The ITO, Ward 14(2), Ahmedabad V. Shri Dattuprasad Manharlal Dave, Ahmedabad

ITA 1816/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9832 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 07-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide belief; Reasonable cause
• Section: 273B; 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ./ ITA NO. 1816/AHD/2013 / ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER WARD-14(2) AHMEDABAD .. APPELLANT VS DATTUPRASAD MANHARLAL DAVE, 13, TULSHIVRUND SOCIETY, NR. SUNFLOWER SCHOOL, MALAV TALAV ROAD, JIVRAJ PARK AHMEDABAD .. RESPONDENT PAN : AAQPD 9292 D REVENUE BY : SHRI JAMES KURIAN, SR - DR ASSESSEE(S) BY : SHRI HARDIK VORA, AR / DATE OF HEARING 07/12/2015 /DATE OF PRONOUNCEMENT 13/01/2016 / O R D E R PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XXI, AHMED ABAD DATED 17.04.2013 FOR ASSESSMENT YEAR 2009-10, ON TH E FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FATS AND ALSO IGNORED THE FACTS THAT THERE WAS NO REASONABLE CAUSE WHICH PREVENTED THE ASSESSEE TO COMPLY WITH THE ITA NO.181/ AHD/2013 ITO VS. DATTUPRASAD MANHARLAL DAVE AY 2009-10 - 2 - PROVISIONS OF SECTION 269SS AND 269T RESULTING LEVY OF PENALTY U/S 271D AND 271E OF THE I.T. ACT, 1961. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FAC TS BY NOT APPRECIATING THE FACT THAT THE FACTS OF REASONA BLE CAUSE WAS ALREADY DISCUSSED IN THE PENALTY ORDER AN D THERE WERE NEITHER JUSTIFIED NOR BONAFIDE. 3. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FA CT BY HOLDING THAT TRANSACTION BETWEEN CLOSE RELATIVES IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SS AN D 269T OF THE I.T. ACT, 1961 WILL GET IMMUNITY FROM THE PE NAL PROVISION OF SECTION 271D AND 271E OF THE I.T. ACT, 1961. 4. THAT THE ORDER OF LD. CIT(A) BEING BAD IN LAW A ND IN FACT IS LIABLE TO BE REVERSED AND THAT THE ORDER OF THE AO IS LIABLE TO BE RESTORED IN TOTO. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A TEACHER AND SERVING IN GANDHI VIDHYALAY, ASARWA, AH MEDABAD FOR MORE THAN 30 YEARS. DURING THE YEAR UNDER CONS IDERATION, THE ASSESSEE HAS RECEIVED RS.10,90,000/- FROM THE C LOSE FAMILY MEMBERS, VIZ., FATHER, BROTHER AND WIFE AND REPAID RS.10,45,000/-. THE ASSESSING OFFICER ISSUED SUMMO NS U/S 131 OF THE INCOME-TAX ACT DURING THE ASSESSMENT PRO CEEDINGS UPON MAHENDRA MANHARLAL DAVE, BROTHER OF ASSESSEE A ND MRS. SHAKUNTALABEN PATHAK WIFE OF ASSESSEE IN RESPECT OF AMOUNT OF RS.7,45,000 AND RS.3,00,000/- RESPECTIVELY. BOTH THE ITA NO.181/ AHD/2013 ITO VS. DATTUPRASAD MANHARLAL DAVE AY 2009-10 - 3 - PERSONS CONFIRMED THE TRANSACTIONS WITH PROOF OF SO URCE OF THE MONEY FROM WHICH ACCOUNT IT HAD BEEN GIVEN TO THE A SSESSEE. THE ASSESSEE HAD ALSO RECEIVED RS.45,000/- FROM HIS FATHER, WHO WAS DIED AFTERWARDS. DEATH CERTIFICATE IN THIS REGARD HAD ALREADY BEEN PRODUCED BEFORE THE ASSESSING OFFICER AT THE STAGE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER D ID NOT FIND THESE TRANSACTIONS WERE EITHER NON-GENUINE OR SHAM TRANSACTION TO COVER UP THE UNACCOUNTED MONEY. HOW EVER, THE ASSESSING OFFICER LEVIED PENALTY U/S 271D AND 271E OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS TAKEN OR ACCEPT ED THE LOAN/DEPOSIT IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SS AND 269T READ WITH SECTION 271D AND 271E OF T HE ACT. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F THE ASSESSEE. BEFORE THE CIT(A), THE STAND OF THE ASSE SSEE HAS BEEN THAT HIS SON WAS APPLYING FOR VISA FOR HIGHER STUDI ES ABROAD, HENCE TO GET VISA, ASSESSEE NEEDED URGENT MONEY TO SHOW THE HIGHER BALANCE IN BANK ACCOUNT AND THEREFORE, HE HA D BORROWED THE MONEY FROM CLOSE RELATIVES VIZ, FATHER , BROTHER AND WIFE. IN THE PENALTY PROCEEDINGS, IT WAS SUBMI TTED THAT BONAFIDE BELIEF COUPLED WITH THE GENUINENESS OF TRA NSACTIONS WOULD CONSTITUTE REASONABLE CAUSE WITHIN THE MEANIN G OF ITA NO.181/ AHD/2013 ITO VS. DATTUPRASAD MANHARLAL DAVE AY 2009-10 - 4 - PROVISIONS OF SEC.273B OF THE ACT. FURTHER, A FAMIL Y TRANSACTION BETWEEN TWO INDEPENDENT ASSESSEES BASED ON AN ACT OF CASUALNESS WOULD ESTABLISH REASONABLE CAUSE WITHIN THE MEANING OF PROVISION OF SEC. 273B OF THE ACT. IN TH E APPELLATE PROCEEDINGS, THE CIT(A) HAVING CONSIDERED ALL THESE SUBMISSIONS OF ASSESSEE, OBSERVED THAT THE ASSESSEE HAS NOT ONL Y PRODUCED CLOSE RELATIVES FROM WHOM THE ASSESSEE HAS TAKEN LO AN BUT ALSO GIVEN EVIDENCE THAT THE LOAN WAS GIVEN IN CASH, WHI CH WAS WITHDRAWN BY THEIR OWN RESPECTIVE ACCOUNT ON THE SA ME DAY OR ONE DAY BEFORE; THUS, HE HELD THAT THE GENUINENESS OF TRANSACTION WAS ESTABLISHED AND THE ASSESSEE COULD ALSO ESTABLISH THE REASONABLE CAUSE FOR THE SAME. THUS, THE CIT(A) HAS RIGHTLY DELETED THE PENALTIES U/S 271D & 271E O F THE ACT, BECAUSE THE ASSESSEE HAS SHOWN REASONABLE CAUSE TO ACCEPT THE MONEY FROM HIS CLOSE RELATIVES LIKE FATHER, BRO THER AND WIFE AND PAYMENT THEREOF. THEREFORE, THESE REASONED FIN DINGS OF THE CIT(A) NEED NO INTERFERENCE FROM OUR SIDE. WE UPHO LD THE SAME. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 13TH OF JANUARY, 2 016 AT AHMEDABAD. SD/- SD/- (RAJESH KUMAR) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER AHMEDABAD; DATED /01/2016 *BT ITA NO.181/ AHD/2013 ITO VS. DATTUPRASAD MANHARLAL DAVE AY 2009-10 - 5 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), 5. !'# $$ , , / DR, ITAT, AHMEDABAD 6. #() / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD