K K Praveen, Cochin V. Dy CIT, Ernakulam

ITA 169/COCH/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 7549 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 15-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 31-03-2009
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Assessee Lawyers: P DANIEL ADV
• Keywords: Unexplained cash credit; Income from undisclosed sources; Retrospective amendment; Reasonable cause; Onus to prove
• Section: 273B; 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A NOS. 167, 168 & 169/COCH/2009 ASSESSMENT YEAR : 2005-06 K.K.PRAVEEN, POWER WORLD, PULLEPADY, COCHIN-35 [PAN: AFEPK 3438B] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2(2), ERNAKULAM. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI P..DANIEL, ADV.-AR REVENUE BY SHRI T.J.VINCENT, DR O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF THREE APPEALS BY THE ASSESSEE A RISING OUT OF THE SEPARATE ORDERS BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOC HI (`CIT(A) FOR SHORT) OF EVEN DATE, I.E., 22.12.2008, CONFIRMING THE LEVY OF PEN ALTY U/SS. 271(1)(C), 271D & 271E OF THE INCOME-TAX ACT, 1961 ('THE ACT' HEREINAFTER) BY THE ADDL. COMMISSIONER OF INCOME- TAX, RANGE-2, KOCHI (THE ASSESSING OFFICER/AO FOR S HORT), VIDE HIS SEPARATE ORDERS DATED 25.6.2008 FOR THE ASSESSMENT YEAR (A.Y.) 2005-06. 2. AT THE VERY OUTSET, WE OBSERVE THAT A MARGIN AL DELAY OF 16 DAYS ATTENDS THE FILING OF THE APPEALS. THE SAME IS ACCOMPANIED BY A CONDONATI ON PETITION EXPLAINING THE SAME TO BE ON ACCOUNT OF INADVERTENCE IN THE FACE OF HEAVY LOSSES AND FINANCIAL DIFFICULTIES BEING FACED BY THE ASSESSEE, WHO WAS ALSO UNDER PRESSURE TO PAY UP THE DEMAND. WE ARE SATISFIED, ON HEARING THE PARTIES AND PERUSAL OF TH E MATERIALS ON RECORD, THAT THE NOMINAL DELAY IS NOT DELIBERATE AND CAUSED PER FORCE THE OB TAINING CIRCUMSTANCES. WE, THEREFORE, CONDONE THE SAME. ITA.NO. 167, 168 & 169/COCH./2009 2 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DEALER IN ELECTRICAL AND MECHANICAL ACCESSORIES, MANUFACTURERS OF ACOUSTIC ENCLOSURES, ELECTRICAL PANEL BOARDS, KITCHEN CABINETS, ETC. AND ALSO AN ENGINEERING AND TRANSPOR TING CONTRACTOR. HE FILED HIS RETURN FOR THE YEAR ON 31.6.2005 DECLARING AN INCOME OF ` 26,00,620/-. THE SAME WAS SUBJECT TO THE VERIFICATION PROCEDURE UNDER THE ACT AND INCOME ASS ESSED VIDE ORDER U/S. 143(3) OF THE ACT DATED 31.12.2007 BY EFFECTING AN ADDITION OF ` 13,31,000/- TO THE RETURNED INCOME IN RESPECT OF UNEXPLAINED CASH CREDITS. IN FACT, IT WA S OBSERVED DURING THE ASSESSMENT PROCEEDINGS, THAT HE WAS RECEIVING AS WELL AS REPAY ING OR EXTENDING LOANS IN CASH IN SUMS AGGREGATING TO LAKHS OF RUPEES IN VIOLATION OF SECT IONS 269SS AND 269T OF THE ACT. PENALTY PROCEEDINGS U/S. 271(1)( C), 271 D AND 271 E WERE, ACCORDINGLY, INITIATED, AND PENALITES LEVIED THEREUNDER, WHICH STOOD CONFIRMED IN FIRST APPEAL. WE SHALL TAKE UP EACH OF THE APPEALS, DECIDED SEPARATELY BY THE FIRST APP ELLATE AUTHORITY, IN SERIATIM. PENALTY U/S. 271 (1)(C) [IN I.T.A. NO. 167/COCH/200 9] 4.1 THE ENTIRE ADDITION WAS TOWARD UNEXPLAINED C ASH CREDITS IN THE NAME OF FOUR CREDITORS, AS UNDER:- MRS. DEEPA : ` 1,36,000/- MR. SHIVAPRASAD : ` 2,00,000/- SMT. P.P.LATHA : ` 6,73,000/- SHRI K.V.BABU : ` 3,22,000/ NO CONFIRMATION LETTERS WERE FILED IN RESPECT OF T HE FIRST THREE, SO THAT THERE WAS NO EVIDENCE OR MATERIAL TO EXHIBIT THE GENUINENESS OF THE TRANSACTIONS OR THE CAPACITY OF THE CREDITORS. IN RESPECT OF SHRI K.V.BABU, A TOTAL OF ` 6,38,500/- STOOD RECEIVED FROM HIM DURING THE PERIOD 1.4.2004 TO 8.9.2004. AGAINST TH IS, THERE WAS A REPAYMENT OF ` 3,16,500/- DURING THE SAID PERIOD. AS SUCH, THERE WAS A NET CASH RECEIPT OF `3,22,000/ - IN THE NAME OF THE SAID PERSON. AGAIN, IN THE ABSENCE OF ANY EVIDENCE WITH REGARD TO THE CAPACITY OF THE CREDITOR OR THE GENUINENESS OF THE CASH TRANSACTIONS, THE SAME STOOD CONSIDERED UNEXPLAINED. PENALTY PROCEEDINGS WERE I NITIATED BY ISSUE OF NOTICE U/S. 271(1)(C) READ WITH SECTION 274 OF THE ACT ON 31.12 .2007. IN THE ENSUING PROCEEDINGS, IT ITA.NO. 167, 168 & 169/COCH./2009 3 WAS EXPLAINED BY THE ASSESSEE THAT THERE HAD BEEN N O DELIBERATE DEFIANCE OF LAW OR DISHONEST INTENTION ON ITS PART. FUNDS WERE REQUIR ED TO MEET THE SHORTAGE OF WORKING FUNDS AND, THUS, THE ASSESSEE HAD TO PERFORCE TAKE LOANS FROM VARIOUS PERSONS. THE SAME WAS NOT FOUND ACCEPTABLE AS THE ASSESSEE HAD FAILED TO PROVE THE SAID CREDITS AS TO THEIR NATURE AND SOURCE. EXPLANATION 1 TO SECTION 271(1)(C) WAS CLEARLY ATTRACTED IN THE ABSENCE OF THE ASSESSEE FAILING TO FURNISH ANY EXPLANATION WITH REGARD TO THE ADDITION/S MADE TO ITS INCOME. THE AO, THEREFORE, LEVIED THE PENALTY AT T HE MINIMUM AMOUNT EXIGIBLE UNDER THE LAW AFTER OBTAINING THE PRIOR APPROVAL OF THE CONCE RNED ADDL. COMMISSIONER OF INCOME- TAX. 4.2 IN APPEAL, THE ASSESSEE REITERATED ITS CA SE OF THE FUNDS HAVING BEEN SECURED DUE TO THE EXIGENCIES OF THE BUSINESS AND TO MEET THE FINA NCIAL COMMITMENTS THEREOF. CERTAIN CASE LAW WERE RELIED UPON BY THE ASSESSEE. THE LD. CIT(A) EXAMINED THE MATTER, DETAILING HIS FINDINGS PER PARA 4 OF HIS ORDER. IT WAS FOUND BY HIM THAT:- A) NO CONFIRMATIONS HAD BEEN FILED; B) THE CREDITS WERE NOT PRODUCED; C) THE SOURCE OF THE FUNDS WITH THE ALLE GED CREDITORS WAS NOT EXPLAINED. UNDER THE CIRCUMSTANCES, IT WAS HELD THAT THE CREDI TS REMAINED COMPLETELY UNEXPLAINED, AND IT WAS A CLEAR CASE OF CONCEALMENT OF INCOME . NO MATERIAL HAD BEEN PRODUCED EVEN DURING THE PENALTY PROCEEDINGS TO CONTRADICT THE SA ID FACTS AND FINDINGS. EACH OF THE CASE LAW CITED AND RELIED UPON BY THE ASSESSEE BEFORE HI M WAS MET BY HIM WITH REFERENCE TO THE FACTS AS WELL AS LEGAL POSITION IN THE MATTER, PLACING RELIANCE ON THE DECISION IN THE CASE OF UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS & ORS ., 306 ITR 277(SC), TO IMPRESS THE NON-REQUIREMENT OF ESTABLISHMENT OF MENS REA FOR THE LEVY OF PENALTY FOR CONCEALMENT, A CIVIL LIABILITY, AND THE INSERTION O F SUB-SECTION (1B) TO SECTION 271 WITH RETROSPECTIVE EFFECT FROM 1.4.1989, TOWARD THE REQU IREMENT OF RECORDING SATISFACTION. THE PENALTY LEVIED HAVING BEEN CONFIRMED, THE ASSESSEE, BEING AGGRIEVED THEREBY, IS IN APPEAL. 5. BEFORE US, LIKE SUBMISSIONS STOOD RAISED ON BEHA LF OF THE ASSESSEE. WHILE THE AO HAD IN THE ASSESSMENT ORDER CLEARLY STATED OF THE I NITIATION OF PENALTY PROCEEDINGS WHILE ITA.NO. 167, 168 & 169/COCH./2009 4 DISCUSSING THE ADDITIONS IN RESPECT OF FIRST THREE CASH CREDITS, NO SUCH OBSERVATION FOLLOWED THE DISCUSSION IN RESPECT OF THE CREDITS I N THE NAME OF SHRI K.V.BABU. AS SUCH, THE LEVY OF PENALTY IN RESPECT OF THE CREDITS IN HI S NAME HAD NOT BEEN PRECEDED BY RECORDING OF SATISFACTION BY THE AO, WHICH IS A CON DITION PRECEDENT THEREFOR, AS EXPLAINED IN THE CASE OF D.M. MANASVI VS. CIT (1972) 86 ITR 557 (SC). THE LD. CIT(A) HAD FURTHER ERRED IN PLACING RELIANCE ON THE PROVISION OF SECTI ON 271(1B). RELIANCE WAS PLACED BY HIM IN THE MATTER ON THE DECISIONS IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD . (2010) 322 ITR 158 (SC) AND MADHUSHREE GUPTA & ORS. VS. UOI , 317 ITR 107(DEL.). THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW, STATING THAT NO INFIRMITY WHATSOEVER HAS BEEN POINTED OUT BY THE ASSESSEE THEREIN, SO THAT THE REVENUES STAND STANDS TO BE UPHELD. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. 6.1 WE FIRSTLY OBSERVE THAT THERE IS NO DISPUTE WITH REGARD TO THE FACTS OF THE CASE. THE ASSESSEE HAS, NEITHER IN THE QUANTUM PROCEEDINGS NO R IN THE PENALTY PROCEEDINGS, ADDUCED ANY EVIDENCE IN SUPPORT OF ITS CLAIM OF THE IMPUGNE D CREDITS AS REPRESENTING GENUINE CASH CREDIT TRANSACTIONS. AS OBSERVED IN THE PENALTY OR DER, EVEN THE EVIDENCE IN THE FORM OF BANK PASS BOOKS, INCOME-TAX RETURNS ETC., TO ESTABL ISH THE SAME WERE NOT ADDUCED. IN FACT, WE DO NOT THINK THAT IT IS REQUIRED TO TRAVEL THERE -TO WHERE EVEN THE CONFIRMATIONS HAVE NOT BEEN FILED WHICH, EVEN AS STATED BY THE LD. CIT(A), IS THE FIRST STEP TOWARD EXPLAINING A CREDIT IN THE BOOKS OF ACCOUNT. ALSO, IT MAY BE CLA RIFIED THAT THESE CREDITS DO NOT FALL UNDER THE CATEGORY OF THE CHEQUE DISCOUNTING SCHEME, WHIC H THE ASSESSEE HAS STATED TO HAVE ADOPTED IN HIS EXPLANATION TO THE VARIOUS OTHER CRE DITS RECORDED IN HIS BOOKS OF ACCOUNTS. IN FACT, IT IS ONLY ON THIS COUNT THAT THE PENALTY QUA THE CREDITS IN THE NAME OF SH K.V. BABU STAND LEVIED AT THE NET AMOUNT OF CASH RECEIVE D OR THE NET CREDIT. THE EXPLANATION WITH REGARD TO THE GENUINE BUSINESS NEEDS, WHICH NE CESSITATED ARRANGEMENT OF FUNDS IN CASH ON URGENT BASIS TO MEET THE EXIGENCIES OF THE BUSINESS, IS OFF THE MARK. THE QUESTION HERE IS NOT AS TO WHY THE FUNDS WERE REQUIRED BY HI M, OR EVEN IN RELATION TO THE MODE OF THEIR ACCEPTANCE, BUT AS TO THE GENUINENESS OF THE CREDIT TRANSACTIONS AS RECORDED, AND WHICH THE ASSESSEE HAS COMPLETELY FAILED TO PROVE. A `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` 19,900 WAS INCOME OF THE ASSESSEE IN FACT. ABOUT TH E CHARACTER OR NATURE OF THE SUM OF MONEY, THERE COULD BE NO FURTHER DISPUTE WHEN IT HAD ALREA DY BEEN ADDED AS INCOME BY THE APPLICATION OF THE STATUTORY PROVISION. CIT VS. JUGALKISHORE HARGOPAL DAS, 243 ITR 220 (KE R.) (AT PGS. 220, 222) IF THE ASSESSEE OFFERS AN EXPLANATION, THE REVENUE AUTHORITIES HAVE TO CONSIDER THE ACCEPTABILITY OF THE EXPLANATION AND PASS NECESSARY ORDERS. IF TH E EXPLANATION IS FOUND ACCEPTABLE, NOTWITHSTANDING ADDITION MADE BY TREATING THE AMOUN T AS INCOME FROM UNDISCLOSED SOURCES PENALTY MAY NOT BE LEVIED. BUT IF THE EXPLANATION IS VAGUE OR FANCIFUL THEN CERTAINLY IT IS OPEN FOR THE REVENUE TO IMPOSE PENALTY. ANAND LIQUORS VS. CIT: 232 ITR 35 (KER.) (AT PG.36 ) WHERE THERE IS AN EXPLANATION, AND NO MATERIAL TO SUBSTANTIATE OR SUPPORT IT, THE PROVISO TO THE EXPLANATION IS ATTRACTED. THE OFFICER HAS TO CONSIDER THE BONA FIDES OF THE ASSESSEES EXPLANATION, AND WHETHER ALL THE FACTS RELATING TO THE EXPLANATI ON AND MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME HAVE BEEN DISCLOSED BY THE ASSESSEE BY PLACI NG THEM ON RECORD BEFORE THE OFFICER. 6.4 UNDER THE CIRCUMSTANCES, AND THE LEGAL POSITION , WE FIND NO INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW, AND UPHOLD THE SAME. 7. IN THE RESULT, THE ASSESSEES APPEAL IN ITA 167/ COCH/2009 IS DISMISSED. ITA.NO. 167, 168 & 169/COCH./2009 7 8.1 AS AFORE-STATED, THE ASSESSEE WAS RECEIVIN G, AS WELL AS REPAYING OR EXTENDING LOANS IN CASH IN SUMS AGGREGATING TO LAKHS OF RUPEES IN V IOLATION OF SECTIONS 269SS AND 269T OF THE ACT. APART FROM THE CASH CREDITS FOR ` 13.31 LAKHS FOR WHICH NO CONFIRMATIONS STOOD FILED, AND ACCORDINGLY ASSESSED AS HIS INCOME U/S. 68 OF THE ACT, PENALTY PROCEEDINGS U/SS. 271D AND 271E, BEING PRIMA FACIE ATTRACTED FOR THE SAID VIOLATIONS, WERE INITIATED FOR THE BALANCE. WE MAY ENLIST SOME OF THE TRANSACTIONS AS APPEARING IN THE PENALTY ORDER READ WITH THE ASSESSMENT ORDER AS UNDER:- (AMOUNT IN `) SL. NO.NAME OF THE PERSON DEBIT (DR.) CREDIT (CR. ) BALANCE PENAL ACTION (LAKHS) 271D 271E 1. K.V.BABU 21,80,000/- NC ? - 21.80 2. K.V.KARUNAKARAN 5,80,000 7 9,384 5,00,616 DR. - 8.10 3. RADHIKA 7,42,450 1,25,500 5,26,950 DR. 2.00 7.4 0 4. K.G.K.MENON 1,20,000 1,2 0,000 NIL 1.20 - 5. JAYA 60,000 1,10,000 50,000 CR. 1.00 - 6. SIMON 50,000 1,25,000 ?. 1.25 - TOTAL 5.45 37.30 (NC) => NOT CLEAR; (?) => NOT APPARENT 8.2 THE ASSESSEES PRINCIPAL ARGUMENT IN RELATION T O THE IMPUGNED CONTRAVENTIONS WAS THAT THE IMPUGNED TRANSACTIONNS FORMED PART OF THE CHEQUE DISCOUNTING SCHEME. FURTHER, A REASONABLE CAUSE ATTENDED THE SAME IN-AS-MUCH AS HE WAS IN URGENT NEED OF CASH TO MEET HIS BUSINESS OBLIGATIONS, VIZ. PAYMENTS TO LABOUR, SUPPLIERS, ETC. THE ASSESSEES EXPLANATIONS WERE EXAMINED BY THE AO ON BOTH COUNTS , FINDING THEM BOTH UNACCEPTABLE AND UNSUBSTANTIATED. THE MATTER WAS AGAIN EXAMINED AT LENGTH BY THE LD. CIT(A), MEETING EACH OF THE OBJECTIONS RAISED BY THE ASSESS EE TO FIND THAT HE HAD NO CASE ON MERITS, I.E., BOTH AS REGARDS FACTS AND AS WELL AS THE LEGAL CONTENTIONS RAISED. 9. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE SHALL DEAL WITH BOTH THE APPEALS SEPARATELY. ITA.NO. 167, 168 & 169/COCH./2009 8 PENALTY U/S. 271D [IN I.T.A. NO. 168/COCH/2009] 10.1 BEFORE US, THE ASSESSEES PRINCIPAL CONTENTION WAS OF THE IMPUGNED TRANSACTIONS REPRESENTED CHEQUE DISCOUNTING TRANSACTIONS. IT WOU LD BE RELEVANT TO REPRODUCE THE FINDINGS BY THE AO IN THIS REGARD: (AMOUNT IN `) RADHIKA DATE RECEIPTS ( `) REASONS FOR NON-ACCEPTANCE OF EXPLANATION 13.4.2004 20,000 NO EXPLANAT IONS OFFERED; ALSO, NO CONTRA REPAYMENTS SEEN 16.4.2004 80,000 DURING THE YEAR; THESE DO NOT SEEM TO BE DISCOUNTED 18.5.2004 1,00,000 CHEQUES AND THEREFORE ARE LOANS RECEIVED IN CASH. K.G.K.MENON 07.05.2004 1,20,000 THE AMOUNT ALLEGED TO BE THE CORRESPONDING REPAYMENT IS SEEN TO BE FAR LATER IN TIME, VIZ. ON 12.11. 2004; IS NOT ACCEPTED. JAYA 16.07.200 50,000 NO EXPLA NATIONS OFFERED; ALSO, NO CONTRA REPAYMENTS 17.08.2004 50,000 SEEN DURING THE YEAR; THESE DO NOT SEEM TO BE DISCOUNTED CHEQUES AND THEREFORE ARE LOANS RECE IVED IN CASH. SIMON 17.04.2004 75,000 NO EXPLAN ATION OFFERED; ALSO, NO CONTRA REPAYMENTS SEEN DURING THE YEAR; THIS DOES NOT SEEM TO BE DISCOUNTED CHEQUE AND THEREFORE IS LOAN RECEIVE D IN CASH. 27.04.2004 20,000 THE AMOUN T ALLEGED TO BE THE CORRESPONDING 06.08.2004 30,000 REPAYMEN TS ( ` 1,00,000 ON 21.08.2004) IS SHOWN AS BEING SET OFF AGAINST A CONVOLUTED COMBINATION OF SEVERAL ENTRIES VASTLY SEPARATED IN TIME; TO A RGUE THAT THESE DISPARATE AMOUNTS REPRESENT ONE ARRANGE MENT IS FACILE AND AND CONSEQUENTLY NOT ACCEPTED. TOTAL ` 5,45,000 ITA.NO. 167, 168 & 169/COCH./2009 9 THE TOTAL AMOUNTS OF LOANS RECEIVED IN CASH VIOLATI NG THE PROVISIONS OF SECTION 269 SS OF THE INCOME TAX ACT IS THEREFORE RS.5,45,000. IT IS SEEN THAT THESE VIOLATIONS OF THE ASSESSEE ARE WITHOUT REASONABLE CAUSE. IT IS EMPHAS IZED THAT THESE ARE NEITHER PROCEEDS OF DISCOUNTED CHEQUES NOR AMOUNTS ASSESSED U/S.68. CON SEQUENTLY, THESE STAND CATEGORIZED AS LOANS RECEIVED IN CASH. 10.2 IT IS, THUS, APPARENT THAT THE ASSESSEE HAS NO T BEEN ABLE TO SHOW OF THE SAID TRANSACTIONS AS BEING THE PROCEEDS OF DISCOUNTED CH EQUES. IN FACT, THE ASSESSEE, AS AFORE- STATED, HAD BEEN IN THE NORMAL COURSE OF HIS BUSINE SS TAKING AS WELL AS REPAYING OR EXTENDING LOANS IN CASH, EXPLAINING THE SAME AS BEI NG A PART OF THE CHEQUE DISCOUNTING MECHANISM ADOPTED BY IT. TO THE EXTENT THE CASH CR EDIT TRANSACTIONS WERE FOUND TO BE SO, I.E., THE PROCEEDS OF CHEQUES DISCOUNTED, PENALTY U /S. 271 D HAS NOT BEEN LEVIED. IT IS ONLY WHERE THE ASSESSEE FAILED TO EXHIBIT THE SAME AS SO , THAT THE LOANS OR DEPOSITS, HAVING BEEN ADMITTEDLY TAKEN IN VIOLATION OF SECTION 269SS, BEE N SUBJECT TO PENALTY U/S. 271D. ALSO, THE IMPUGNED CASH RECEIPTS HAVE NOT BEEN DEEMED AS THE ASSESSEES INCOME U/S. 68 OF THE ACT, AND WHICH ASPECT OF THE MATTER STOOD ALSO CLAR IFIED BY THE BENCH FROM THE LD. AR DURING THE HEARING. VIOLATION OF SECTION 269SS BEI NG ADMITTED, THE LEVY OF PENALTY, COULD, CONSEQUENTLY, ONLY BE SAVED IN TERMS OF SECT ION 273B, BY EXHIBITING A REASONABLE CAUSE, THE ONUS TO PROVE WHICH IS CLEARLY ON THE AS SESSEE. TOWARD THIS, WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO FURNISH ANY REASONABL E CAUSE WHATSOEVER. THE EXPLANATION IN THIS REGARD BY IT, I.E., OF BEING REQUIRED TO ME ET GENUINE EXPENSES IN TIMES OF EMERGENCY, SO THAT THE SAME STOOD RAISED FROM FRIEN DS AND RELATIVES, IS, AS ALSO FOUND BY THE AUTHORITIES BELOW, ONLY AN ALIBI . THE SAME HAS NOT BEEN SUBSTANTIATED IN ANY MANNER , WITH REFERENCE TO DATES, FACTUAL CIRCUMSTANCES OBTA INING, ETC. AS OBSERVED BY THE REVENUE AUTHORITIES, ALL THE STATED EXPENSES ARE THE NORMAL EXPENDITURE REQUIRED TO BE MET BY THE ASSESSEE ON A DAY TO DAY BASIS. IN FACT, IT WAS SP ECIFICALLY REQUIRED BY THE AO TO SHOW AS TO WHY THE LOANS HAD TO BE NECESSARILY TAKEN IN CAS H; THE EXPENSES BEING ONLY REGULAR WORKING EXPENSES, AND TO WHICH THE ASSESSEE, AN EXP ERIENCED BUSINESSMAN, FAILED TO RESPOND. RATHER, SUCH TRANSACTIONS WERE FOUND TO H AVE BEEN ENTERED INTO AS A MATTER OF ROUTINE, THE VOLUME OF WHICH RAN IN LAKHS, WITH NO CORRECTIVE ACTION OR CHANGE OVER TIME. REFERENCE IN THIS CONTEXT BE ALSO MADE TO OUR OBSER VATIONS AND FINDINGS AT PARA 6.1 & 6.3 OF THIS ORDER, BEING BOTH RELEVANT AND APPLICABLE. ITA.NO. 167, 168 & 169/COCH./2009 10 10.3 THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION BY THE HONBLE APEX COURT IN THE CASE OF ASSISTANT DIRECTOR OF INVESTIGATION VS. DY.CIT (2002) 250 ITR 255 (SC), WHEREIN, APPROVING THE CONSTITUTIONALITY OF THE RELEVANT SEC TIONS, THE APEX COURT ALSO DWELT ON THE OBJECT OF INTRODUCING THE SAID SECTIONS, I.E., TO P RE-EMPT THE ASSESSEES FROM GIVING FALSE EXPLANATIONS FOR THEIR UNACCOUNTED MONEY OR MAKING FALSE ENTRIES, WHERE THE SAME IS UNEARTHED DURING SEARCHES AND SEIZURES, I.E., BY MA NIPULATING THE RECORDS WITH REFERENCE TO CASH ENTRIES, WHILE NO SUCH FINDING OBTAINS IN T HE INSTANT CASE. WE FIND THE SAME AS OF NO MOMENT; THE AO, ADVERTING TO THE SAME DECISION, STATING THAT THE APEX COURT HAS CLEARLY HELD THAT THE DISCRETION FOR THE NON-LEVY O F THE PENALTY UNDER SECTIONS 271D AND 271E BY THE AUTHORITIES W.R.T. SECTION 273B OF THE ACT IS WHERE THE ASSESSEE WAS ABLE TO SHOW THAT THE TRANSACTION WAS GENUINE AND BONA FIDE , AND THAT THE TAX PAYER COULD NOT TAKE OR REPAY THE LOAN/DEPOSIT BY ACCOUNT PAYEE CHEQUE O R DRAFT FOR SOME BONA FIDE REASON. AS SUCH, THE CONDITIONS FOR THE NON-LEVY OF PENALTY AS SPELT OUT BY THE HONBLE APEX COURT ITSELF HAD ADMITTEDLY NOT BEEN MET IN THE INSTANT C ASE. 10.4 THE ASSESSEE HAS, BEFORE US, ALSO RELIED O N THE FACT THAT LIKE PENALTIES INITIATED IN A SUBSEQUENT YEAR, STOOD DROPPED. WE FIND THIS FACT A S OF LITTLE CONSEQUENCE, AS THE ISSUE UNDER CHALLENGE BEFORE US IS THE MAINTAINABILITY IN LAW OF THE PENALTY AS LEVIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE FACTS AND CIRCU MSTANCES OF THE SUBSEQUENT YEAR, WHEREAT THE PENALTY, THOUGH INITIATED, STOOD DROPPE D, ARE NOT BEFORE US. ALSO, AS WOULD BE APPARENT, THE SAID DROPPING IS BY A ONE LINE ORDER, SO THAT IT IS ALSO NOT THE CASE THAT THE PENALTY WAS FOUND NOT LEVIABLE ON AN APPRECIATION O F THE ASSESSEES CASE FOR THAT YEAR, AND WHICH COULD BE RELEVANT. THE SAID APPRECIATION, IF ANY, HAS TO BE DISCERNABLE FROM THE ORDER ITSELF, PARTICULARLY WHERE IT IS TO BE RELIED UPON, AND BEING URGED BEFORE US. THE SAID DROPPING WOULD, UNDER THE CIRCUMSTANCES, LITTLE ASS ISTANCE TO THE ASSESSEE. 10.5 UNDER THE GIVEN FACTS AND CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE FACTUAL AND LEGAL FINDINGS BY THE AUTHORITIES BELOW, BOTH OF WH ICH HAVE PASSED DETAILED ORDERS, WHICH, BEING COMPLIMENTARY TO EACH OTHER, STAND CAREFULLY PERUSED BY US. WE, THEREFORE, ENDORSING THE SAME, CONFIRM THE LEVY OF PENALTY U/S . 271D OF THE ACT, ALSO PLACING ITA.NO. 167, 168 & 169/COCH./2009 11 RELIANCE ON THE DECISION BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. K.Y.PILLIAH AND SONS (1967) 63 ITR 411(SC) IN VIEW OF OUR AGREEMENT AFO RESAID. WE DECIDE ACCORDINGLY. 11. IN THE RESULT, THE ASSESSEES APPEAL IN I.T.A. NO. 168/COCH/2009 IS DISMISSED. PENALTY U/S. 271E [IN I.T.A. NO. 169/COCH/2009] 12.1 AT THE VERY OUTSET, WE MAY STATE THAT THE LD. CIT(A) HAS PARTLY ALLOWED THE ASSESSEES APPEAL BY FINDING THE ASSESSEES OBJECTI ON WITH REGARD TO THE PENALTY LEVIED QUA THE REPAYMENT TO SHRI K.V.KARUNAKARAN AS HAVING BE EN ONLY MISTAKENLY AT ` 8. 10 LAKHS AS AGAINST THE REPAYMENT OF ` 5.70 LAKHS AS CORRECT. COMING TO THE MERITS OF THE CASE, WE FIND THAT, LIKEWISE, EXTENSIVE OPPORTUNITY STOOD PROVIDED BY THE AO TO THE ASSESSEE TO ESTABLISH ITS CASE ON FACTS QUA EACH OF THE OBJECTIONS RAISED BEFORE HIM FOR THE NON-LEVY OF THE PENALTY, I.E., IN VIEW OF THE CLEAR VIOLATION/S OF SECTION 269T, AN ADMITTED FACT. APART FROM THE ALIBI OF A REASONABLE CAUSE; THE ASSESSEE FAILING TO SUB STANTIATE HIS STAND IN ANY MANNER, THE ASSESSEE RAISED THE PLEA O F THE REPAYMENT/S RELATING TO CHEQUE DISCOUNTING, AND QUA WHICH THE AO HAS GIVEN A SPECIFIC FINDING, ON AN E XAMINATION OF THE ASSESSEES RECORDS AS WELL AS BANK ACCOUNTS OF THE OTHER PERSONS CONCERNED, THAT THESE DID NOT RELATE TO CHEQUE DISCOUNTING OR THAT THE REPAYMENTS WERE REQUIRED TO BE MADE IN CA SH (AT PAGE 3 OF THE PENALTY ORDER). THAT THE ASSESSEE HAS NOT BEEN ABLE TO IN ANY MANNER SHOW THE URGENCY FOR THE PAYMENTS IN CASH IS AN ACC EPTED POSITION OF ITS CASE, WHICH WOULD RATHER FALL TO BE COVERED UNDER ITS PLEA OF A REASONABLE CAUSE. HOWEVER, IF AND TO THE EXTENT THE CASH PAYMENTS ARE FOUND TO BE A RESU LT OF THE CHEQUE DISCOUNTING SCHEME; THE AO USING THE WORD OR IN HIS FINDING, THE SAME CANNOT BE SAID TO BE IN C ONTRAVENTION OF SECTION 269T, WHICH, AS ALSO AFORE-STATED, IS ALSO THE ASSESSEES PRINCIPAL CASE BEFORE US. 12.2 THE LD. CIT(A), WE FIND HAS, HOWEVER, NOT FOUND THIS TO BE ACCEPTABLE, DETAILING THE REASONS FOR THE SAME VIDE PARA 4.4 OF HIS ORDER . THE VERY FACT THAT THE SAID IMPUGNED CASH TRANSACTIONS ARE SAID TO BE A RESULT OF THE C HEQUE DISCOUNTING TRANSACTIONS, WHICH ONLY IMPLIES THAT THE ASSESSEE DISCOUNTED THE CHEQU ES ISSUED BY THE LOAN-CREDITORS, MEANS THAT THEY HAD A BANK ACCOUNT. THE ASSESSEE HAS BEEN UNABLE TO EXPLAIN AS TO WHY ITA.NO. 167, 168 & 169/COCH./2009 12 REPAYMENTS, AND THAT TOO OVER AND OVER AGAIN, HAD T O BE MADE IN CASH, SO THAT THESE TRANSACTIONS WERE A REGULAR FEATURE AND NOT ISOLATE D TRANSACTIONS. A BALD STATEMENT, STATING THAT THE PERSON CONCERNED WANTED MONEY IN CASH, WOU LD NOT BE SUFFICIENT FOR THE PURPOSE. HE, THEREFORE, FOUND THE SAME AS OF NO CONSEQUENCE. WE ARE IN AGREEMENT WITH THE OBSERVATIONS OF THE LD. CIT(A), I.E., IN PRINCIPLE. HOWEVER, TO THE EXTENT THE IMPUGNED TRANSACTIONS ARE A RESULT OF CHEQUE DISCOUNTING TRA NSACTIONS, WHICH STAND EXCLUDED BY THE AO WHILE DETERMINING THE LIABILITY TO PENALTY U/S. 271D, THERE IS, IN OUR VIEW, NO VIOLATION OF SECTION 269T SO AS TO ATTRACT PENAL ACTION U/S. 271E. HERE IT WOULD BE RELEVANT TO DELINEATE THE MODUS OPERANDI OF THE SAID SCHEME. A PERSON WITH NO ACCESS TO, BU T REQUIRING FUNDS ALL THE SAME, PRESENTS A CHEQUE DRA WN BY A THIRD PERSON IN HIS FAVOUR TO HIS BANK, WHICH HONOURS THE SAME, SO THAT HE (ASSES SEE) GETS THE REQUIRED FUNDS. THE CHEQUE, WHICH IS USUALLY DRAWN ON ANOTHER BANK, SO THAT IT COMES UP FOR CLEARING WITH THE ASSESSEES BANK ONLY A FEW DAYS LATER, GETS HONOURE D BY THE ASSESSEE DEPOSITING THE FUNDS IN THE CHEQUE ISSUERS BANK ACCOUNT. THE CHEQUE GE TS CLEARED AND ENTRY IS SQUARED UP IN THE ASSESSEES ACCOUNTS. THE CHEQUE BEING DISCOUNTE D IS USUALLY AN OUTSTATION CHEQUE, SO THAT IT COMES TO BE PRESENTED FOR PAYMENT TO THE AS SESSEES BANK ONLY AFTER A LAPSE OF SOME TIME THE PURPOSE OF THE ENTIRE ARRANGEMENT B EING TO `GENERATE FUNDS REQUIRED FOR BUSINESS. THE BANK CHARGES A DISCOUNTING FEE WHICH BECOMES ITS CONSIDERATION FOR PARTICIPATING IN THE SAID MODUS OPERANDI , WHICH IS ONLY COLLUSIVELY, AS IT IS BUT AWARE THA T THE ISSUER OF CHEQUE IS ONLY A NAME LENDER AND THE CHEQUE STANDS ISSUED WITHOUT AN ADEQUATE BALANCE. SO HOWEVER, AS WOULD BE APPARENT FROM THE FOREGOING, THERE IS NO ACTUAL MOVEMENT OF FUNDS FROM THE THIRD PERSON TO T HE ASSESSEE. THE CHEQUE ISSUER IS ONLY AN OSTENSIBLE LENDER. THE FUNDS ADVANCED TO THE ASS ESSEE IN THE FIRST INSTANCE, THOUGH AGAINST A CHEQUE ISSUED BY HIM, ARE IN FACT FROM TH E ASSESSEES BANK ITSELF. LIKEWISE, WHEN THE ASSESSEE REPAYS BY DEPOSITING CASH IN THE BANK ACCOUNT OF THE CHEQUE ISSUER, THE MOVEMENT OF FUNDS IS AGAIN FROM THE ASSESSEE TO A B ANK. IN SHORT, THE CHEQUE ISSUER IS ONLY A NAME LENDER, AND THE ACTUAL MOVEMENT OF FUND S, BOTH INCOMING AND OUTGOING, IS BETWEEN THE ASSESSEE AND A BANK, WHICH IS SPECIFICA LLY EXCLUDED FROM THE PURVIEW OF SECTIONS 269SS AND 269T OF THE ACT. AS SUCH, CONSI DERATIONS, SUCH AS THE FACT THAT THE CHEQUE ISSUER/S HAS A BANK ACCOUNT, AND NO COMPELLI NG NECESSITY FOR RECEIPT OR REPAYMENT IN CASH HAS BEEN SHOWN BY THE ASSESSEE, WOULD BE OF LITTLE RELEVANCE WHERE THE CASH ITA.NO. 167, 168 & 169/COCH./2009 13 TRANSACTIONS ARE ESTABLISHED TO BE A RESULT OF CHEQ UE DISCOUNTING TRANSACTIONS. FURTHER ON, IT MAY WELL BE THAT THE CHEQUE DISCOUNTING TRANSACT IONS ARE ONLY A RUSE, AND THE MONIES STAND ADVANCED BY THE BANK, THOUGH APPARENTLY AGAIN ST CHEQUES, BUT ESSENTIALLY AGAINST THE ASSESSEES OR A RELATED PERSONS SECURITIES, WH ICH DO NOT REPRESENT DECLARED ASSETS, SO THAT THE REAL UNDERSTANDING CANNOT BE DISCLOSED. WE SAY SO AS THE MODUS OPERANDI IS QUITE RISKY, AND THE BANKS, DEAL AS THEY DO WITH PUBLIC M ONEY AND ARE BOUND WITH RULES, ARE GENERALLY DISINCLINED TO UNDERTAKE SUCH RISK, DOING SO ONLY OCCASIONALLY AND QUA CHEQUES ISSUED BY REPUTED PARTIES - WHICH THEY DEEM AS SAFE REPRESENTING GENUINE BUSINESS TRANSACTIONS. HOWEVER, THE REVENUE HAS NOT MADE ANY SUCH CASE, WHICH WOULD AGAIN REQUIRE FACTUAL FINDINGS. THE LD. CIT(A) HAS ALSO OBSERVED THAT IN SOME INST ANCES CASH REPAYMENTS TO ONE PERSON HAVE BEEN MADE ON 10 OR SO OCCASIONS (AT ` 20,000/- EACH) ON THE SAME DAY. THE SAME, IN VIEW OF THE FOREGOING, WOULD BE OF NO MOME NT. IN FACT, IT MAY WELL BE THAT THE ASSESSEE RECORDED MULTIPLE CASH TRANSACTIONS IN HIS ACCOUNTS UNDER THE MISTAKEN IMPRESSION OF BEING THEREBY SAVED FROM THE CONTRAVE NTION OF 269T, I.E., IT COULD WELL BE A RUSE, AND THE ENTIRE AMOUNT (OF ` 2 LAKHS, SAY) IS DEPOSITED IN CASH IN THE DEPOSITOR S BANK ACCOUNT ON THAT DAY. AT THE SAME TIME, IT COULD AL SO BE THAT THESE TRANSACTIONS DO NOT ACTUALLY REPRESENT CASH DISCOUNTING TRANSACTIONS, A S THE ASSESSEE WOULD IN THAT CASE NORMALLY MAKE A LUMP-SUM PAYMENT. THE SAME ONLY, T HUS, POINTS OUT TO THE NEED FOR A FACTUAL DETERMINATION OF THE MATTER. 12.3 WE ARE, FOR THE REASONS AFORE-STATED, NOT IN A GREEMENT WITH THE REVENUES STAND TO THE EXTENT THE REPAYMENTS ARE SHOWN TO BE A RESULT OF CHEQUE DISCOUNTING TRANSACTIONS. WE, THEREFORE, RESTORE THIS MATTER BACK TO THE FILE OF THE LD. CIT(A) TO GIVE A SPECIFIC FINDING AS TO THE EXTENT TO WHICH THE IMPUGNED TRAN SACTIONS REPRESENT CHEQUE DISCOUNTING TRANSACTIONS AND, ACCORDINGLY, DELETE THE PENALTY T O THAT EXTENT, WHICH SHALL BE PRECEDED BY AN OPPORTUNITY OF HEARING TO BOTH THE PARTIES. HE MAY, AT HIS DISCRETION, REQUIRE VERIFICATION BY THE AO IN THE MATTER FOR THE PURPOS E. SO, HOWEVER, TO THE EXTENT HIS FINDINGS ARE IN DISAGREEMENT WITH THAT OF THE AO, S O THAT THE SAME GET REVERSED OR MODIFIED, HE SHALL, BEFORE DOING SO, EXTEND AN OPPO RTUNITY OF HEARING TO HIM. FOR THE BALANCE, THE LEVY OF THE PENALTY IS CONFIRMED. ALL OUR OBSERVATIONS IN RELATION TO THE ITA.NO. 167, 168 & 169/COCH./2009 14 ASSESSEES APPEAL IN I.T.A. NO. 168/COCH/2009 WOULD BE EQUALLY APPLICABLE AND BE CONSIDERED AS FORMING PART OF OUR ORDER IN ITS APPE AL IN I.T.A. NO. 169/COCH/2009 AS WELL. 13. IN THE RESULT, THE ASSESSEES APPEAL IN I.T.A. NO. 169/COCH/2009 IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST DECEMBER, 2010 GJ COPY TO: 1. SHRI K.K.PRAVEEN, XL/9299, POWER WORLD, PULLEPAD Y, ERNAKULAM-35. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2( 2), ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI CONCERNED. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRA R) ITA.NO. 167, 168 & 169/COCH./2009 15