Smt. Urvashi Bansal, Delhi V. JCIT, New Delhi

ITA 2475/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6964 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 09-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDER MANI

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE I.C.SUDHIR , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2475/DEL/2015 (ASSESSMENT YEAR: 2006 - 07 ) URVASHI BANSAL, FLAT NO.53, 2 ND FLOOR, PLOT NO.29, SWASTIK KUNJ APARTMENTS, SECTOR - 13, ROHINI, DELHI PAN: ANDPB6523G VS. JCIT, RANGE - 21, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SURESH KUMAR GUPTA, CA REVENUE BY: SH. RAVINDER MANI, SR. DR DATE OF HEARING 09/05/ 2016 DATE OF PRONOUNCEMENT 08 / 07 /2016 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 13, NEW DELHI DATED 25.03.2015 FOR THE ASSESSMENT YEAR 2006 - 07 CONFIRMING THE PENALTY OF RS. 10 LAKHS U/S 271D OF THE INCOME TAX ACT . 2. THE ASSESSEE HAS RAISED THE SOLE GROUND OF APPEAL IS AS UNDER: - 1. THE LD. CIT (A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF PENALTY OF RS 10,00,000/ - PASSED U/S 271D OF THE I T ACT 1961 FOR VIOLATION OF THE PROVISIONS OF SECTION 269 SS OF THE ACT IGNORING THE FACT THAT THE AUTHORITY LEVYING PENALTY HAS FAILED TO ESTABLISH THE VIOLATION OF AFORESAID SECTION 269 SS IN VIEW OF THE PROPOSITION THAT THE ONUS IS ON THE REVENUE TO ESTABLISH THE DEFAULT UNLIKE THE DEEMING FICTION AVAILABLE BY VIRTUE OF EXPLANATIONS IN SECTION 271(1)(C) OF THE ACT WHERE ONUS IS FASTENED ON THE ASSESSEE TO PROVE THE ABSENCE OF DEFAULT. 3. THE ASSESSEE IS AN INDIVIDUAL AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THA T THE ASSESSEE HAS TAKEN CASH LOAN OF RS. 10 LAKHS AND THEREFORE SHOW CAUSE NOTICE U/S 271D OF THE ACT WAS ISSUED. THE ASSESSEE HAS FILED THE EVASION PETITION AGAINST ONE PERSON SHRI PURUSHUTAM RAM N ANI , FROM WHOM SHE HAD TAKEN CASH LOAN OF RS. 10 LAKHS. DU RING THE COURSE OF PENALTY PROCEEDINGS THE ASSESSEE DENIED THAT SHE HAS TAKEN ANY PAGE 2 OF 3 CASH LOAN FROM SUCH PERSON BUT HE HAS TAKEN SIGNATURES OF THE ASSESSEE ON VARIOUS BLANK CHEQUES FORCEFULLY. THE INVESTIGATION OF THE INCOME TAX DEPT HAS FOUND THAT THE ASSESS EE HAS TAKEN LOAN FROM SH. RAM N ANI AND HAS REFUSED TO PAY BACK LOAN. SINCE THE AMOUNT OF LOAN NOT BEEN REPAID BY THE ASSESSEE THE INVESTIGATION WING STATED THAT IT MAY BE EXAMINED WHETHER THE AMOUNT OF RS. 53.60 LAKHS NEEDS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE. ON THE BASIS OF PROMISSORY NOTE ISSUED ON 24.10.2005 SIGNED BY MRS. BANSAL, ASSESSEE IT WAS FOUND THAT OUT OF RS. 53.60 LAKHS THE ASSESSEE HAS TAKEN LOAN OF RS. 10 LAKHS IN CASH. SHE DENIED HAVING TAKEN ANY SUCH LOAN. THE ABOVE AMOUNT OF RS. 10 LAKHS HAVE ALREADY BEEN ADDED IN THE HANDS OF THE LENDER VIDE ORDER DATED 20.12.2011. IN VIEW OF THIS THE LD ASSESSING OFFICER LEVIED THE PENALTY U/S 271D OF THE ACT. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT ( A) WHO IN TURN CONFIRMED THE PENALTY HOLDING THAT THE PROBABILITY IS VERY HIGH THAT THE APPELLANT HAS LOAN IN CASH. HE FURTHER HELD THAT THE DECIS ION OF THE AO IS BASED ON QUERY RAISED BY THE APPELLANT UNDER THE RIGHT TO INFORMATION ACT BY THE ASSESSEE HERSELF. THEREFORE NOW, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE APPELLANT RAISED THE IDENTICAL ARGUMENTS THOSE WHICH WERE RAISED BEFORE THE LOWER AUTHORITIES. HE SUBMITTED THAT EVEN THE CASE FILED BY THE CREDITOR BEFORE THE METROPOLITAN MAGISTRATE WAS DISMISSED IN FAVOUR OF THE ASSESSEE. HE ALSO FURTHER SUBMITTED THAT EVEN THE CRIMINAL CASE WAS FILED AGAINST THE ALLEGED LENDER. 4. LD DR REL IED ON THE ORDERS OF LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAS TAKEN LOAN IN CASH FROM RAM N ANI AND THEREFORE PENALTY IS LEVIABLE U/S 271D OF THE ACT. 5. WE HAVE CAREFULLY PERUSED THE ORDER OF THE LD ASSESSING OFFICER AS WELL AS THE LD CIT ( A) IN CONFIRMING THE PENALTY . THE ASSESSEE HAS SUBMITTED THAT THE RAMANANI CAME FORWARD TO EXTEND FINANCIAL ASSISTANCE FOR HER DAUGHTERS EDUCATION THEREFORE SOME PROMISSORY NOTES WERE FOUND TO BE BEARING THE SIGNATURE OF THE ASSESSEE. HOWEVER, SHE HAS DENIED OF HAVING SIGNED ANY PROMISSORY NOTE. THE LD AO HAS HIMSELF HAS STATED THAT THE SIGNATURES PRIMA FACIE APPEARS TO BE OF THE ASSESSEE BASED ON PATTERN OF WRITING AND FLOW OF WRITING. HE HAS FURTHER STATED THAT THERE IS DIFFERENCE IN SIGNATURE ON THE PROMISSOR Y NOTE AND DESPITE THAT HE DISBELIEVED THAT SHE DID NOT RECEIVE ANY CASH NOTE. IN THE TAX EVASION PETITION FILED BY THE PAGE 3 OF 3 ASSESSEE BEFORE THE LD CIT ( A) ON 06.11.2009 ALSO DID NOT STATE IN PARA NO. 4(A) THAT SHE HAS TAKEN A LOAN OF RS. 10 LAKHS IN CASH FROM SHRI PURUSHUTTOM RAMNANI. SHE HAS MERELY STATED THAT HE POSSESSES A PROMISSORY NOTE OF RS. 10 LAKHS WHICH IS NOT SIGNED BY HER. THOUGH THE PROMISSORY NOTE AT PAGE 34 OF THE PB FILED BY THE AR OF THE APPELLANT SHOWS THAT A PROMISSORY NOTE OF RS.10 LAKHS WAS ISSUED IN FAVOUR OF SHRI PURUSHUTTOM RAMNANI. THE LD CIT ( A) HAS CONFIRMED THE PENALTY HOLDING THAT THE PROBABILITY IS VERY HIGH THAT THE ASSESSEE HAS TAKEN LOAN IN CASH. IN VIEW OF THE ABOVE FACTS WE ARE OF THE VIEW THAT IT IS MERELY A PROBABILITY WHICH HAS BEEN STATED BY THE LOWER AUTHORITIES THAT THE ASSESSEE HAS TAKEN A LOAN OF RS. 10 LAKHS IN CASH FROM THE LENDER. HOWEVER, THERE IS NO CONFIRMATION EITHER FROM THE LENDER OR FROM THE ASSESSEE THAT SUCH LOAN HAS BEEN TRANSACTED. THEREFORE WHEN THE FACT O F LOAN ITSELF IS NOT PROVED THERE CANNOT BE PENALTY ON THAT BASIS HOLDING THAT ASSESSEE HAS OBTAINED LOAN IN CASH OF RS 10 LAKHS. IN VIEW OF THIS WHEN THE ACTUAL FACT OF THE LOAN REMAINS A MERE PROBABILITY AND NOT ESTABLISHED CONCLUSIVELY THE PENALTY ON THAT SUM CANNOT BE LEVIED. THEREFORE, WE REVERSE THE FINDING OF THE LD CIT ( A) AND DELETE THE PENALTY U/S 271D OF THE INCOME TAX ACT OF RS. 10 LAKHS. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 0 8 / 07 /2016. - S D / - - S D / - ( I.C.SUDHIR ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 8 / 07 /2016 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI