST; THEREFORE, SECTION 269SS IS NOT APPLICABLE. 13.1 WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECT. 269SS MORE PARTICULARLY 2 ND PROVISO TO SEC. 269SS. IF DEPOSIT OF LOAN WAS TAKEN BY AN AGRICULTURIST FROM AN AGRICULTURIST AND NEITHER OF THEM OF HAVE ANY INCOME CHARGEABLE TO TAX, THEN PROVISIONS OF SEC. 269SS IS NOT APPLICABLE. 13.2 IN THE CASE BEFORE US, ADMITTEDLY, THE ASSESSEE HAS TAXABLE INCOME. THEREFORE, 2 ND PROVISO TO SEC. 269SS IS NOT APPLICABLE TO THE ASSESSEE. IN OTHER WORDS , THE ASSESSEE CANNOT TAKE ANY ADVANTAGE FROM 2 ND PROVISO TO SEC. 269SS. THE ASSESSEE HAS TAXABLE INCOME. 14 IN VIEW OF THE ABOVE DISCUSSION, THE TRIBUNAL UNABLE TO UPHOLD THE ORDER OF THE LD CIT(A) AND ACCORDINGLY, THE SAME IS SET ASIDE AND THAT OF THE AO IS RESTORED . 4 MOREOVER, IT IS NOT THE CASE OF THE ASSESSEE THAT THERE IS NO BANKING FACILITY IN THE LOCALITY. MOST O F THE DEPOSIT ORS ARE PENSION ER S. PENSIONS ARE DISBURSED THROUGH BANKING CHANNEL BY THE RESPECTIVE GOVERNMENT . IN THE AB SENCE OF ANY CONTENTION THAT THE ITA NO. 118/ COCH/ 2009 12 BANKING FACILITIES ARE NOT AVAILABLE IN THE LOCALITY, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE MADRAS HIGH C O URT JUDGMENT IN THE CASE OF KUNDRATHUR FINANCE & CHIT C O IS NOT APPLICABLE TO T H E FACTS OF THE CASE. IN FACT , IN THE STATE OF KERALA, EVERY NOOK AND CORNER IS CONNECTED BY BANKS. 4.1 IN VIEW OF THE ABOVE DECISION OF THIS TRIBUNAL , WE DO NOT FIND ANY INFIRMIT Y IN THE ORDER OF THE LD CIT(A) , ACCORDINGLY THE SAME IS CONFIRMED. 5 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY 2013. SD/ - SD/ - ( B.R. BASKARAN) ( N .R.S GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 31 ST JULY 2013 RAJ* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN