SHRI SATYANARAYAN LADDHA, Indore V. THE ACIT 2(1), Indore

ITA 383/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5640 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: C P RAWKA
• Keywords: Opportunity of being heard
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 383/IND/2015 A.Y. : 2009-10 SHRI SATYANARAYAN LADDHA ACIT, 2(1), INDORE INDORE. VS APPELLANT RESPONDENT PAN NO. ABEPL9192R APPELLANTS BY : SHRI C.P.RAWKA, CA RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 30.01.2015 FOR THE ASSE SSMENT YEAR 2009-10. DATE OF HEARING : 29. 0 3 .2016 DATE OF PRONOUNCEMENT : 29.03 .2016 SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 2 2 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND OF APPEA L :- THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE PENALTY LEVIED U/S 271D OF THE INCOME-TAX ACT, 1961., AT RS. 1,00,000/-. THE ACTION OF THE LD. CIT(A) IS TOTALLY WRONG, ARBITRARY AND ILLEGAL ON THE FACTS OF THE CASE. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE H AS RECEIVED UNSECURED LOANS OF RS. 3,50,000/- AND RS. 1,50,000/- RESPECTIVELY FROM SHRI ANKIT JAIN, BHILWA RA AND SMT. MADHU CHAPLOT. OUT OF SUCH LOANS, IT WAS NOTICE D BY AO THAT RS. 50,000/- EACH WAS NOT RECEIVED FROM THESE T WO DEPOSITORS THROUGH ACCOUNT PAYEE CHEQUE OR BANK DRA FT. THE AO EVEN VERIFIED THE BANK STATEMENTS OF TWO DEPOSITO RS AND COULD NOT FIND ANY TRANSFER OF RS. 50,000/- TO ASSE SSEE THROUGH CROSS CHEQUE OR BANK DRAFTS. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) CONFIRMED THE PENALTY OF RS. 1,00,000/- LEVIED BY J CIT IN BOTH SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 3 3 THE CASES OF SHRI ANKIT JAIN AND SMT. MADHU CHAPLOT @ RS. 50,000/- EACH. 5. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED THE WRIT TEN SUBMISSION, WHICH READS AS UNDER :- THE LEARNED ASSESSING OFFICER HAD REFERRED THE CAS E TO THE JOINT COMMISSIONER OF INCOME TAX IN CONNECTION OF PENALTY U/S 271 D. THE LEARNED JCIT HAS RELIED AND REPRODUCED PART OF ASSESSMENT ORDER IN WHICH THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HA S CONTRAVENED WITH THE PROVISION OF SECTION 269SS IN RESPECT OF LOAN FROM SHRI ANKIT JAIN AND SMT. MADHU CHAPLOT. FOR CLARITY OF ISSUE, THE OBSERVATION MADE BY THE LEARNED ASSESSING OFFICER IN ASSESSMENT ORDER NEEDS TO BE EXAMINED BY YOUR GOOD OFFICE IN THE CON TEXT OF LEGAL PROVISIONS CONTAINED IN SECTION 269SS. IN THE CASE OF CREDIT FROM SHRI ANKIT JAIN, THE OBSERVATIO N OF LEARNED ASSESSING OFFICER IS MISCONCEIVED. THE AMOU NT OF RS. 50,000 WAS RECEIVED BY THE ASSESSEE FROM THE LENDER BY AN ACCOUNT PAYEE BANK DRAFT, WHICH WAS SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 4 4 DEPOSITED BY THE ASSESSEE IN SINGLE PAY-IN-SLIP OF RS. 4,50,000 BEING THE AGGREGATE OF DRAFT IN QUESTION A ND ANOTHER CHEQUE OF RS. 4,00,000. THE CASE OF ASSESSI NG OFFICER IS BASED ON THE ASPECT THAT THE AMOUNT OF R S. 50,000 WAS NOT SEEN DEBITED IN THE BANK ACCOUNT OF LENDER SHRI ANKIT JAIN. THIS OBSERVATION CANNOT BE THE BASIS FOR CHARGING THE ASSESSEE GUILTY. IT IS NOT NECESSARY THAT THE FUND SHOULD FLOW FROM THE BANK ACCOUNT FOR PURCHASING A BANK DRAFT. IT CAN NEVER B E AN OFFENCE IF THE LENDER GETS THE DRAFT PREPARED OUT O F CASH AVAILABLE IN HIS BOOKS. IT IS NOTEWORTHY THAT ASSES SEE'S BOOKS OF ACCOUNTS ARE DULY AUDITED BY A CHARTERED ACCOUNTANT U/S 44AB AND THE AUDITOR HAS DULY CERTIF IED THAT THERE WAS NO VIOLATION OF SECTION 269SS. IN TH E LIGHT OF THE ABOVE DISCUSSION IT IS ABUNDANTLY CLEAR THAT THE LEARNED. ASSESSING OFFICER HAS INITIATED ACTION U/S 271 D UNDER THE MISCONCEIVED NOTION AND MISDIRECTED APPRECIATION OF FACTS. ACCORDINGLY THE JOINT COMMISSIONER OF INCOME TAX ERRED IN RELYING THE OBSERVATION OF ASSESSING OFFICER WITHOUT GOING INTO THE SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 5 5 MERITS OF FACTS OF THE CASE. SINCE THERE IS NO VIOL ATION OF SECTION 269SS, THERE WAS NO CASE FOR PENALTY U/S 27 1D. AS REGARDS CREDIT IN THE NAME OF SMT. MADHU CHAPLOT , THE OBSERVATION OF LD ASSESSING OFFICER IS FACTUALL Y INCORRECT. THE PAYMENT OF RS. 50,000/- WAS RECEIVED BY THE ASSESSEE FROM THE ABOVE PARTY BY AN ACCOUNT PAY EE BANK DRAFT, WHICH IS VERIFIABLE FROM THE ASSESSEE'S BANK ACCOUNT. THE AMOUNT HAS BEEN DULY CREDITED IN THE ASSESSEE'S BANK ACCOUNT BY WAY OF CLEARING. HER E AGAIN THE ASSESSING OFFICER'S OBSERVATION ARE BASED ON THE FACTOR THAT THE AMOUNT HAS NOT BEEN DEBITED TO BANK ACCOUNT OF SMT. MADHU CHAPLOT. THIS ASPECT SHOWS MISCONSTRUED NOTION OF LEARNED ASSESSING OFFICER. I T IS NOT NECESSARY TO GET THE DRAFT PREPARED BY DEBIT TO THE BANK ACCOUNT. IT CANNOT BE AN OFFENCE IF A LENDER G ETS A BANK DRAFT PURCHASED FROM OUT OF HER CASH IN HAND. MOREOVER, IT IS IMMATERIAL FOR THE ASSESSEE AS TO H OW THE LENDER GOT THE DRAFT PREPARED. THE ASSESSEE'S CONCERN IS LIMITED TO SEE THAT HE RECEIVES ANY LOAN BY WAY OF AN ACCOUNT PAYEE CHEQUE OR A DRAFT. THE SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 6 6 ASSESSEE HAS TAKEN CARE OF THIS ASPECT VERY DILIGEN TLY. THE ISSUE WAS SUBJECT MATTER OF AUDIT U/S 44AB WHEREIN THE AUDITOR HAS DULY CERTIFIED THAT THERE W AS NO VIOLATION OF SECTION 269SS. IN VIEW OF ABOVE IT MAY KINDLY BE APPRECIATED THAT THE PENALTY HAS BEEN IMPOSED ON THE BASIS OF MISCONCEIV ED AND MISDIRECTED NOTION OF ASSESSING OFFICER ON THE QUESTION OF FACTS. IT IS THEREFORE REQUESTED THAT THE PENALTY MAY KIND LY BE DELETED. 6. THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THIS MATTER REQUIRES REEXAMIN ATION. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY , WE SET ASIDE THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH THE D IRECTION THAT HE SHALL EXAMINE THE MATTER AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SHRI SATYANARAYAN LADDHA, INDORE VS. ACIT, 2(1), IN DORE I.T.A.NO. 383/IND/2015 A.Y. 2009-10 7 7 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH MARCH, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 29 TH MARCH, 2016. CPU*