Shri Bhupendra C. Patel, Anand V. The Joint CIT, Anand Range, Anand

ITA 2793/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3371 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 271D; 271E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) ITA. NOS: 2793 TO 2796/AHD/2017 (ASSESSMENT YEARS: 2010-11 & 2012-13) SHRI BHUPENDRA C. PATEL KRISHNA CHOWK, AT & POST BAKROL-388215, ANAND V/S THE JOINT COMM. OF INCOME TAX, ANAND RANGE, ANAND (APPELLANT) (RESPONDENT) PAN: ANGPP5770P APPELLANT BY : SHRI ASEEM L. THAKKAR, AR RESPONDENT BY : SHRI T. SANKAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 11 -04-201 9 DATE OF PRONOUNCEMENT : 24 -04-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST THE ORDER OF THE LD. CIT(A)-4, VADODARA DATED 28.08.2017 PERTAINING TO A.YS. 2010-11 AND 2012-13. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS O F APPEAL: ITA NOS. 279 3 TO 2796/AHD/2017 . A.YS. 2010-1 1 & 2012-13 2 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING AN EX- PARTE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE APPELLANT HENCE THE SAME BEING ILLEGAL AND BAD IN L AW REQUIRES TO BE CANCELLED. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE JOINT COMM. OF INCOME TAX , ANAND IN PASSING AN EX-PARTE ORDER U/S.271D OF THE I. T. ACT,1961 SAME BEING AGAINST T HE PRINCIPLES OF NATURAL JUSTICE AND LAW REQUIRES TO BE QUASHED. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE PENALTY OF RS.7,25,000/- LEVIED BY THE ASSESSING OF FICER U/S.271D OF THE INCOME TAX ACT, 1961. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEA L. 2. FACTS OF THE CASE ARE THAT THE AO VIDE LETTER NO, A ND/ITO WD.3/45/BCP/L5-16 DATED 17.11.2015 HAS REFERRED THE CASE FOR PENALTY U/S.271D & 271E TOR VIOLATION OF PROVISIONS OF SECT ION 269SS AND 269T OF THE IT ACT. ACCORDINGLY, A SHOW CAUSE NOTICE U/S.274 R. W.S 271D DATED 19.11.2015 WAS ISSUED AND SERVED UPON THE ASSESSEE. HEARING FO R THIS PURPOSE WAS FIXED ON 30.11.2015. IN RESPONSE TO THIS NOTICE NOBODY ATTEN DED. THEREAFTER ANOTHER OPPORTUNITY WAS GIVEN TO THE ASSESSEE ' VIDE SHOW C AUSE NOTICE/S.274 R.W.S.271D DATED 20.01.2016. NONE HAS ATTENDED. AS THE ASSESSEE HAS NOT TURNED UPON THIS DATE, ANOTHER OPPORTUNITY WAS GIVE N VIDE SHOW CAUSE NOTICE U/S.274 R.W.S.271D DATED 15.02.2016 AND SERVED UPON THE ASSESSEE ON 16.02.2016. NONE HAS ATTENDED. NO LETTER OF ADJOURN MENT FILED NOR ANY SUBMISSION FURNISHED. 3. IN THIS CASE, THE ASSESSEE HAS RECEIVED CASH DEPOSI TS AS UNDER: NAME OF THE PERSON DATE ACCEPTED REPAID MODE OF PAYMENT CHHOTABHAI TRIKAMBHAI PATEL 10.05.2009 225000 CASH ITA NOS. 279 3 TO 2796/AHD/2017 . A.YS. 2010-1 1 & 2012-13 3 RAMESH CHOTABHAI 20.07.2009 100000 CASH PATEL - DO - 08.03.2010 50000 CASH ARUN CHOTABHAI PATEL 25.10.2009 50000 CASH - DO - 08.03.2010 50000 CASH SAROJ PARSHOTAM PATEL 15.07.2009 100000 CASH - DO - 20.11.2009 100000 CASH - DO - 06.03.2010 100000 CASH - DO - 08.03.2010 100000 CASH VINUBHAI CHOTABHAI PATEL 10.07.2009 150000 CASH TOTAL 725000 300000 CASH FROM THE ABOVE TABLE IT IS VERY CLEAR THAT THE ASSE SSEE HAS CONTRAVENED THE PROVISIONS OF SECTION 269SS OF THE IT ACT. HOWEVER, THE SECTION 269SS OF THE ACT CLEARLY SHOWS THAT ' NO PERSON SHALL, AFTER THE 30TH DAY OF JUNE, 1984 TAKE OR ACCEPT FORM ANY OTHER PERSON (HEREAFTE R IN THIS SECTION REFERRED TO AS THE DEPOSITOR) ANY LOAN OR DEPOSIT O THERWISE THAN BY AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DRAFT DRAWN I N THE NAME OF THE PERSON WHO HAS MADE THE LOAN OR DEPOSIT [OR BY USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK ACCOUNT] IF-, (D) THE AMOUNT OF THE LOAN OR DEPOSIT OR THE AGGREG ATE OF SUCH LOAN AND DEPOSIT; OR (E) ON THE DATE OF TAKING ACCEPTING SUCH LOAN OR DE POSIT, ANY LOAN OR DEPOSIT TAKEN OR ACCEPTED EARLIER BY SUCH PERSON FR OM THE DEPOSITOR IS ITA NOS. 279 3 TO 2796/AHD/2017 . A.YS. 2010-1 1 & 2012-13 4 REMAINING UNPAID (WHETHER REPAYMENT HAS FALLEN DUE OR NOT), THE AMOUNT OF AGGREGATE AMOUNT REMAINING UNPAID; OR (F) THE AMOUNT OR THE AGGREGATE AMOUNT REFERRED TO IN CLAUSE(A) TOGETHER WITH THE AMOUNT OR THE AGGREGATE AMOUNT REFERRED TO IN CLAUSE(B), IS TWENTY THOUSAND RUPPES OR MORE.' THEREFORE, THE PLA IN READING OF THE SECTION SHOWS THAT IF THE AGGREGATE OF THE AMOUNT T HE ASSESSEE REPAID OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE OR ACCOUN T PAYEE DRAFT[OR BY USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK AC COUNT], THEN HE WOULD BE LIABLE TO PENAL ACTION U/S.271D OF THE ACT. THE SAME IS FOUND IN THE CASE OF THE ASSESSEE. FROM THE FACTS OF THE CASE, IT IS SEEN THAT THE ASS ESSEE IS NOT DISPUTING THE DEPOSITS OF CASH AS MENTIONED ABOVE IN CASH. THEREF ORE THE ASSESSEE HAS VIOLATED THE PROVISION OF SECTION 269SS OF THE IT A CT BY REPAYING LOAN FROM VARIOUS PERSONS AGGREGATING TO RS.7,25,000/- I N CASH WITHOUT ANY REASONABLE CAUSE. THE ASSESSEE HAS NOT COMPLIED WIT H SECTION 269SSS OF THE IT ACT. IN THE LIGHT OF THE ABOVE DISCUSSION AS WELL AS THE FACTS OF THE CASE, IT IS PROVED BEYOND DOUBT THAT THE ASSESSEE H AS REPAID IN CASH THE LOAN AMOUNTING TO RS.7,25,000/- IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SSS OF THE ACT AND THEREFORE IT IS A FIT CASE FOR LEVY OF PENALTY U.S,271D OF THE IT ACT. THE PENALTY LEVIABLE WORKS OUT TO RS.7,25,000/- WHICH IS EQUAL TO 100% AMOUNT ACCEPTED IN CASH. THE REFORE, PENALTY OF RS.7,25,000/- U/S.271D OF THE IT ACT FOR AY 2012-13 IS LEVIED ACCORDINGLY.' 4. THEREAFTER AGAINST THE ORDER OF THE LD. A.O., ASSES SEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) AND MATTER WAS FIXED O N 20.03.2016, 10.07.2017 & 02.08.2017. BUT NONE APPEARED ON BEHALF OF THE ASSE SSEE. AND THEREAFTER ON THE ITA NOS. 279 3 TO 2796/AHD/2017 . A.YS. 2010-1 1 & 2012-13 5 BASIS OF M.P. HIGH COURT JUDGMENT IN THE CASE OF ES TATE OF LATE TUKOJIRAO HOLKAR VS CWT 223 ITR 480 (M.P.) DISMISSED THE APPE AL OF THE ASSESSEE. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. AND AT THE OUTSET, LD. A.R. CITED AN ORDER OF CO-ORDINATE BENC H IN THE MATTER OF GUJARAT THEMIS BIOSYN LTD. VS. JOINT COMMISSIONER OF INCOM E-TAX [2000] 74 ITD 339 (AHD.) WHEREIN IT IS HELD THAT IT IS MANDATORY AND OBLIGATORY FOR COMMISSIONER OF INCOME TAX (APPEALS) TO PASS A SPEA KING ORDER STATING POINTS RAISED IN APPEAL, HIS DECISION THEREON AND REASONS FOR SUCH DECISION. 6. IN THIS CASE, APPELLANT HAS BEEN IN DEFAULT FOR NOT APPEARING BEFORE THE LD. CIT(A) DESPITE OF THE FACT THAT MATTER WAS FIXED TH RICE BY THE LD. CIT(A) BUT APPELLANT DID NOT APPEAR. IN THE INTEREST OF JUSTIC E, WE ARE OF THE CONSIDERED VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO T HE APPELLANT AND SUBJECT TO THE CONDITION THAT APPELLANT SHALL DEPOSIT RS. 10,0 00/- AS A FINE WITH THE REVENUE AND THEREAFTER OWN PRODUCTION OF RECEIPT OF RS. 10,000/-, LD. CIT(A) WILL DECIDE THE MATTERS IN ACCORDANCE WITH LAW AND AFTER GIVEN AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE AL LOWED FOR STATISTICAL PURPOSES IN TERM AND CONDITION MENTIONED THEREIN. ORDER PRONOUNCED IN OPEN COURT ON 24 - 04- 2019 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 24/04/2019