Ram Bilas Agarwal , Kolkata V. JCIT, Range - 36, , Kolkata

ITA 2304/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1158 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-03-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 09-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBHAJYOTI ROY
• Assessee Lawyers: N O N E
• Keywords: Corroborative evidences
• Section: 271D

Judgement Text

1 ITA NO.2304/KOL/2018 RAM BILAS AGARWAL, AY 2013-14 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( )BEFORE . , /AND . # . $ , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VAR KEY, JM] I.T.A. NO. 2304/KOL/2018 ASSESSMENT YEAR: 2013-14 RAM BILAAS AGARWAL (PAN: ACUPA4511E) VS. JOINT COMMISSIONER OF INCOME-TAX, RANGE-36, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 04.03.2020 DATE OF PRONOUNCEMENT 29.05.2020 FOR THE APPELLANT N O N E FOR THE RESPONDENT SHRI DHRUBHAJYOTI ROY, JCIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-10, KOLKATA DATED 21.08.2018 FOR AY 2013-14. 2. THE SOLE GROUND INVOLVED IN THIS APPEAL OF ASSES SEE IS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE PENALTY IMPOSED OF RS. 1,55,000/- U/S. 271D OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) 3. NONE APPEARED FOR THE ASSESSEE. HOWEVER, WE TAK E NOTE THAT THE PENALTY HAS BEEN IMPOSED BY THE JCIT U/S. 271D OF THE ACT FOR V IOLATION OF SECTION 269SS OF THE ACT. THE LD. JCIT NOTICED THAT THE ASSESSEE HAD AP PEARED BEFORE HIM AND SUBMITTED THAT THE LOAN HAS BEEN TAKEN FROM HIS SON SHRI SAUR ABH AGARWAL WHO EARNS INCOME FROM TRUCK PLYING AND HAS GIVEN THE MONEY TO THE AS SESSEE BEING HIS FATHER WHO IN TURN USED THE SAME FOR HIS BUSINESS AND HAS SHOWN IT AS LOAN FROM HIS SON. ACCORDING TO LD. JCIT, NO SUPPORTING EVIDENCE COULD BE PRODUCED BY T HE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. THE LD. JCIT FURTHER OBSERVED THAT AFTER GO ING THROUGH THE LEDGER ACCOUNT OF 2 ITA NO.2304/KOL/2018 RAM BILAS AGARWAL, AY 2013-14 SHRI SAURABH AGARWAL IN THE BOOKS OF ACCOUNT OF M/S . EAST INDIA MERCANTILE CO., A PROPRIETORSHIP CONCERN OF THE ASSESSEE THAT ASSESSE E HAD RECEIVED A SUM OF RS.15,000/- ON 10.07.2012 AND ANOTHER SUM OF RS.1,40,000/- ON 3 1.03.2013, BOTH IN CASH TOTALING TO RS.1,55,000/- WHICH IS IN CONTRAVENTION OF SECTION 269SS OF THE ACT AND SINCE THE ASSESSEE FAILED TO OFFER ANY COGENT GROUND OR ANY E XIGENCY TO ACCEPT CASH LOAN FROM HIS SON, HE IMPOSED PENALTY U/S. 271D OF THE ACT FOR VI OLATION OF THE PROVISIONS OF SECTION 269SS OF THE ACT AND ACCORDINGLY, IMPOSED PENALTY O F AN EQUAL AMOUNT OF RS.1,55,000/-. ON APPEAL, THE LD. CIT(A) TAKING NO TE THAT THE ASSESSEE HAD NOT APPEARED BEFORE HIM ON 21.08.2018 AND ALSO THAT ASS ESSEE HAD ONLY SENT AN ADJOURNMENT APPLICATION IN POST, THE LD. CIT(A) OBS ERVED THAT THE APPEAL WAS EARLIER FIXED ON 23.05.2018 AND THAT THE ASSESSEE HAD SPECI FICALLY REQUESTED FOR A DATE IN AUGUST DESPITE THAT ASSESSEE HAS BEEN SEEKING ADJOU RNMENTS WHEN ASSESSEE OUGHT TO HAVE ATTENDED. THEREAFTER HE DECIDED THE APPEAL BY DISMISSING THE SAME BY PASSING A CRYPTIC ORDER WITHOUT EVEN LOOKING INTO THE JUSTIFI CATION/EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO THE ASSESSEE, IT HAD TAKEN RS.1,55,000/- IN CASH FROM HIS SON MR. SAURABH AGARWAL THIS FACT HAS BEEN CORROBORATED BY THE LD. JCIT AFTER GOING THROUGH THE LEDGER ACCOUNT OF ASSESSEES SON SHRI S AURABH AGARWAL HAS OBSERVED THAT FROM THE LEDGER ACCOUNT OF SHRI SUBHAS AGARWAL IN T HE BOOKS OF ACCOUNT OF M/S. EAST INDIA MERCANTILE CO., A PROPRIETORSHIP CONCERN OF T HE ASSESSEE IT IS SEEN THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.15,000/- ON 10.07 .2012 AND ANOTHER SUM OF RS.1,40,000/- ON 31.03.2013 BOTH IN CASH. THE EXPLA NATION OF THE ASSESSEE WAS THAT HIS SON WHO EARNS INCOME FROM TRUCK PLYING HAS GIVEN T HE MONEY FOR SAFE KEEPING WITH HIM AND WHEN THERE WAS AN URGENT NECESSITY TO PAY T HE CREDITORS TO RUN HIS PROPRIETORSHIP BUSINESS, THE ASSESSEE HAD USED THIS MONEY AND REFLECTED IT AS LOAN FROM HIS SON. A FATHER USING THE MONEY OF HIS SON CANNO T BE TERMED AS LOAN GIVEN BY THE SON TO THE FATHER/ASSESSEE. WHEN THE FATHER NEEDS MONEY OR SON NEEDS MONEY, THE MONEY GIVEN BETWEEN THE FAMILY MEMBERS CANNOT BE TERMED A S LOAN OR ADVANCES EVEN THOUGH FOR PURPOSE OF ACCOUNTING IT IS SHOWN AS LOAN. IT IS A SETTLED LAW THAT THE NOMENCLATURE IN THE ACCOUNT BOOKS CANNOT DETERMINE THE NATURE OF TRANSACTION. SINCE THE LD. JCIT HAS NOTED FROM THE LEDGER ACCOUNT OF THE SON SHRI S AURABH AGARWAL THAT THE MONEY HAS 3 ITA NO.2304/KOL/2018 RAM BILAS AGARWAL, AY 2013-14 BEEN GIVEN BY THE SON TO THE FATHER AND THAT HAVE B EEN USED BY THE FATHER FOR TIDING OVER URGENT BUSINESS REQUIREMENT CANNOT BE TERMED AS LOA N/ADVANCE, SO IT CANNOT ATTRACT THE PENALTY U/S. 271D OF THE ACT, THEREFORE, WE DIRECT DELETION OF THE PENALTY AS IMPOSED BY THE LD. JCIT AND CONFIRMED BY THE LD. CIT(A). THERE FORE, APPEAL OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 29TH MAY, 2020 SD/- SD/- (J. SUDHAKAR REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH MAY, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI RAM BILAS AGARWAL, 29, R. N. MUKHE RJEE ROAD, WINDSOR HOUSE, R-19, 2 ND FLOOR, KOLKATA-700 001. 2 RESPONDENT JT. CIT, RANGE-36, KOLKATA. 3 . THE CIT(A)-10, KOLKATA (SENT THROUGH E-MAIL) 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .