Appeal Details
Counselvise Citation
[2018] 121 COUNSELVISE.COM (IT) 6271 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 3 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
15-05-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
C
Assessment Year
2009-2010
Appeal Filed On
31-01-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BE NCH : KOLKATA [BEFORE HONBLE SHRI A.T.VARKEY, JM & SHRI M.BALA GANESH, AM ] I.T.A NO.162 /KOL/201 7 ASSESSMENT YEAR : 2009-1 0 I.T.O., WARD-24 (1), . -VS.- M/S DAYAMAYE E MARBLE & GRANITE KOLKATA KOLKATA [PAN : AAFFD 7699 K] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SAURABH KUMAR, ADDL. CIT, SR.DR FOR THE RESPONDENT : SHRI SOMNATH GHOSH, ADV OCATE DATE OF HEARING : 09.05.2018 DATE OF PRONOUNCEMENT : 15.05.2018 ORDER PER SHRI M.BALAGANESH, AM 1. THIS APPEAL OF THE REVENUE ARISES OUT OF THE ORD ER FOR THE ASST YEAR 2009-10 OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-6, KOL KATA [IN SHORT THE LD. ITA] IN APPEAL NO. 208/CIT(A)-6/KOL/15-16 DATED 02.11.2016 AGAINST THE ORDER PASSED BY THE J.C.I.T- RANGE-24, HOOGHLY [ IN SHORT THE LD AO] UN DER SECTION 271D OF THE ACT DATED 30.10.2015 FOR THE ASST YEAR 2009-10. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN DELETING THE PENALTY LEVIED U/S 271D OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF TRADING IN MARBLES AND GRANITES. DU RING THE YEAR UNDER APPEAL, THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.12,00,000/- O N VARIOUS DATES FROM ITS PARTNER SHRI AVIJIT SAHA TOWARDS CAPITAL CONTRIBUTION MADE BY THE SAID PARTNER IN THE ASSESSEE FIRM. THE LD. AO MADE AN OBSERVATION THAT THIS RECE IPT OF CAPITAL CONTRIBUTION FROM THE PARTNER BY THE ASSESSEE FIRM TANTAMOUNT TO LOAN OR DEPOSIT AND SINCE THE SAME WAS 2 ITA NO.162/KOL/2017 M/S DAYMAYEE MARBLE & GRANITE A.YR.2009-10 2 RECEIVED IN CASH, IT HAD VIOLATED THE PROVISIONS OF SECTION 269SS OF THE ACT AND ACCORDINGLY PENALTY U/S 271D OF THE ACT BEING 100% OF THE LOAN AMOUNT WOULD BE EXIGIBLE IN THE INSTANT CASE. THE LD. AO ACCORDINGL Y LEVIED PENALTY U/S 271D OF THE ACT. 4. THE LD. CIT(A) OBSERVED THAT INTRODUCTION OF CAP ITAL CONTRIBUTED BY A PARTNER IN THE PARTNERSHIP FIRM DOES NOT FALL UNDER THE AMBIT OF LOAN OR DEPOSIT WITHIN THE MEANING OF SECTION 269SS OF THE ACT. MOREOVER, HE OBSERVED THAT THE PARTNER HAS DULY REFLECTED THIS INTRODUCTION OF CAPITAL OF RS.12,00,000/- IN T HE PARTNERSHIP FIRM (I.E. ASSESSEE FIRM) IN HIS INDIVIDUAL BALANCE SHEET. THE LD. CIT(A) ALS O OBSERVED THAT THE ASSESSEE FIRM ALSO HAD TREATED THE RECEIPT OF RS.12,00,000/- FROM THE PARTNER AS CAPITAL INTRODUCED BY THE SAID PARTNER. ACCORDINGLY HE DELETED THE PENALTY LE VIED U/S 271D OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE CAPITAL CONTRIBUTED BY THE PARTNER IN THE PARTNERSHIP FIRM DOES NOT TANTAMOUNT TO LOAN OR DEPOSIT WITHIN THE MEANING OF SECTION 269SS OF THE ACT AND ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) CANCELLING THE PENALTY LEVI ED THEREON. HENCE, WE DO NOT DEEM IT FIT TO INTERFERE IN THE ORDER OF THE LD. CIT(A). AC CORDINGLY THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON _15.05.2018 SD/- SD/- [A.T.VARKEY] [ M.BALA GANESH] JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED : 15 .05.2018 [RG SPS] 3 ITA NO.162/KOL/2017 M/S DAYMAYEE MARBLE & GRANITE A.YR.2009-10 3 COPY OF THE ORDER FORWARDED TO: 1.M/S. DAYAMAYEE MARBLE & GRANITE, HOOGHLY STATION ROAD, PPO & DISTT. HOOGHLY- 712103. 2. I.T.O., WARD-24(1), HOOGHLY. 3. C.I.T.(A)-6, KOLKATA. 4. C.I.T.-8, KOLK ATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRET ARY HEAD OF OFFICE/D.D.O.. ITAT, KOLKATA BENCHES 4 ITA NO.162/KOL/2017 M/S DAYMAYEE MARBLE & GRANITE A.YR.2009-10 4
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