Avijit Saha, Kolkata V. JCIT, Range-2, Hooghly, Hooghly

ITA 198/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1756 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 24-02-2015
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Reasonable cause

Judgement Text

1 ITA NO.198/KOL/2015 AVIJIT SAHA AY 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, AM & SHRI A. T. VARKEY, JM] I.T.A. NO. 198/KOL/2015 ASSESSMENT YEAR: 2009-10 AVIJIT SAHA (PAN: AYZPS9600H) VS. JOINT COMMISSIONE R OF INCOME-TAX, RANGE-2, HOOGHLY APPELLANT RESPONDENT DATE OF HEARING 15.05.2017 DATE OF PRONOUNCEMENT 24.05.2017 FOR THE APPELLANT SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-6, KOLKATA DATED 29.01.2015 FOR AY 2009-10. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) UPHOLDING THE DECISION OF THE JCIT, RANGE-2, KOLKAT A IN IMPOSING PENALTY OF RS.7.80 LACS U/S. 271D READ WITH SECTION 269SS OF THE INCOM E-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SHRI SOMNATH GHOSH STATED THAT THE PENALTY U/S. 271D READ WITH SECTION 269SS OF THE ACT IS NOT APPLICABLE TO THE FACTS OF THE CASE BECAUSE THE ASSESSEE ACCEPTED AN AMOUNT OF RS. 7.80 LACS ON ACCOUNT OF TEMPORARY FINANCIAL ACCOMMODATION FROM HIS MOTHE R SMT. ALPANA SAHA. ACCORDING TO HIM, TAKING CASH FROM MOTHER/PARENT OUT OF BUSIN ESS EXPEDIENCY CANNOT ATTRACT PENALTY U/S. 271D R.W.S. 269SS OF THE ACT. LD. COUN SEL DREW OUR ATTENTION TO THE COORDINATE BENCH DECISION IN SWAPAN DUTTA VS. JCIT, RANGE-2, HOOGHLY, REPORTED IN 2010 TAX L. R. 166, WHEREIN IT WAS HELD AS UNDER: 2 ITA NO.198/KOL/2015 AVIJIT SAHA AY 2009-10 5. AFTER HEARING BOTH THE PARTIES AND PERUSING TH E MATERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY THE ASSESSEE, WE FIND THAT I N THIS CASE, ADMITTEDLY, THE MONEY HAS COME FROM THE PARENTS OF THE ASSESSEE. THEREFORE, T HE RATIO LAID DOWN IN THE CASE OF G. D. SUBRAYA SHEREGAR V. I. T.O. (2006) 10 378 BY THE BANGALORE BENCH OF THIS TRIBUNAL IS SQUARELY APPLICABLE TO THE FACTS OF THIS CASE, W HEREIN CONTRAVENTION OF PROVISION OF S. 269-SS WAS HELD TO BE NOT APPLICABLE IN A TRANSACTI ON BETWEEN A FATHER 'AND SON. WE FURTHER FIND THAT THE FACT THAT THE ASSESSEE WAS IN NEED OF FUNDS AND TOOK THIS MONEY FROM HIS PARENTS WHOSE BUSINESS WAS CONDUCTED BY HIM ON THEIR BEHALF HAS NOT BEEN DISPUTED BY THE REVENUE BEFORE US. IN SUCH CIRCUMSTANCES, TH ERE IS A REASONABLE CAUSE FOR TAKING MONEY IN CASH FROM HIS PARENTS OUT OF BUSINESS EXPE DIENCY. THIS VIEW OF OURS IS SUPPORTED BY THE DECISION OF RAJASTHAN HIGH COURT I N THE CASE OF CIT VS. MANOJ LALWANI (2003) 260 ITR 590; (2003) TAX LR 290) (RAJ ), WHEREIN IT WAS HELD THAT WHEN LOAN IN CASH HAS BEEN TAKEN IN VIEW OF URGENT NEED CONNECTED WITH EXPORT, TRIBUNAL WAS JUSTIFIED IN DELETING THE PENALTY U/S. 271D. WE AL SO FIND FORCE IN THE ARGUMENT TAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT ASSESSEE BEING A LAYMAN WAS NOT AWARE OF THE PROVISIONS OF THE ACT AS SUCH, THE DEFAULT, IF ANY, WAS ATTRIBUTABLE TO IGNORANCE OF STATUTORY PROVISIONS OF THE ACT. THE ASSESSEES C ASE FINDS SUPPORT FROM THE DECISION OF THE DELHI TRIBUNAL IN THE CASE OF FARRUKHABAD INVES TMENT (I) LTD. V. JCIT (2003) 85 ITR 230 (DEL) WHERE THE PROFESSIONAL AUDITORS, EXPE RTS IN THE FIELD OF TAXATION, DID NOT POINT OUT ANY VIOLATION OF S. 269 SS OF THE ACT, IT WAS HELD THAT IT WOULD BE TOO MUCH TO EXPECT FROM THE ASSESSEE TO KNOW THESE PROVISIONS A ND AS SUCH THE PENALTY IMPOSED WAS DELETED CONSIDERING IGNORANCE TO BE A REASONABLE C AUSE. IN THE INSTANT CASE ALSO, THE AUDITORS DID NOT POINT OUT ANY VIOLATION OF S. 269 SS OF THE ACT. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THIS IS NOT A FI T CASE IN WHICH PENALTY U/S. 271D CAN BE LEVIED. THE PENALTY SO IMPOSED BY THE ASSESSIN G OFFICER AND SUSTAINED BY THE LEARNED CIT(A) IS HEREBY DELETED. THEREFORE, THE A PPEAL OF THE ASSESSEE IS ALLOWED. 4. SINCE THE FACTS OF THE CASE OF THE ASSESSEE IS SIMI LAR TO THAT OF THE CASE OF SWAPAN DUTTA (SUPRA) AND THE LD. DR COULD NOT POINT OUT AN Y CHANGE IN THE FACTS OR IN LAW, WE ARE INCLINED TO FOLLOW THE DECISION OF THE COORDINA TE BENCH IN THE CASE OF SWAPAN DUTTA, SUPRA AND CANCEL THE PENALTY LEVIED U/S. 271 D OF THE ACT. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.05.2017 . SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24TH MAY, 2017 JD.(SR.P.S.) 3 ITA NO.198/KOL/2015 AVIJIT SAHA AY 2009-10 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI AVIJIT SAHA, C/O S. N. GHOSH & ASS OCIATES, ADVOCATES, SEVEN BROTHERS LODGE, P.O BUROSHIBTALA, P. S. CHI NSURAH, DIST. HOOGHLY, PIN-712 105. 2 RESPONDENT JCIT, RANGE-2, HOOGHLY. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .