ITO, Ward - 40(2), Kolkata, Kolkata V. Nasir Ahmed Khan, Kolkata

ITA 1510/KOL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62135 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 04-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 29-07-2010
• Court: TRIBUNAL
• Department Lawyers: MANISH TIWARI
• Assessee Lawyers: A K PRAMANICK
• Section: 143(3)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . . !' ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM ] # # # # / I.T.A NO. 1510/KOL/2010 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR: 2004-05 INCOME-TAX OFFICER, WD-40(2), KOLKATA VS. NASIR AH MED KHAN (PAN: AFVPK1083P) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 22.06.2012 DATE OF PRONOUNCEMENT: 22.06.2012 FOR THE APPELLANT: SHRI MANISH TIWARI FOR THE RESPONDENT: SHRI A. K. PRAMANICK !- / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 22ND JUNE, 2012, THE BENCH PASSED THE FOLLOWING ORDER: 22ND JUNE, 2012 REVENUES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCE D IN OPEN COURT. DETAILED ORDER WILL FOLLOW. IN ACCORDANCE WITH THE ABOVE, THE REASONED ORDER IS NOW SET OUT AS FOLLOWS: PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XII, KOLKATA IN APPEAL NO. 243/XII/ADDL.CIT,R-10/07-08 DATED 20.04.2010. ASSE SSMENT WAS FRAMED BY DCIT, CIRCLE-40, KOLKATA, U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (H EREINAFTER REFERRED TO AS THE ACT) FOR AY 2004-05 VIDE HIS ORDER DATED 27.12.2006. PENALTY I N DISPUTE WAS LEVIED BY ADDL. CIT, RANGE- 40, KOLKATA U/S. 271D OF THE ACT VIDE HIS ORDER DAT ED 25.06.2007. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE PENALTY LEVIED BY AO U/S. 271D OF THE ACT. FOR THI S, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. THE LD. CIT(A) HAD ERRED BOTH IN FACT AND LAW BY HOLDING THAT THE PENALTY U/S. 271D OF THE I. T. ACT, 1961 AMOUNTING TO RS.16,40,000/- IS NOT LEVIABLE SINCE TRANSACTIONS WERE IN THE NATURE OF TRADE ADVANCES ALTHOUGH THE SAME WERE RECEIVED IN CASH FROM THE SO- =CALLED SUPPLIERS IN CONTRAVENTION OF THE NORMAL TR ADE PRACTICES. 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 01.11.2004 AND ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 27.12.2006. DURING THE 2 ITA 1510/K/2010 NASIR AHMED KHAN A.Y. 2004-05 COURSE OF ASSESSMENT PROCEEDINGS, AO FOUND THAT ASS ESSEE TOOK CASH LOAN OF RS.15 LACS FROM LIBERAL SPINNERS LTD. AND RS.1,40,000/- FROM MR. A NISH AHMED KHAN. AS THE LOAN WAS TAKEN IN CASH OF BOTH THE ABOVE AMOUNTS, THE AO DURING TH E COURSE OF ASSESSMENT PROCEEDINGS INITIATED PENALTY PROCEEDINGS U/S. 271D OF THE ACT FOR VIOLATION OF PROVISIONS OF SECTION 269SS OF THE ACT. DURING THE COURSE OF PENALTY PROCEEDIN GS U/S. 271D OF THE ACT BEFORE ADDL. CIT, RANGE-40, KOLKATA, THE ASSESSEE STATED THAT HE ACCE PTED CASH ADVANCE OF RS.15 LACS FROM LIBERAL SPINNERS LTD. FOR SUPPLY OF SHRIMPS AND ALS O ACCEPTED CASH ADVANCE OF RS.1,40,000/- FROM MR. ANISH AHMED KHAN FOR SUPPLY OF SHRIMPS. A CCORDING TO ASSESSEE, THE ADVANCE WAS AGAINST SUPPLY OF RAW MATERIAL AND HENCE, PROVISION S OF SECTION 269SS OF THE ACT WERE NOT APPLICABLE. THE AO ON INVESTIGATION OF FACTS FOUND AND NOTED THAT THE AMOUNTS RECEIVED FROM LIBERAL SPINNERS LTD. AND MR. ANISH AHMED KHAN WERE IN THE NATURE OF LOAN AND, THEREFORE, ADDL. CIT LEVIED PENALTY U/S. 271D OF THE ACT ON 25 .06.2007 FOR VIOLATION OF PROVISIONS OF SECTION 269SS OF THE ACT IN ACCEPTING THE CASH LOAN . AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO DELETED THE PENALTY BY OBSERVING AS UNDER: L HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND JU DICIAL DECISIONS QUOTED BY THE APPETLANT WITH REFERENCE TO THE FACTS OF THE CASE A ND OBSERVATIONS MADE BY THE A.O IN THE PENALTY ORDER. THE BASIC QUESTION THAT HAS TO BE DE CIDED WHETHER THE SUMS RECEVED BY THE APPELLANT FROM M/S. LIBERAL SPINNERS LTD AND MR. AN ISH AHMED KHON ARE IN THE NATURE OF LOAN OR TRADE ADVANCE. THE A.O IS OF THE VIEW THAT THE SUMS RECEIVED IN CASH ARE IN THE NATURE OF LOANS AND HENCE VIOLATED THE PROVISIO NS OF SECTION 269SS AND THUS LIABLE TOR PENALTY UNDER SECTION 271 D OF THE I. T. ACT. ON TH E OTHER HAND, THE APPELLANT CONTENDED THAT THESE SUMS ARE NOTHING BUT THE TRADE ADVANCES RECEIVED DURING THE COURSE OF BUSINESS AND HENCE NO VIOLATION OF SECTION 269SS AND HENCE N OT LIABLE TO PENATTY U/S. 271D. THE APPELTANT ALSO RETIED ON CASE LAWS IN SUPPORT OF HI S CONTENTIONS. FROM THE FACTS AND MATERIAL BROUGHT ON RECORD, L FI ND THAT THE APPELLANT FURNISHED CONFIRMATIONS FROM BOTH THE PARTIES WHO HAVE ADVANC ED THE AMOUNTS. M/S. LIBERAL SPINNERS LTD. HAS CONFIRMED THAT THE SUMS WERE ADV ANCED AGAINST FUTURE SUPPLY OF GOODS. LT ALSO FURNISHED A CERTIFIED COPY REFLECTING SUNDR Y DEBTORS LIST AS ON 31.3.2004 WHERE IN THE APPELLANT IS SHOWN AS A DEBTOR. THE A.O MISSED OUT THIS FACT. AS REGARDS MR. ANISH AHMED KHAN, THE APPELLANT IN HIS BOOKS HAS SHOWN TH ESE SUMS UNDER ONE ACCOUNT ONLY AND NO INTEREST PROVIDED ON SUCH SUMS. BASED ON THE CO NFIRMATION ACCOUNT, THE A.O, HOWEVER, CONCLUDED THAT SINCE IT WAS ONE ACCOUNT, T HE SUMS SHOWN UNDER THIS ACCOUNT ALONG WITH OTHER LOANS HAVE TO BE TREATED AS LOANS AND NOT AS TRADE ADVANCES. ON THE OTHER HAND, THE APPELLANT SUBMITTED THAT THE A.O ER RED IN CONCLUDING THAT THE SUMS ARE IN THE NATURE OF LOAN AS MR. ANISH AHMED KHAN MAINTAIN ED A COMMON ACCOUNT BOTH FOR LOAN AND NON-LOAN AMOUNTS. FURTHER THE APPELLANT CLARFI ED THAT ATTHOUGH MR. ANISH AHMED KHAN INCORPORATED THE SAID AMOUNT IN ONE ACCOUNT TH E APPELLANT ON THE OTHER HAND, MAINTAINED TWO SEPARATE ACCOUNTS, ONE FOR TRADE ADV ANCE AND ANOTHER FOR LOAN ACCOUNT. THUS THE INTENTION OF THE APPELLANT WAS ONLY TO SHO W THE AMOUNT AS TRADE ADVANCE AND NOT A LOAN AMOUNT. QUOTING APEX COURT DECISIONS IN KEDA RNATH JUTE MFG. CO. LTD AND SUTLEZ COTTON MILLS CP. LTD (SUPRA), THE APPELLANT FURTHER CONTENDED THAT ENTRY IN THE ACCOUNT BOOKS S NEITHER DETERMINATIVE NOR CONCLUSIVE AND A UTHORTES SHOULD SEE THE FACTS RELEVANT FOR THE TRANSACTIONS AND DECIDE THE ISSUE. THE APPE LLANT FURTHER STATED THAT HE HAD TRADE TRANSACTIONS WITH MR. ANISH AHMED KHAN IN THE NEXT YEAR. THE APPELLANT ALSO RELIED ON HYDERABAD TRIBUNAI DECISION IN THE CASE OF DILLUCIN E ENTERPRISE P. LTD, WHERE IN HONBLE TRIBUNAL HELD THAT THE MAIN PURPOSE FOR INTRODUCTIO N OF SECTION 269SS IS TO CHECK INFLOW 3 ITA 1510/K/2010 NASIR AHMED KHAN A.Y. 2004-05 OF BLACK MONEY AND BONAFIDE TRANSACTIONS BETWEEN CL OSELY RELATED PERSONS ARE NOT HIT BY SECTION 269SS. APPLYING THE SAME RATIO OF THE TRIBU NAL, THE APPELLANT CONTENDED SAYING THAT EVEN SUCH AMOUNT OF ADVANCE IS TREATED IN THE NATURE OF LOAN SINCE THE TRANSACTION EFFECTED BETWEEN THE APPELLANT AND MR. ANISH AHMED KHAN WHO HAPPEN TO BE HIS SON, THE SAME CAN NOT BE TREATED AS VIOLATION OF THE PROVISI ONS OF SECTION 269SS IN VIEW OF THE TRIBUNALS DECISION. QUOTING THE HIGH COURT DECISION S IN THE CASE OF KHARAITI LAL & CO (SUPRA) AND KAILASH CHANDRA DEEPAK KUMAR [2009, 317 ITR 351 (AHM)] THE APPELLANT SUBMITTED THAT SINCE THE SUMS BEING TRADE ADVANCES FOR FUTURE SUPPLY OF GOODS, PROVISIONS OF SECTION 269SS ARE NOT APPLICABLE. ON DUE CONSIDERATION OF THE FACTS, SUBMISSIONS AND CASE LAWS RELIED ON BY THE APPELLANT, I AM IN AGREEMENT WIFH THE SUBRNISSIONS OF THE APPELL ANT. CONSIDERING FHE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE SUMS ADVANCED ARE IN THE NATURE OF TRADE ADVANCES AND HENCE PROVISIONS OF SECTION 269S5 ARE NOT APPLICABLE. AS SUCH THE LEVY OF PENALTY U/S. 271D IS NOT JUSTIFIAB LE. THE APPELLANTS GROUND IS ALLOWED. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THERE ARE TWO ASPECTS TO THIS APPEAL. THE FIRST ASPECT IS REGARDING LEVY OF PENALTY ON LOAN FROM ANISH AHMED KHAN OF RS.1,40,000/-. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED BEFORE US THAT ANISH AHMED KHAN IS THE SON OF THE ASSESSEE AND THIS FACT IS VERY MUCH NARRATED IN THE PENALTY ORDER AT PAGE 3 BY THE AO AS UNDER: HENCE, I AM NOT INCLINED TO ACCEPT THE CONTENTION OF THE ASSESSEE. NO BUSINESS TRANSACTION WAS REFLECTED WITH THE SON OF THE ASSES SEE IN THE AY 2005-06. FROM THE CONFIRMATION OF ACCOUNT FILED IT IS CLEAR THAT RS.1 ,40,000/- RECEIVED IN AGGREGATE BY CASH BY THE ASSESSEE IS CONTINUATION OF LOAN AND IT CLEA RLY VIOLATES PROVISION OF SECTION 269SS OF THE I. T. ACT. FURTHER, THIS FACT IS ALSO NOTED BY THE AO IN ASSES SMENT ORDER BY WAY OF REPRODUCTION OF ASSESSEES SUBMISSIONS AS UNDER: I HAVE RECEIVED LOAN FROM MY SON ANISH AHMED KHAN (PAN:AFAPK1049O) IN EARLIER YEAR IN ACCOUNT PAYEE CHEQUE, OPENING BALANCE AS ON 01.04.03 IS RS.9,32,200/- AND I HAVE REPAID RS.10,000/- ON 25.07.2003 BY ACCOUNT PA YEE CHEQUE. IT MEANS THAT ANISH AHMED KHAN IS SON OF THE ASSESS EE AND ONCE THE TRANSACTION IS BETWEEN FATHER AND SON, NO PENALTY CAN BE LEVIED BECAUSE IT IS BETWEEN RELATIVES AND BETWEEN RELATIVES THERE CANNOT BE THE TRANSACTION OF LOAN OR DEPOSIT, WHICH VIOLATES THE PROVISIONS OF SECTION 269SS OF THE ACT. FOR THIS, HE RELIED ON THE DECIS IONS OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. IDHAYAM PUBLICATIONS LTD. (2006) 28 5 ITR 221 (MAD.), HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. NATVARLAL PURSHOTTAMDA S PAREKH (2008) 303 ITR 5 (GUJ.) AND ITAT, KOLKATA BENCHS DECISION IN THE CASE OF SHRI MADHU GHOSH VS. JCIT, ITA NO.271/K/2009, AY 2003-04 DATED 28.10.2011. WE FIN D THAT HONBLE MADRAS HIGH COURT IN THE CASE OF IDHAYAM PUBLICATIONS LTD. (SUPRA) AND ITAT KOLKATA BENCHES IS TAKING CONSISTENT VIEW THAT WHERE THE TRANSACTIONS BETWEEN THE RELATI VES WHETHER LOAN OR DEPOSIT THAT WILL NOT 4 ITA 1510/K/2010 NASIR AHMED KHAN A.Y. 2004-05 COME WITHIN THE MISCHIEF OF SECTION 269SS OF THE AC T AND ONCE THERE IS NO VIOLATION OF PROVISIONS OF SECTION 269SS OF THE ACT, NO PENALTY U/S. 271D OF THE ACT CAN BE LEVIED. HENCE, IN RESPECT TO LEVY OF PENALTY ON THE AMOUNT OF LOAN GIVEN BY ANISH AHMED KHAN TO HIS FATHER, THE ASSESSEE HEREIN, HAS RIGHTLY BEEN DELETED BY CI T(A) AND WE CONFIRM THE SAME. 5. ANOTHER ISSUE IN THIS APPEAL OF ASSESSEE IS REGA RDING LEVY OF PENALTY ON A CASH LOAN OF RS.15 LACS FROM LIBERAL SPINNERS LTD. ASSESSEES B ASIC CONTENTION WAS WHETHER THE AMOUNT RECEIVED BY ASSESSEE FROM LIBERAL SPINNERS LTD. IS IN THE NATURE OF LOANS OR TRADE ADVANCE. FOR THIS, WE HAVE TO SEE THE DOCUMENTS AND OTHER EV IDENCE FILED BEFORE US. FIRST OF ALL, THE ASSESSEES COUNSEL RELIED ON THE DETAILS OF SUNDRY DEBTORS OF LIBERAL SPINNERS LTD. AS ON 31 ST MARH, 2004 AND THE DETAILS READS AS UNDER: DETAILS OF SUNDRY DEBTORS AS ON 31 ST MARCH 2004 NAME AMOUNT EASTERN SYNTHETICS PVT. LTD. RS. 975,000.00 OVEN COMMERCIALS PVT. LTD. RS. 450,000.00 NASIR AHMED KHAN RS.1,500,000.00 RS.2,925,000.00 THE LD. COUNSEL FOR THE ASSESSEE STATED THAT NASIR AHMED KHAN IS A SUNDRY DEBTOR IN THE BOOKS OF LIBERAL SPINNERS LTD. HE ALSO REFERRED TO THE C ASH RECEIVED ON VARIOUS DATES AND CONFIRMATION OF ACCOUNT FOR THE YEAR ENDED 31 ST MARCH, 2004 RELEVANT TO AY 2004-05 OF LIBERAL SPINNERS LTD. THE RELEVANT ACCOUNT IS AS UNDER: DEBIT CREDIT DATE 01.04.2003 03.04.2003 16.04.2003 03.09.2003 17.10.2003 10.12.2003 05.01.2004 06.02.2004 PARTICULARS TO CASH TO CASH TO CASH TO CASH TO CASH TO CASH TO CASH TO CASH AMOUNT 5,00,000.00 2,00,000.00 1,50,000.00 75,000.00 1,15,000.00 60,000.00 2,45,000.00 1,55,000.00 15,00,000.00 DATE 31.03.2003 PARTICULARS BY BALANCE C/F AMOUNT 15,00,000 ----------------- 15,00,000 FIRST OF ALL, WE HAVE TO CONSIDER THE ARGUMENTS OF ASSESSEE THAT THIS IS ADVANCE FOR SHRIMPS AND NOT LOAN. IS IT REALLY SO? WE HAVE GONE THROUGH T HE ASSESSMENT ORDER OF THE ASSESSEE, WHEREIN THE FACT NOTED IS THAT THE AMOUNT RECEIVED FROM LIB ERAL SPINNERS LTD. FOR SUPPLY OF SHRIMPS TO THE ASSESSEE ARE THAT MOST OF THE DIRECTORS ARE FRO M RAJASTHAN AND VEGETARIAN AND THEY ARE NOT DOING ANY SHRIMPS BUSINESS. WE HAVE SEEN THE COPY O F ACCOUNT OF LIBERAL SPINNERS LTD. AND OBSERVED THAT THE AMOUNT OF RS. 5 LACS AT THE FIRST INSTANCE WAS RECEIVED ON 01.04.2003 IN CASH AND SECOND AMOUNT OF RS.2 LACS WAS RECEIVED ON 03.0 4.2003 IN CASH. THEREAFTER, THE THIRD 5 ITA 1510/K/2010 NASIR AHMED KHAN A.Y. 2004-05 AMOUNT OF RS.1.5 LACS WAS RECEIVED ON 16.04.2003 IN CASH. FURTHER, FOURTH AMOUNT OF RS.75,000/- WAS RECEIVED ON 03.09.2003 IN CASH. SI MILARLY, THE FIFTH AMOUNT OF RS.1,15,000/- WAS RECEIVED ON 17.10.2003 IN CASH. LIKEWISE, 7 TH , 8 TH AND 9 TH AMOUNT OF RS.60,000/-, 2,45,000/- AND RS.1,55,000/- WERE RECEIVED IN CASH ON 10.12.2003, 05.01.2004 AND 06.02.2004 RESPECTIVELY. THE AO NOTED THE FACT IN HIS PENALTY ORDER AS WELL AS ASSESSMENT ORDER THAT LIBERAL SPINNERS LTD. WAS NEVER IN THE BUSINESS OF SUPPLY OF SHRIMPS AND HE HAS PROVED THIS FACTUAL POSITION THAT THIS MONEY WAS REQUIRED BY TH E ASSESSEE ON ACCOUNT OF PURCHASE OF SHOP FOR RUNNING OF BUSINESS. THIS FACT IS NARRATED IN THE ASSESSMENT ORDER AT PAGE 2 PARA 3 LINE 8, WHICH IS AS UNDER: . THE FACTS ARE THAT THE ASSESSEE HAS STARTED A N EW PROPRIETORSHIP CONCERN UNDER THE NAME & STYLE M/S. FOOTPRINTS FOR WHICH HE HAS TO IN CUR HUGE EXPENSES ON ACOCUNT OF PURCHASE OF SHOP AND RUNNING OF THE BUSINESS. THE ASSESSEE REQUIRED MONEY AND HE HAS TAKEN CASH LOAN OF RS.15,00,000/- AND RS.1,40,000/- FROM M/S. LIBERAL SPINNERS LTD. AND MR. ANISH AHMED KHAN RESPECTIVELY IN DISGUISE O F ADVANCE. THEREFORE, THE ASSESSEE VIOLATED THE PROVISIONS OF SECTION 269SS A ND ACCORDINGLY PENALTY PROCEEDINGS U/S. 271D IS INITIATED SEPARATELY. EVEN THE ASSESSEE IS CARRYING ON WHOLESALE BUSINESS OF CLOTH. THIS AMOUNT OF RS. 15 LACS REMAINED UNADJUSTED TILL THE CLOSE OF FY AS ON 31.0 3.2004. FROM THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE AMOUNT O R THE TRANSACTION INVOLVED IS IN THE NATURE OF LOANS OR DEPOSIT AND IT IS NEVER TRADE ADVANCE BE CAUSE THE ASSESSEE NEVER ENTERED INTO ANY TRANSACTION OF SUPPLY OF SHRIMPS IN EARLIER YEARS O R IN THE FUTURE YEARS AS CONFESSED BY THE ASSESSEES COUNSEL BEFORE US. THIS BEING SOLITARY CASH LOANS IN THE SOLITARY YEAR AND PARTICULARLY WHEN THE ASSESSEE REQUIRED THE FUNDS FOR PURCHASE O F SHOP AND ACTUALLY HE INVESTED THIS AMOUNT IN PURCHASE OF SHOP, THE AMOUNT CANNOT BE CALLED AS ADVANCE FOR SUPPLY OF SHRIMPS. IN VIEW OF ABOVE, WE ARE OF THE VIEW THAT THE TAXAB ILITY OR OTHERWISE OF AN AMOUNT OR TRANSACTION WOULD DEPEND ON THE NATURE AND CHARACTE R OF THE RECEIPT AT THE INITIAL STAGE. IN THIS REGARD, IT IS PERTINENT TO NOTE THAT THE PROPOSITIO N THAT AN AMOUNT WHICH IS NOT INITIALLY RECEIVED AS A TRADING RECEIPT, CANNOT BECOME A TRADING RECEI PT BY INFLUX OF TIME AND HAS TO BE READ IN THE CONTEXT OF THE FACTS OF THE CASE. IF A RECEIPT IS A TRADING RECEIPT OR OTHERWISE, THE FACT IT IS NOT SO SHOWN IN THE ACCOUNT BOOKS OF AN ASSESSEE DOES NOT PREVENT THE ASSESSING AUTHORITY FROM TREATING THE CORRECT NATURE OF THE RECEIPT. THE EN TRIES IN THE ACCOUNT BOOKS CANNOT ALTER OR AFFECT THE NATURE, THE QUALITY AND CHARACTER OF THE TRANSA CTION. ITS TRUE NATURE AND QUALITY OF THE RECEIPT AND NOT THE HEAD UNDER WHICH IT IS ENTERED IN THE A CCOUNT BOOKS WHICH WOULD PROVE DECISIVE AND IF RECEIPT IS A LOAN OR DEPOSIT THE FACT THAT I T IS NOT SO SHOWN IN THE ACCOUNT BOOKS OF THE ASSESSEE WOULD NOT PREVENT THE ASSESSING AUTHORITY FOR TREATING THE SAME AS LOAN OR DEPOSIT. IN THE CASE BEFORE US ALSO THE CREDITOR WHO HAS ADVANC ED THIS LOAN TO ASSESSEE WAS NEVER IN THE 6 ITA 1510/K/2010 NASIR AHMED KHAN A.Y. 2004-05 BUSINESS OF SHRIMPS. HENCE, THIS CANNOT BE TREATED AS ADVANCE ON ACCOUNT OF SUPPLY OF SHRIMPS TO ASSESSEE. EVEN THE ULTIMATE USER OF THE MONEY I .E. THIS LOAN SO UTILISED BY THE ASSESSEE FOR PURCHASE OF SHOP AND RUNNING OF BUSINESS OF ASSESSE E AS NOTED BY AO IN ASSESSMENT ORDER AND PENALTY ORDER. IN ENTIRETY, WE HAVE NO HESITATION IN CONFIRMING THE PENALTY LEVIED BY AO AND WE REVER THE ORDER OF CIT(A) ON THIS ISSUE. APPEAL OF REVENUE IS PARTLY ALLOWED. 6. IN THE RESULT, APPEAL OF REVENUE IS PARTLY ALLOW ED. 7. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED : 22 ND JUNE, 2012 ./ $01 2 JD.(SR.P.S.) !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT ITO, WARD-40(2), KOLKATA. . 2 +,)* / RESPONDENT SH. NASIR AHMED KHAN, 4/1, J. K. GHO SH ROAD, KOLKATA-700 037. . 3 . -$ ( )/ THE CIT(A), KOLKATA 4. 5. -$ / CIT KOLKATA 4<= +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$>/ BY ORDER, 1 /ASSTT. REGISTRAR .