Shri Suporno Sil, Kolkata V. J.C.I.T.,Range-43, Kolkata

ITA 171/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3518 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Reasonable cause
• Section: 273B; 271D

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.171/KOL/2019 ( / ASSESSMENT YEAR: 2011-12) SHRI SUPORNO SIL 63/B, AHIRITOLA STREET, KOLKATA- 700005, WEST BENGAL. VS. JCIT, RANGE-43, KOLKATA ./ ./PAN/GIR NO.: ARSPS 6969 B (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. RANU BISWAS, ADDL. CIT / DATE OF HEARING : 31/10/2019 /DATE OF PRONOUNCEMENT : 13/11/2019 / O R D E R PER BENCH: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PE RTAINING TO ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-13, KOLKATA, WHICH IN TURN ARISES OUT OF P ENALTY ORDER PASSED BY THE ASSESSING OFFICER U/S 271D OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 08/07/2014. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE SHRI SUPORNO SIL ITA NO.171/KOL/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. FOR THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPOSITION OF PENALTY IS PERVERSE, RATHER AGAINST EVIDENCE AND MATERIAL ON RECORD AND WITHOUT AN IOTA OF MATERIAL OR EVIDENCE TO SUPPORT AND SUSTAIN THE SAME. 2. FOR THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED PENALTY IMPOSED U/S 271D AMOUNTING TO RS. 8,95,723/ - BY THE JOINT COMMISSIONER OF INCOME TAX, RANGE-42, KOLKATA AND C ONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL)-13, KOLKATA IS PERVERSE AND OUGHT TO BE DELETED IN ENTIRETY. 3. FOR THAT, THE APPELLANT CRAVES LEAVE TO ADD, ALT ER, AMEND OR WITHDRAW ANY GROUND AT ANY TIME BEFORE OR AT THE TIME OF HEARING . 4. BRIEF FACTS QUA THE ISSUE ARE THAT DURING THE CO URSE OF ASSESSMENT PROCEEDINGS U/S.143(3) OF THE I.T.ACT,1961 IN THE CASE OF SRI S ANDIP SIL, PROP. OF SIL ENTERPRISE FOR THE A.Y. 2011-12 IT WAS FOUND BY THE ASSESSING OFFICER THAT A LOAN OF RS.8,95,723/- HAS BEEN RECEIVED FROM SRI SANDIP SIL BY THE ASSESSEE (SHRI SUPORNO SIL) IN CASH DURING THE F.Y.2010-11, IN CONTRAVENTI ON OF SECTION 269SS OF THE I.T.ACT,1961, WHICH ATTRACTS PENALTY U/S.271D OF TH E I.T. ACT,1961. A SHOW-CAUSE NOTICE DT.17.06.2014 WAS ISSUED TO ASSESSEE ASKING THE ASSESSEE, (SRI SUPORNO SIL, PROP. OF SIL BUILDERS) TO REPLY WITH DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. NO REPLY WAS RECEIVED FROM ASSESSEE, THEREFORE, AS SESSING OFFICER IMPOSED PENALTY U/S 271D OF THE ACT TO THE TUNE OF RS.8,95, 723/-. 5. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED T HE PENALTY IMPOSED BY THE ASSESSING OFFICER. 6. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US. 7. BEFORE US THE LD. DR HAS PRIMARILY REITERATED TH E STAND TAKEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. SHRI SUPORNO SIL ITA NO.171/KOL/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 3 33 3 8. WE HEARD LD. D.R. FOR THE REVENUE AND PERUSED TH E MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE IS ENGAGED IN THE BUSINE SS AS TRADER OF CEMENT UNDER THE NAME AND STYLE OF M/S SIL BUILDERS. WE NOTE THA T DURING THE FINANCIAL YEAR: 2010-2011, THE ASSESSEE HAS RECEIVED THE IMPUGNED A MOUNT OF RS.8,95,723/- FROM HIS OWN BROTHER, MR SANDIP KUMAR SIL. THE SAID AMOU NTS WERE PAID BY HIS BROTHER AS TRANSPORTATION EXPENSES OF CEMENT (IN WHICH THE ASSESSEE DEALS) AND IT HAS BEEN RECORDED IN BOOKS OF ACCOUNT OF BOTH THE ASSESSES. FROM THE ABOVE FACTS, IT APPEARS TO US THAT THE ASSESSEE HAS RECEIVED RS.8,95,723/- FROM HIS OWN BROTHER ON ACCOUNT OF BUSINESS EXIGENCIES. BOTH, THAT IS, BROTHER AND ASSESSEE SHARE THE SAME PREMISES FOR THEIR OFFICE. THE ASSESSEE SUBMITTED DURING TH E APPELLATE PROCEEDINGS THAT ONLY TRANSPORTATION EXPENSES OF ASSESSEE HAS BEEN PAID B Y HIS BROTHER WHICH IS VIVID AND CRYSTAL CLEAR FROM THE LEDGER OF M/S SIL ENTERP RISE (PROP.: SANDIP KUMAR SIL) SINCE NORMALLY ASSESSEE IS SHORT OF CASH AND HENCE HAS TO BORROW FREQUENTLY FROM HIS OWN BROTHER. WE NOTE THAT THESE ARE TRANSACTION BETWEEN FAMILY MEMBERS ON ACCOUNT OF BUSINESS EXIGENCIES FOR FINANCIAL SUPPOR T TO EACH OTHER WHICH IS COVERED BY THE JUDGMENT OF CO-ORDINATE BENCH OF ITAT KOLKAT A IN ITA NO. 1839/KOL/2010 IN THE CASE OF MANISHA PRAKASH AMIN V S. JCIT ORDER DATED 24.05.2011, WHEREIN IT HAS BEEN HELD THAT THE LOANS FROM RELATIVES ARE IN THE NATURE OF FINANCIAL SUPPORT WITHIN THE FAMILY AND THIS IS A REASONABLE CAUSE FALLING U/S 273B OF THE ACT. IN THE INSTANT CASE THE TRANSACTIO N IS BETWEEN TWO BROTHERS FOR GIVING FINANCIAL SUPPORT AND HELP WHICH IS NOT A LO AN OR DEPOSIT IN STRICTER SENSE, THEREFORE, WE DELETE THE PENALTY OF RS.8, 95,723/-. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 13.1 1.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 13/11/2019 ( SB, SR.PS ) SHRI SUPORNO SIL ITA NO.171/KOL/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. SHRI SUPORNO SIL 2. JCIT, RANGE-43, KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES