Sri Plaban Kumar Basu, Burdwan V. I.T.O. Ward - 1(1), Burdwan, Burdwan

ITA 314/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4504 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Gift; Reasonable cause
• Section: 271D

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.314/KOL/2019 ( /ASSESSMENT YEAR: 2010-11) SHRI PLABAN KUMAR BASU MONIMART, G. T. ROAD, BURDWAN-713101 VS. ITO, WARD-1(1), BURDWAN ./ ./ PAN/GIR NO. :AEIPB 5027 J (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI SOUMITRA CHOWDHURY, ADVOCATE RESPONDENT BY : SMT. RANU BISWAS, ADDL. CIT / DATE OF HEARING : 05/12/2019 /DATE OF PRONOUNCEMENT : 26/02/2020 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-BURDWAN, IN APPEAL NO. 518/CIT(A)/ASL/JCIT , RAMGE-1/BWN/13-14, WHICH IN TURN ARISES OUT OF PENALTY ORDER PASSED B Y THE ASSESSING OFFICER U/S 271D READ WITH SECTION 269SS OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 15/03/2013. SHRI PLABAN KUMAR BASU ITA NO.314/KOL/2019 ASSESSMENT YEAR:2010-11 2 2. ALTHOUGH IN THIS APPEAL, THE ASSESSEE HAS RAISED A MULTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING, THE SOLITARY GR IEVANCE OF THE ASSESSEE HAS BEEN CONFINED TO THE ISSUE THAT THE ASSESSING OFFICER WA S NOT JUSTIFIED IN LEVYING THE PENALTY U/S 271D READ WITH SECTION 269SS OF THE ACT TO THE TUNE OF RS. 2,00,000/-. 3.WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER DATED 27.11.2019 , PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN I.T.A. NO. 1088/KOL/2018, FO R ASSESSMENT YEAR 2009-10, WHEREBY THE ISSUE OF PENALTY U/S 271D READ WITH SEC TION 269SS OF THE ACT HAS BEEN DISCUSSED AND ADJUDICATED IN FAVOUR OF THE ASS ESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT ISSUE IS SQUARE LY COVERED BY THE ABOVE SAID ORDER OF THE TRIBUNAL, A COPY OF WHICH IS ALSO PLAC ED BEFORE THE BENCH. 3. THE LD. D.R FOR THE REVENUE RELIED UPON THE ORDE RS OF THE AUTHORITIES BELOW. 4. WE SEE NO REASON TO TAKE ANY OTHER VIEW OF THE MATTER THEN THE VIEW SO TAKEN BY THE DIVISION BENCH OF THIS TRIBUNAL IN ASSESSEE S OWN CASE VIDE ORDER DATED 27.11.2019. IN THIS ORDER, THE TRIBUNAL HAS INTER A LIA OBSERVED AS UNDER: 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO R IVAL CONTENTIONS. THE ASSESSEE HAS ADMITTEDLY AVAILED LOANS IN CASH FROM HIS MOTHER AND WIFE, SMT. MALA BASU AND RENUKA INVOLVING SUMS OF 1.20 LAKH AND 1.30 LAKH; RESPECTIVELY. THERE IS FURTHER NO QUARREL THAT THE SAME EXCEED TH E THRESHOLD LIMIT OF 20,000/- U/S 269SS, IN THE RELEVANT PREVIOUS YEAR. THE ASSES SEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THESE TWO SUM(S) WERE IN FAC T GIFTS FROM FAMILY-MEMBERS MISTAKENLY SHOWN AS LOAN BY THE AUDITOR. THE ASSESS ING OFFICER DECLINED THE ALL THESE PLEADINGS IN HIS PENALTY ORDER DATED 30.06.20 14. HE HELD THAT THE ASSESSEES IMPUGNED CASH LOAN TRANSACTIONS EXCEEDIN G RS.20,000/- INDICATED A MOTIVE TO AVOID DEFECTION WITHOUT INVOLVING ANY REA SONABLE CAUSE. HE THUS IMPOSED THE IMPUGNED PENALTY OF 2.50 LAKH U/S. 271D OF THE ACT AFFIRMED IN THE CIT(A)S ORDER UNDER CHALLENGE. 4. LEARNED COUNSEL VEHEMENTLY CONTENDS DURING THE C OURSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AS WELL AS ON FACTS IN IMPOSING THE IMPUGNED U/S 271D PENALTY IN RESPECT OF TWO CASH LO ANS/ GIFTS SUMS IN CASE OF MOTHER AND WIFE; RESPECTIVELY. HIS CASE ACCORDINGLY IS THAT THE CLINCHING FACT OF THE SAID TWO PARTIES TURNING OUT AS FAMILY-MEMBERS ITSELF FORMS A REASONABLE CAUSE FOR NOT LEVYING THE IMPUGNED PENALTY. THE REV ENUE STRONGLY SUBMITS ON ALL SHRI PLABAN KUMAR BASU ITA NO.314/KOL/2019 ASSESSMENT YEAR:2010-11 3 THE LOWER AUTHORITIES ACTION INVOKING THE IMPUGNED PENALTY. WE FIND NO REASON TO SUSTAIN THE PENALTY IN ISSUE. THE FACT REMAINS T HAT THE TWO SUM(S) IN QUESTION OF 1 LAKH AND 1.30 LAKH HAVE COME FROM ASSESSEES MOTH ER AND WIFE; RESPECTIVELY. CASE LAW (2008) 303 ITR 5 (GUJ) COMMI SSIONER OF INCOME TAX VS. NATVARLALPURSHOTTAMDAS PAREKH HOLDS THAT SUCH KIND OF AMOUNT(S); WHICH ARE MERE BOOK ENTRY TRANSACTIONS ON BEHALF OF FAMILYMEM BERS DOES NOT VIOLATE THE PROVISION OF SEC. 269SS AND 269T. HON'BLE MADRAS HI GH COURT IN COMMISSIONER OF INCOME TAX VS. IDHAYAM PUBLICATIONS LTD. (2006) 285 ITR 221 (MAD) ALSO HOLDS THAT SUCH TRANSACTIONS BETWEEN SISTER CONCERN S HAVING COMMON DIRECTORS IN RUNNING ACCOUNT ALSO DOES NOT ATTRACT THE IMPUGNED PENAL PROVISION. WE TAKE INTO ACCOUNT ALL THESE FACTS TO CONCLUDE THAT THE L EARNED LOWER AUTHORITIES HAVE ERRED IN PENALIZING THE ASSESSEE ON ACCOUNT OF CASH LOANS AVAILED FROM HIS MOTHER AND WIFE IN ISSUE. THE PENALTY IN QUESTION S TAND DELETED ACCORDINGLY. 5. WE NOTE THAT IN ASSESSEES CASE THE TRANSACTIONS ARE AMONG FAMILY MEMBERS, THAT IS, ASSESSEE, WIFE AND MOTHER, TO HELP EACH OT HER. THEREFORE, THE PENALTY U/S 271D DOES NOT ATTRACT. HENCE, THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF CO-ORDINATE BENCH IN AS SESSEES OWN CASE (SUPRA) IN I.T.A. NO. 1088/KOL/2019 FORA.Y 2009-10, AND THERE IS NO CHANGE IN FACTS AND LAW AND THE LD. D.R FOR THE REVENUE IS UNABLE TO PR ODUCE ANY MATERIAL TO CONTROVERT THE ABOVE SAID FINDINGS OF THE CO-ORDINA TE BENCH. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH WE ALLOW GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON 26.02.2020 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE:26/02/2020 ( SB, SR.PS ) SHRI PLABAN KUMAR BASU ITA NO.314/KOL/2019 ASSESSMENT YEAR:2010-11 4 COPY OF THE ORDER FORWARDED TO: 1. SHRI PLABAN KUMAR BASU 2. ITO, WARD-1(1), BURDWAN 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATABENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES