Deepak Goyal, New Delhi V. JCIT, New Delhi

ITA 4421/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6416 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 26-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: ATUL GUPTA CAS
• Keywords: Gift
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-2 : NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NO.4421/DEL/2016 ASSESSMENT YEAR : 2008-09 DEEPAK GOYAL, A-48A, RADHEY SHYAM PARK EXTN., NEW DELHI. PAN: AIBPG3727B VS. JCIT, RANGE-36, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DEEPAK AGGARWAL & SHRI ATUL GUPTA, CAS DEPARTMENT BY : SHRI S.K. JAIN, SR.DR DATE OF HEARING : 26.12.2016 DATE OF PRONOUNCEMENT : 27.12.2016 ORDER PER RAJPAL YADAV, JM: THE PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 30 TH MARCH, 2015 PASSED FOR ASSESSMENT YEAR 2008-09. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT ITA NO.4421/DEL/2016 2 THE CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF R S.81,000/- IMPOSED BY THE AO U/S 271D OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 26 TH SEPTEMBER, 2008. HIS CASE WAS SELECTED FOR SCRUTI NY ASSESSMENT AND DURING THE COURSE OF ASSESSMENT PROC EEDINGS, IT CAME TO THE NOTICE OF THE AO THAT THE ASSESSEE HAS RECEIVED CASH LOAN OF RS.81,000/- FROM MRS. TANU GOYAL. THE LEDGER ACCOU NT OF MRS. TANU GOYAL IN THE BOOKS OF KRISHNA PAPER MART WAS OBTAIN ED DURING THE ASSESSMENT AND PENALTY PROCEEDINGS HAVE BEEN RECOMM ENDED FOR INITIATION U/S 271D OF THE ACT. ULTIMATELY, PENALT Y OF RS.81,000/- WAS IMPOSED BY THE AO (JCIT, RANGE-36, DELHI). ACCORDI NG TO THE LD. AO, THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 269SS AND, THEREFORE, HE DESERVES TO BE VISITED WITH PENALTY. DISSATISFI ED WITH THE AO, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). IT WAS CONTENDED THAT THE ASSESSEE HAS TAKEN A SUM OF RS.81,000/- FROM HIS WI FE ON FOUR DIFFERENT OCCASIONS. THESE WERE NOT LOANS, BUT, ONLY GIFTS AN D NO VIOLATION OF SECTION 269SS COULD BE ALLEGED AGAINST THE ASSESSEE . THE LD. FIRST ITA NO.4421/DEL/2016 3 APPELLATE AUTHORITY HAS REJECTED THIS CONTENTION OF THE ASSESSEE ON THE GROUND THAT LEDGER ACCOUNT OF MRS. TANU GOYAL IN TH E BOOKS OF KRISHNA PAPER MART SHOWED THE CLOSING BALANCE OF RS.1,81,50 0/- AS ON 31 ST MARCH, 2008. THUS, ACCORDING TO THE LD.CIT(A), THE ASSESSEE TOOK THE LOAN, BUT, IN ORDER TO AVOID LEVY OF PENALTY U/S 27 1D, HE TOOK THIS PLEA DURING THE PENALTY PROCEEDINGS. ACCORDINGLY, THE L D.CIT(A) CONCURRED WITH THE AO AND CONFIRMED THE PENALTY. 3. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, I HA VE GONE THROUGH THE RECORD CAREFULLY. THERE IS NO DOUBT THAT IN THE BO OKS A SUM OF RS.1,81,500/- WAS SHOWN IN THE NAME OF MRS. TANU GO YAL. ACCORDINGLY, LD. REVENUE AUTHORITIES HAVE CONSTRUED IT AS LOAN, BUT, THE EXPLANATION OF THE ASSESSEE IS THAT RECORDING A SUM OF RS.81,000/- AS LOAN WAS AN ERROR COMMITTED BY THE ACCOUNTANT. IN FACT, IT WAS A GIF T FROM THE WIFE AND, THEREFORE, NO PENALTY U/S 271D BE IMPOSED UPON HIM. THE LD. REVENUE AUTHORITIES APPRECIATED THE CONTROVERSY STRICTLY AD HERING TO THE ACCOUNTING ENTRIES WITHOUT VISUALIZING THE IMPACT O F THE EXPLANATION GIVEN BY THE ASSESSEE. IT IS TO BE APPRECIATED THA T WHEN MONEY WAS TAKEN ITA NO.4421/DEL/2016 4 FROM THE WIFE AND A PLEA WAS TAKEN THAT IT WAS A GI FT, THEN, DEMONSTRATIVE EVIDENCE EXHIBITING THE RECEIPT OF MONEY AS GIFT OR A LOAN COULD BE QUITE DIFFICULT. THE AO SIMPLY WENT AHEAD WITH THE ACCOU NTING ENTRY. IN OUR OPINION, FOR REJECTING THE CONTENTION OF THE ASSESS EE, HE SHOULD HAVE EXAMINED THE ASSESSEE OR HIS WIFE. THE PLEA HAS NO T BEEN EXAMINED FROM THAT ANGLE ON MERIT. THERE IS NOTHING ON THE RECORD WHICH COULD REBUT HIS PLEA THAT IT WAS NOT AN INADVERTENT MISTA KE AT THE HAND OF THE ACCOUNTANT BY RECORDING IT AS A LOAN. CONSIDERING THIS ASPECT, I ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE PENALTY. 4. IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 27.12.201 6. SD/- [RAJPAL YADAV] JUDICIAL MEMBER DATED, 27 TH DECEMBER, 2016. DK ITA NO.4421/DEL/2016 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.