Smt Darshana Franky Thakkar, Latur V. Addl CIT Rg-8, Nanded

ITA 1839/PUN/2012

• Counselvise Citation: 183924514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 13-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1839/PN/2012 (A.Y.: 2007-08) SMT. DARSHANA FRANKY THAKKAR PROP. OF KUTCH TRADERS VRUNDAVAN DHAM, VARDHAMAN CHAMBERS, LATUR PAN: AEQPT2524C APPELLANT VS. ADDL. CIT, RANGE 3, NANDED RESPONDENT APPELLANT BY : SHRI M.K. K ULKARNI RESPONDENT BY : SHRI S.P . WALIMBE DATE OF HEARING: 31.12.2013 DATE OF ORDER : 31.12.2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), [SHORT CIT (A)] AURANGABAD, DATED 30.08.2012 ON THE FOLLOWING GROUN DS. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)-AURGANABAD WAS JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSEE HAD CONTRAVENED THE PROVISIONS OF S. 269SS OF THE ACT BY ACCEPTING THE LOANS IN CASH? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE AUTHORITIES BELOW MISDIRECTED THEMSELVES IN HOLDING THAT THE LOANS HAD BEEN OBTAINED BY THE ASS ESSEE OTHERWISE BY ACCOUNT PAYEE CHEQUES WHEN IN FACT AND LAW THE SAID AMOUNT WAS NOT A LOAN AS IT HAD NO ATTRIBU TES OF LOAN TRANSACTIONS 2 3. WHETHER THE CIT(A) WAS REQUIRED TO APPRECIATE THE PROVISIONS OF S.273B OF THE ACT AS THE ASSESSEE ACC EPTED THE SAID AMOUNT WHICH WERE NOT WITHOUT REASONABLE CAUSE ? 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW AND IN VIEW OF GROUNDS OF APPEAL LISTED AT GR. NO. 1 TO 3 ABOVE THE PENALTY UNDER S.271-D WAS NOT EXIGIBLE AN D THEREFORE PENALTY LEVIED BE QUASHED. 5. THE APPELLANT CRAVES/LEAVE TO ADD, AMEND OR ALTER A NY OF THE ABOVE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN TRADING THE BUSINESS UNDER THE NAME AND STYLE OF M/S. KUTCH TRA DERS. DURING THE YEAR UNDER APPEAL, THE ASSESSEE HAS ACCE PTED LOAN OF RS.1,31,000/- AND RS.1,81,000/- ON VARIOUS DATES FR OM SHRI HARISHBHAI JETHAMAL THAKKAR AND SHRI PINGALESHWAR M AHADEO THAKKAR. THE ASSESSING OFFICER HAS HELD THAT THE A BOVE PAYMENTS WERE RECEIVED IN CONTRAVENTION OF SECTION 269SS AND HAS LEVIED PENALTY U/S.271D OF RS.3,12,000/- WHICH WAS CONFIRMED BY THE CIT(A). THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF ASSESSEE. THE LEARNED AUTHORIZED REPR ESENTATIVE SUBMITTED THAT THE ASSESSEE HAS NOT CONTRAVENED THE PROVISIONS OF SECTION 269SS OF I.T. ACT BY ACCEPTING THE LOAN IN CASH BECAUSE THE SAME WAS DONE FOR BUSINESS EXIGENCIES AS DEFENS E OF PROVISIONS OF SECTION 271D OF I.T. ACT AS THE ASSES SEE HAS RECEIVED THE LOAN IN CASH FOR A REASONABLE CAUSE I.E. BUSINE SS EXIGENCY. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTAT IVE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 2.1 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND AND UNDISPUTED THAT THE ASSESSEE HA S ACCEPTED THAT LOAN OF RS.1,31,000/- AND RS.1,81,000/- ON VAR IOUS DATES FROM SHRI HARISHBHAI JETHAMAL THAKKAR AND SHRI PING ALESHWAR MAHADEO THAKKAR. THE CONTENTION OF THE ASSESSEE HA S BEEN THAT LOAN TAKEN FROM RELATIVES FOR BUSINESS EXIGENCY AND HENCE NOT COVERED BY PROVISIONS OF SECTION 269SS. HOWEVER, T HE ASSESSEE HAS NOT ESTABLISHED THE BUSINESS EXIGENCY AS CLAIME D BY HER 3 BEFORE AUTHORITIES BELOW. SO, THE ASSESSEE COULD N OT DISCHARGE HER BURDEN FOR EXISTENCE OF REASONABLE CAUSE FOR AC CEPTING THE LOAN IN CASH IN CONTRAVENTION OF PROVISIONS OF SECT ION 269SS OF I.T. ACT. IN VIEW OF ABOVE, THE ASSESSING OFFICER HAS JUSTIFIED IN LEVYING PENALTY U/S.271D OF RS.3,12,000/-, WHICH NE EDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 31 ST DAY OF DECEMBER, 2013. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 31 ST DECEMBER 2013 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A), AURANGABAD 4) THE CIT, AURANGABAD 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE