The ACIT, Central Circle-2(4), Ahmedabad V. Shri Mahesh Chhotalal Shah, Ahmedabad

ITA 2920/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9882 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Documents seized

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMADABAD BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH , ACCOUNTANT MEMBER ITA NO. 2920/AHD/2016 ASSESSMENT YEAR : 2010-11 ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(4), AHMEDABAD, 3 RD FLOOR, AAYKAR BHAVAN ANNEXE, ASHRAM ROAD, AHMEDABAD - 380009 V S . SHRI MAHESH CHHOTALAL SHAH A-601, SAGAR SAMRAT FLATES, PALDI, AHMEDABAD PAN NO. ACPPS1407G (APPELLANT) .. (RESPONDENT) /BY REVENUE SHRI KAMLESH MAKWANA, SR. D.R. /BY ASSESSEE NONE /DATE OF HEARING 03/12/2018 /DATE OF PRONOUNCEMENT 05/12/2018 O R D E R PER : RAJPAL YADAV, JUDICIAL MEMBER AGGRIEVED WITH THE DELETION OF PENALTY AMOUNTING TO RS.75 LAKHS LEVIED UNDER S.271D OF THE ACT, REVENUE IS IN APPEA L BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LEARNED CIT(A)-12, AHMEDAB AD, DATED 27.08.2016 PASSED FOR A.Y. 2010-11. ITA NO. 2920/AHD/16 A.Y.2010-11 (ACIT VS. SHRI MAHESH C. SHAH) PAGE 2 2. IN RESPONSE TO THE NOTICE OF HEARING, NO ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE, THEREFORE, WITH THE ASSISTANCE OF LEARNED DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY AND PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE. 3. IT EMERGES OUT FROM THE RECORD THAT AO HAS IMPOS ED A PENALTY OF RS.75 LAKHS IN AY 2010-11 UNDER S.271D OF THE INCOME TAX ACT. SIMILARLY IN AY 2011-12, HE HAS IMPOSED PENALTY OF RS.1,01,00,000/- . LEARNED FIRST APPELLATE AUTHORITY HAD DECIDED BOTH THE APPEALS BY WAY OF IM PUGNED COMMON ORDER. HE CONFIRMED THE PENALTY AT RS.81LAKHS IN AY 2011-1 2 BUT DELETED THE PENALTY OF RS.75 LAKHS IN AY 2010-11. WE ARE CONCE RNED WITH DELETION OF PENALTY IN AY 2010-11. THE FINDING OF THE CIT(A) I N THIS CONNECTION IS WORTH TO NOTE. IT READ AS UNDER: 4. THUS, IT HAS ALREADY BEEN HELD BY THE LD. CIT(A ) IN CASE OF THE SHRI DILIP G. PUROHIT THAT AS PER THE SEIZED DOCUMENTS THE AMOUNT S OF CASH AS UNDER HAVE BEEN ADVANCED BY SHRI DILIP PUROHIT AND ACCEPTED BY THE APPELLANT AS LOAN: AS NOTED ON BF-3 PAGE 24 25000/00 29/12/10 11230/00 5/2/11(11 LACS + SMALL AMOUNTS)* 20000/00 5/2/11 16000/00 9/2/11 1464/00 (INTEREST CALCULATION)* 10000/00 18/2/11 81,00,000 TOTAL LOAN IN CASH ACCEPTED BY APPELLANT DURING F.Y. 4.1 THOUGH THE APPELLANT HAS MADE NEITHER ANY APPEA RANCE NOR FILED AN WRITTEN SUBMISSIONS, THE FACTS WITH REGARD TO TRANSACTIONS WITH THE APPELLANT AS ALREADY NOTED BY THE LD. CIT(A) WOULD OBVIOUSLY NEED TO BE TAKEN NOTE OF BY ME WHILE DECIDING THESE APPEALS. IT IS THUS CATEGORICAL THAT THERE IS NO TRANSACTION OF CASH ADVANCE ACCEPTED BY THE APPELLANT DURING F.Y.2009-1 0 RELATABLE TO A.Y.2010-11. ITA NO. 2920/AHD/16 A.Y.2010-11 (ACIT VS. SHRI MAHESH C. SHAH) PAGE 3 THUS, THERE IS NO QUESTION OF LEVY OF PENALTY U/S 2 71D FOR A.Y.2010-1 L. MOREOVER, THE APPELLANT HAS BEEN RIGHT IN THE STATEMENT OF FA CT THAT THE JCIT HAS NOT RECORDED THE EXACT DETAILS AND DATES OF ALLEGED TRA NSACTIONS OF ACCEPTANCE OF CASH DEPOSITS BY THE APPELLANT. THE LD. CIT(A) HAS CLEAR LY HELD, ON THE CONTRARY, THAT NO AMOUNT OF UNACCOUNTED CASH ON ACCOUNT OF ANY CASH A DVANCE TO THE APPELLANT IS SUSTAINABLE IN THE HANDS OF SHRI DILIP G. PUROHIT F OR A.Y 2010-11 AS NO CASH IN FACT HAS BEEN RECORDED IN SEIZED DOCUMENTS AS ADVANCE MA DE TO THE APPELLANT BY DILIP PUROHIT DURING F.Y.2009-10. IN VIEW OF THIS FACTUAL MATRIX, THE PENALTY OF RS.75,00,000/-- FOR A.Y.2010-11 IS FOUND NOT TO BE SUSTAINABLE ON FACTS AND THEREFORE, THE PENALTY FOR A.Y.2010-11 IS CANCELLED . THUS, THE APPELLANT SUCCEEDS FOR A.Y.2010-11 AND GETS RELIEF OF RS.75,00,000/-. 4. SECTION 271D OF THE ACT HAS A DIRECT BEARING ON THE CONTROVERSY, THEREFORE, IT IS WORTH TO TAKE NOTE OF THE SECTION. IT READ AS UNDER: 271D [(1)] IF A PERSON TAKES OR ACCEPTS ANY LOAN OR DEP OSIT [OR SPECIFIED SUM] IN CONTRAVENTION OF THE PROVISIONS OF SECTION 269SS, H E SHALL BE LIABLE TO PAY, BY WAY OF PENALTY, A SUM EQUAL TO THE AMOUNT OF THE LOAN O R DEPOSIT [OR SPECIFIED SUM] SO TAKEN OR ACCEPTED.] [(2) ANY PENALTY IMPOSABLE UNDER SUB-SECTION (1) SH ALL BE IMPOSED BY THE [JOINT] COMMISSIONER.] 5. ON PERUSAL OF THE SECTION WOULD INDICATE THAT PE NALTY UNDER THIS SECTION WOULD BE IMPOSABLE, IF A PERSON ACCEPTS ANY LOAN OR DEPOSIT IN CONTRAVENTION OF SECTION 269SS I.E. IF THESE ARE BE ING TAKEN IN CASH EXCEEDING A PRESCRIBED LIMIT THEN PENALTY WOULD BE IMPOSABLE. A PERUSAL OF THE FINDING OF THE CIT(A) WOULD SHOW THAT NO CASH TRANSACTION H AS TAKEN PLACE IN ACCOUNTING YEAR RELEVANT TO AY 2010-11. THIS IS A CATEGORICAL FINDING OF FACT WHICH HAS NOT BEEN REBUTTED BY THE REVENUE, IF THER E IS NO TRANSACTION OF CASH SHOWING ACCEPTANCE OF LOAN OR DEPOSITS THEN HOW PEN ALTY ITA NO. 2920/AHD/16 A.Y.2010-11 (ACIT VS. SHRI MAHESH C. SHAH) PAGE 4 WOULD BE IMPOSABLE. LEARNED FIRST APPELLATE AUTHOR ITY THEREFORE RIGHTLY DELETED THE PENALTY AND WE DO NOT FIND ANY MERIT IN THIS APPEAL, IT DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 05/12/2 018 SD/- SD/- (AMARJIT SINGH) (RAJPAL YADAV) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD: DATED 05/12/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. !'!#$ % / CONCERNED CIT 4. % - / CIT (A) 5. &'( ))#$ , #$ , ' / DR, ITAT, AHMEDABAD 6. (,- / GUARD FILE. BY ORDER/ , / ! #$ , '