Vilas Dattatray Bhambure, Solapur V. Jt. CIT, Solapur

ITA 2301/PUN/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93759 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VILAS D BHAMBURE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE: SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO. 2301 /PN/201 2 ASSESSMENT YEAR : 20 07 - 08 VILAS DATTATRAY BHAMBURE, PLOT NO. 16/20, SANT GULAB BABA NAGAR, TIWARI WASTI, MAJREWADI, SOLAPUR-413225 VS. JOINT COMMISSIONER OF INCOME TAX, RANGE 1, SOLAPUR (APPELLANT) (RESPONDENT) PAN NO. AATPB1252E ASSESSEE BY: SHRI VILAS D. BHAMBURE REVENUE BY: SHRI ACHAL SHARMA DATE OF HEARING : 13-05-2015 DATE OF PRONOUNCEMENT : 27-05-2015 ORDER PER VIKAS AWASTHY, JM:- THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-III, PUNE DATED 29-0 7-2011 FOR THE ASSESSMENT YEAR 2007-08, WHEREBY THE PENALTY LEVIED U/S. 271E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) HAS BEEN CONFIRMED. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS A CIVIL ENGINEER AND IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. THE ASSESSEE FILED ITS RETURN OF INCOME FOR T HE ASSESSMENT YEAR 2007-08 ON 24-03-2008 DECLARING INCOME OF RS.1,72,84 6/-. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE ASSESSING OFFICER O BSERVED THAT IN THE BALANCE SHEET, THE ASSESSEE HAS SHOWN SECURED LOAN OF 2 RS.8,31,000/- AND UNSECURED LOAN OF RS.13,79,737/-. DURING T HE RELEVANT PERIOD THE ASSESSEE REPAID LOAN OF RS.7,11,700/-. THE ASSE SSING OFFICER CALLED FOR THE DETAILS OF THE LOAN REPAYMENT. THE ASSESSING OFFICER AFTER EXAMINING THE BANK PASS BOOK CONCLUDED THAT THE A SSESSEE HAS REPAID AN AMOUNT OF RS.2,00,000/- IN CASH TO SHRI VINAY KULK ARNI, ONE OF THE CREDITORS. THUS, THE ASSESSEE HAS VIOLATED THE PR OVISIONS OF SECTION 269T OF THE ACT. PENALTY PROCEEDINGS U/S. 271E WERE INITIATED AGAINST THE ASSESSEE. SEVERAL OPPORTUNITIES WERE GRANT ED TO THE ASSESSEE TO REPRESENT HIS CASE. NONE APPEARED ON BEHALF OF THE A SSESSEE. THE JT. COMMISSIONER OF INCOME TAX, SOLAPUR RANGE-I IN EX-PARTE P ROCEEDINGS LEVIED PENALTY OF RS.2,00,000/- U/S. 271E VIDE ORDER DATED 26-08-2010 . AGGRIEVED BY THE PENALTY ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). BEFORE TH E FIRST APPELLATE AUTHORITY, THE ASSESSEE EXPLAINED THE REPAYMENT OF LOAN AMOUNTS AND THE FACT THAT THE AMOUNT OF RS.2,00,000/- ALLE GEDLY WITHDRAWN FROM THE BANK BY ASSESSEE WAS IN FACT WITHDRAW N BY SHRI VINAY KULKARNI WHO WAS ONE OF THE CREDITORS AS WELL AS JOIN T ACCOUNT HOLDER WITH THE ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTIONS OF THE ASSESSEE AND CONFIRMED PENALTY OR DER. NOW, THE ASSESSEE HAS COME IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF THE FIRST APPELLATE AUTHORITY. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT PEN ALTY HAS BEEN WRONGLY LEVIED. THE ASSESSEE HAS NOT PAID THE ALLEGED CA SH AMOUNT OF RS.2,00,000/- IN DISCHARGE OF HIS LIABILITY. THE AMOUNT HAS BEE N WITHDRAWN BY SHRI VINAY KULKARNI JOINT ACCOUNT HOLDER, WHO ALSO HAPPENS TO BE ONE OF THE CREDITORS OF THE ASSESSEE. T HE LD. COUNSEL FOR THE ASSESSEE PRAYED FOR DELETING THE PENALTY. 3 4. ON THE OTHER HAND SHRI ACHAL SHARMA REPRESENTING TH E DEPARTMENT VEHEMENTLY SUPPORTED THE IMPUGNED ORDER. THE LD. DR CONTENDED THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXP LAIN THE REASON FOR MAINTAINING JOINT ACCOUNT WITH THE CREDITOR. THE CASH WIT HDRAWAL OF RS.2,00,000/- FROM THE BANK ACCOUNT IS PART OF TOTAL REPA YMENT OF LOAN OF RS.7,11,700/- DURING THE IMPUGNED ASSESSMENT YEAR. THE LD. DR PRAYED FOR SUSTAINING THE PENALTY AND DISMISSING THE APPE AL OF THE ASSESSEE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW, AS WELL AS THE WRITTEN SUBMISSIONS FILED BY THE LD. COUNSEL FOR THE ASSESSEE. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS REPAID LOAN AMOUNT OF RS.7,11,700/- DURING THE PERIOD RELEVANT TO THE ASSESSMEN T YEAR UNDER CONSIDERATION. THE ONLY DISPUTE IS WITH RESPECT TO REPAY MENT OF RS.2,00,000/- PURPORTEDLY PAID IN CASH. THE CONTENTION OF THE ASSESSEE IS THAT THE AMOUNT HAS BEEN REPAID THROUGH SAVING BANK ACCOUNT. THE ASSESSEE IS MAINTAINING JOINT ACCOUNT WITH SHRI VINAY KULKAR NI FOR THE LAST MORE THAN 10 YEARS AND THE MODE OF OPERATION OF TH E ACCOUNT IS EITHER OR SURVIVOR. THE AMOUNT OF RS.2,00,000/- WAS WITHDR AWN FROM THE BANK ON 11-09-2006 BY SHRI VINAY KULKARNI FOR HIS PER SONAL USE. BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESS EE HAS FILED AN AFFIDAVIT EXECUTED BY SHRI VINAY KULKARNI TO THIS EFFECT. THE ASSESSEE HAS BEEN DEPOSITING THE AMOUNT IN THE SAID BANK ACCOUNT FROM TIME TO TIME. IT IS ALSO AN UNDISPUTED FACT THAT THE ASSESSEE HA S TAKEN LOAN FROM SHRI VINAY KULKARNI AND FOR THE REPAYMENT OF THE LOAN AMOU NT THE ASSESSEE IS TRANSFERRING MONEY IN THE JOINT SAVING BANK ACCOUNT . 6. IN OUR CONSIDERED VIEW THE ASSESSEE HAS BEEN ABLE T O SHOW THAT THE LOAN AMOUNTS WERE REPAID THROUGH BANKING CHANNELS. SO FA R AS THE 4 WITHDRAWAL OF RS.2,00,000/- IN CASH FROM JOINT BANK ACCOUNT IS CONCERNED, THE CONTENTION OF THE ASSESSEE THAT THE AMO UNT HAS BEEN WITHDRAWN BY SHRI VINAY KULKARNI, JOINT ACCOUNT HOLDER OF A SSESSEE REMAINS UN-REBUTTED. IN SUPPORT OF HIS CONTENTIONS TH E ASSESSEE HAS FILED AN AFFIDAVIT EXECUTED BY SHRI VINAY KULKARNI. THE REVEN UE HAS NOT BEEN ABLE TO CONTROVERT THE CLAIM OF THE ASSESSEE. TH E INTENTION OF THE LEGISLATURE TO SECURE REPAYMENT OF LOAN AMOUNT THROUGH P ROPER BANKING CHANNEL IS TO CURB THE FLOW OF UNACCOUNTED MONEY. IN THE PRESENT CASE, THERE IS A COMPLETE DISCLOSURE OF THE LOAN AMOUNT, THE MOD E OF REPAYMENT AND THE CREDITOR. IN OUR VIEW THIS IS NOT A C ASE FOR LEVY OF PENALTY U/S. 271E OF THE ACT. THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 27 TH DAY OF MAY, 2015 AT PUNE. SD/- SD/- (R.K. PANDA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH MAY, 2015 RK/SUJEET COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I II, PUNE 4 THE CIT - IV, PUNE 5 6 THE DR, ITAT, B BE NCH, PUNE. GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, PUNE