Md. Majedhar Rahman, Kolkata V. ITO, Ward - 27(2), Kolkata, Kolkata

ITA 218/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54467 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-03-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D J MEHTA
• Assessee Lawyers: K M ROY
• Keywords: Reasonable cause; Set aside
• Section: 271D; 271E

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . . . . . , ,, , , ,, , . . . . . .. . ! ! ! ! , ' ' ' ' ] [BEFORE HONBLE SHRI B. R. MITTAL, JM & HONBLE SHRI S.V. MEHROTRA, AM] #$ #$ #$ #$ / I.T.A NO. 218 & 220/KOL/2010 %& '() %& '() %& '() %& '()/ // / ASSESSMENT YEARS : 2000-01 & 2001-02 MD. MAJEDHAR RAHMAN -VS.- INCOME TAX OFFICER/WARD-27(2) KOLKATA. KOLKATA. [ +, +, +, +, /APPELLANT ] ]] ] [ ./+, ./+, ./+, ./+,/ // / RESPONDENT ] ]] ] +, / FOR THE APPELLANT : SHRI K. M. ROY ./+, / FOR THE RESPONDENT : SHRI D. J. MEHTA 0 /ORDER . . . . . .. . ! ! ! ! , ' ' ' ' PER S. V. MEHROTRA, A. M. THESE TWO APPEALS HAVE BEEN PREFERRED BY THE ASSES SEE FOR ASSESSMENT YEARS 2000-01 & 2001-02 AGAINST SEPARATE ORDERS OF LD. CIT(A)-XIX, KOLKATA BOTH DATED 09.11.2009. ITA NO. 218/KOL/2010 - PENALTY UNDER SECTION 271D 2. ASSESSING OFFICER NOTICED THAT ASSESSEE TOOK A L OAN OF RS.20,000/- IN CASH DURING THE ASSESSMENT YEAR 2000-01 FROM HIS WIFE MST. REHANA R AHAMAN ON 31.08.1999. IN CONTRAVENTION OF PROVISIONS OF SECTION 269SS OF THE INCOME TAX AC T. HE, THEREFORE, ISSUED SHOW CAUSE NOTICE UNDER SECTION 274/271D OF THE INCOME TAX ACT TO SHO W CAUSE WHY AN ORDER IMPOSING PENALTY SHOULD NOT BE MADE UNDER SECTION 271D OF THE INCOME TAX ACT FOR CONTRAVENTION OF SECTION 269SS OF THE INCOME TAX ACT. THE ASSESSEE IN HIS EX PLANATION POINTED OUT THAT THE AMOUNT WAS TAKEN TO MAKE URGENT PAYMENT TOWARDS CONSTRUCTION O F HOUSE AT BC-248, SECTOR-I, SALT LAKE, KOLKATA. IT WAS POINTED OUT THAT ASSESSEE HAD SPENT MORE THAN RS.6,35,000/- DURING THE YEAR FOR HOUSE CONSTRUCTION AND FUNDS WERE MET FROM SAVINGS BANK ACCOUNT, SAVINGS FROM SALARY RECEIVED AND A SMALL AMOUNT OF RS.20,000/- FROM HIS WIFE. TH E SUM RECEIVED FROM HIS WIFE WAS TEMPORARY IN NATURE AS IT WAS FULLY REPAID ON 05.04.2000 IN C ASH DURING THE ASSESSMENT YEAR 2000-01. ITA NO. 218 & 220/KOL/2010 2 ASSESSING OFFICER, HOWEVER, LEVIED PENALTY OF RS.20 ,000/-, INER ALIA, OBSERVING THAT ASSESSEE HAD NOT STATED CLEARLY AS TO WHAT PREVENTED HIM TO TAKE LOAN THROUGH CROSSED ACCOUNT PAYEE CHEQUE OR CROSSED ACCOUNT PAYEE BANK DRAFT. HE POINTED OUT TH AT BOTH HUSBAND AND WIFE I.E. BORROWER AND LENDER ARE STAYING IN A CITY LIKE KOLKATA WHERE BAN KING FACILITY IS ADEQUATELY AVAILABLE. HE FURTHER POINTED OUT THAT THERE WAS NO GENUINENESS OF THIS T RANSACTION. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THE ASSESSEES PLEA THAT THE AMOUNT WAS T AKEN TO MAKE URGENT PAYMENTS TOWARDS CONSTRUCTION OF HOUSE AT BC-248, SECTOR-I, KOLKATA HAS NOT BEEN FOUND TO BE INCORRECT. THE ASSESSEES SUBMISSIONS THAT HE HAD SPENT SUBSTANTIA L AMOUNT OF RS.6,35,000/- FROM HIS SAVINGS BANK ACCOUNT AND SAVINGS FROM SALARY HAVE ALSO NOT BEEN FOUND TO BE INCORRECT. IT IS NOT VERY UNCOMMON THAT IN COURSE OF CONSTRUCTION ACTIVITIES URGENT CASH PAYMENTS ARE REQUIRED TO BE MADE. THEREFORE, IT COULD NOT BE INFERRED THAT JUST FOR R S.20,000/- HE WOULD DELIBERATELY DEFY THE PROVISIONS OF LAW AND, THEREFORE, THE PLEA TO MEET URGENT REQUIREMENTS OF PAYMENTS FOR CONSTRUCTION PURPOSES COULD NOT BE HELD TO BE IMPRO BABLE PARTICULARLY WHEN THERE IS NO EVIDENCE TO CONTROVERT THE SAME. IN THE PRESENT CASE, KEEPING I N VIEW THE FACT THAT AMOUNT WAS TAKEN FROM HIS WIFE AS ACCOMMODATION FOR TEMPORARY PURPOSES IN ORD ER TO MEET THE URGENT PAYMENT REQUIREMENT FOR CONSTRUCTION, WE ARE OF THE OPINION THAT ASSESS EE COULD NOT BE SADDLED WITH PENALTY AS THERE WAS REASONABLE CAUSE FOR ACCEPTING THE LOAN IN CASH. WE , THEREFORE, SET ASIDE THE ORDER OF LD. CIT(A) AND ALLOW THE APPEAL FILED BY THE ASSESSEE ITA NO.220/KOL/2010 - PENALTY UNDER SECTION 271E 4. THE ASSESSEE HAD REPAID SUM OF RS.20,000/- ON 05 .04.2000 TAKEN IN CASH ON 31.08.1999 AS LOAN FROM HIS WIFE MST. REHANA RAHAMAN. ASSESSING O FFICERS FINDING THAT THE AMOUNT HAD BEEN REPAID IN CASH IN CONTRAVENTION OF THE PROVISIONS O F SECTION 269T OF THE ACT, LEVIED PENALTY UNDER SECTION 271E OF THE INCOME TAX ACT. ASSESSEE SUBMIT TED THAT LOAN OF RS.20,000/- WAS TAKEN IN CASH FROM HIS WIFE MST. REHANA RAHAMAN ON 31.08.199 9 IN ORDER TO MAKE URGENT PAYMENTS TOWARDS CONSTRUCTION OF HOUSE AT BC-248, SECTOR-I, SALT LAKE, KOLKATA, INTER ALIA, HELD THAT IT WAS A TEMPORARY LOAN. WE HAVE DELETED THE PENALTY LEVIE D UNDER SECTION 271D OF THE ACT FOR ACCEPTING THE LOAN IN CASH OF RS.20,000/- FOR THE REASONS STA TED IN ITA NO.218/KOL/2010, INTER ALIA, OBSERVING THAT THE AMOUNT WAS TAKEN FROM HIS WIFE A S A TEMPORARY ACCOMMODATION IN ORDER TO ITA NO. 218 & 220/KOL/2010 3 MEET URGENT REQUIREMENT FOR CONSTRUCTION. HOWEVER, ASSESSEE HAS NOT FURNISHED ANY EXPLANATION FOR RETURNING THE LOAN IN CASH. DEFAULT UNDER SECTI ON 269T IS DISTINCT FROM DEFAULT UNDER SECTION 269SS. WE, THEREFORE, CONFIRM THE ORDER OF LD. CIT( A) ON THIS COUNT AND DISMISS THE ASSESSEES APPEAL. 5. IN THE RESULT, ASSESSEES APPEAL VIDE ITA NO.218 /KOL/2010 IS ALLOWED WHEREAS HIS APPEAL VIDE ITA NO.220/KOL/2010 IS DISMISSED. 0 0 0 0 '1 '1 '1 '1 2 1% 3 4 2 1% 3 4 2 1% 3 4 2 1% 3 4 5' 5' 5' 5' ORDER PRONOUNCED IN THE OPEN COURT ON 10. 08. 2011. SD/- SD/- [ . . . . . . . . , ,, , ] [ . . . . . .. . ! ! ! ! , ' ' ' ' ] [ B. R. MITTAL ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (5' 5' 5' 5') )) ) DATED : 10 TH AUGUST, 2011. 0 8 .9 :9(/ COPY OF THE ORDER FORWARDED TO: 1. +, /APPELLANT : MD. MAJEDHAR RAHMAN, BC-248, SECTOR- I, SALT LAKE, KOLKATA-700 064 . 2 ./+, / RESPONDENT : INCOME TAX OFFICER, WARD-27(2), 169 , A.J.C. BOSE ROAD, KOLKATA-700 014 . 3. 0% / CIT, 4. 0% ()/ CIT(A), KOLKATA. 5. '3 .%/ DR, KOLKATA BENCHES, KOLKATA [/9 ./ TRUE COPY] 0%1/ BY ORDER, #A /ASSTT REGISTRAR [KKC 'BC %DA E' /SR.PS]