Shobha Naveen Agarwal, Nagpur V. JCIT, Berhampur

ITA 23/CTK/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86453 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: D K SHETH

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI P. K. BABNSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 2 3 / CTK /201 4 (ASST. YEAR : 200 9 - 1 0 ) SMT. SOBHA NAVEEN AGARWAL, W/O NAVEEN B. AGARWAL, NO. 301, KUBER REGENCY, CONGRESS NAGAR, NAGPUR , MAHARASHTRA . VS. J CIT, B ERHAMPUR . PAN NO. AIOPA 5264 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.K. SHETH DEPARTMENT BY : SHRI N.K. NEB - D.R. DATE OF HEARING : 03 / 0 2 /2015 . DATE OF PRONOUNCEMENT : 24 / 0 3 /201 5 . O R D E R PER D.T. GARASIA , J .M THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT (A), BERHAMPUR DATED 0 3 /0 7 /201 3 FOR THE A.Y. 2009 - 10 . 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL READS AS UNDER: - 1. FOR THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE PENALTY AS IMPOSED AT RS. 20,00,000/ - U/S. 271D BY THE LEARNED A.O. IS UNCALLED FOR AND UNWARRANTED AND THEREFORE BAD IN LAW. 2 3. SHORT FACTS OF THE CASE ARE AS UNDER: - JCIT HELD THAT THE ASSESSEE RECEIVED RS. 20 LAC . IN CASH FROM ONE SRI SANTOSH KUMAR TAWAR S/O SRI ANOKHILAL TAWAR OF SEWI MAL WA, DIST. HOSHANGABAD (MP) . THE ASSESSEE SUBMITTED THAT THIS AMOUNT WAS RECEIVED AS ADVANCE AGAINST SALE OF FLAT FOR A TOTAL CONSIDERATION OF RS. 35 LAC. , COPY OF THE AGREEMENT WAS SUBMITTED BEFORE THE ITO. THE ASSESSEE RECEIVED THIS RS. 20 LAC. IN FOUR INSTALMENTS ON FOUR DATES AS MENTIONED IN THE PENALTY ORDER . THE JCIT HELD THAT THE ASSESSEE HAS RECEIVED THIS AMOUNT IN VIOLATION OF PROVISIONS OF SEC. 269 SS OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT', FOR SHORT) , THEREFORE HE IMPOSED THE PENALTY OF RS. 20 LAC. 4 . THE MATTER WAS CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A ) HAS SUSTAINED THIS ADDITION . 5. LEARNED AR SUBMITTED BEFORE US THAT THE ASSESSEE HAS RECEIVED RS. 20 LAC IN CASH AS ADVANCE AGAINST SALE OF FLAT FROM SRI SANTOSH KUMAR TAWAR S/O SRI ANOKHILAL TAWAR OF SEWI MALWA, DIST. HOSHANGABAD (MP). ON VERIFICATION OF CONFIRMATION LETTER, COPY OF SALE DEED AND CASH BOOK , THE ASSESSING OFFICER FOUND THAT CASH WAS RECEIVED ON DIFFERENT DATES . AS PER SALE AGREEMENT , THE AMOUNT WAS TO BE RETURNED. THE ASSESSEE HAS TAKEN MONEY OF RS. 20 LAC NOT AS 3 LOAN OR BORROWED AND HE SIMPLY RECEIVED THE MONEY IN ADVANCE TOWARDS THE AGREEMENT . THEREFORE THERE IS NO VIOLATION OF SEC. 269 SS OF THE ACT, HENCE, PENALTY U/S. 271D CANNOT BE IMPOSED. 6. LEARNED DR RELIED UPON THE ORDER OF THE REVENUE AUTHORITIES. 7. WE H AVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS ACCEPTED THIS AMOUNT OTHERWISE BY CHEQUE OR BANK DRAFT. THE ASSESSEE HAS NOT TAKEN THIS AMOUNT AS LOAN OR DEPOSIT, THEREFORE WHEN ASSESSEE HAS NOT TAKEN THE LOAN OR DEPOSIT, THEN HE HAS NOT VIOLATED THE PROVISIONS OF SEC. 269SS OF THE ACT. IN OUR OPINION, PENAL T Y U/S. 271D OF THE ACT CANNOT BE IMPOSED, THEREFO RE WE DELETE THE SAME. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES, 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH AT CUTTACK ON 24 TH MARCH, 2015. SD/ - SD/ - (P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 TH MARCH , 201 5 . VR/ - 4 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD. CIT 4 . THE CIT(A) 5 . THE D.R 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., CUTTACK.