IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO. A.Y. APPELLANT RESPONDENT 510/HYD/2006 2002-2003 ITO, WARD 11(2), HYDERABAD M/S. LAKSHMI SRINIVASA FINANCE CORPORATION, SECUNDERABAD PAN AABFL-3306- R-L-311 511/HYD/2006 2003-2004 512/HYD/2006 2003-2004 FOR REVENUE MR. SOLGY JOSE T. KOTTARAM FOR ASSESSEE MR. S. RAMA RAO DATE OF HEARING 19.05.2014 DATE OF PRONOUNCEMENT 16.07.2014 ORDER PER BENCH. THESE THREE APPEALS ARE BY THE REVENUE AGAINST THE SEPARATE ORDERS OF THE CIT(A)-IV, HYDERABAD DAT ED 23.01.2006 FOR ASSESSMENT YEARS 2002-2003, 2003-200 4 AND 2004-2005. 2. ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271D IN ALL THE YEARS ON THE REASON THAT ASSESSEE H AS RECEIVED CASH DEPOSITS OF MORE THAN RS.10,000/- WHEREAS, LD. CIT DELETED THE SAME. 3. BRIEFLY STATED, ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON BUSINESS OF OBTAINING DEPOSITS AND PROV IDING LOANS. IT PAID INTEREST AT 1.75% ON DEPOSITS OBTAINED BY I T AND COLLECTS INTEREST AT 4% ON THE ADVANCES MADE BY IT. THERE WA S SURVEY OPERATION AT THE PREMISES OF THE ASSESSEE ON 05.12. 2003 AND VARIOUS BOOKS OF ACCOUNTS AND DOCUMENTS WERE IMPOUN DED. 2 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. THERE ARE CERTAIN QUANTUM ADDITIONS MADE CONSEQUENT TO THE SURVEY WHERE THE ACTUAL RECEIPT OF INTEREST AT 4% W AS BROUGHT TO TAX ALONG WITH AMOUNTS RECEIVED AS DEPOSITS AS U NEXPLAINED CASH CREDITS IN THE BOOKS OF ACCOUNTS. A.O. ALSO IN ITIATED PROCEEDINGS FOR LEVY OF PENALTY UNDER SECTION 271D FOR VIOLATION OF PROVISIONS OF SECTION 269SS IN ACCEPTING DEPOSIT S FOR MORE THAN RS.10,000/- IN THE BOOKS OF ACCOUNTS. A.O. LEV IED PENALTY EQUIVALENT TO THE AMOUNTS RECEIVED IN RESPECTIVE YE ARS UNDER SECTION 271D. 4. IT WAS THE CONTENTION OF THE ASSESSEE THAT THEY HAVE NOT RECEIVED ANY DEPOSITS OF MORE THAN RS.10,0 00/- IN CASH AND THE REGISTERS MAINTAINED AS OSFC WAS ONLY FOR THE PURPOSE OF INTERNAL UTILISATION WHERE MONIES ARE RE CEIVED BY WAY OF VARIOUS DEPOSITS THROUGH AGENTS AND THE DEPO SITS RECEIVED BY AGENTS WERE IN TURN, RECEIVED BY THE AS SESSEE AND RELIED ON THE BOOKS OF ACCOUNTS IMPOUNDED DURING TH E SURVEY ITSELF. THIS CONTENTION WAS NOT ACCEPTED. LD. CIT(A ) EXTRACTING THE DETAILED SUBMISSIONS ON VARIOUS DEPOSITS SHOWN IN HIS ORDER AND SUBMISSIONS OF THE ASSESSEE HAD SUMMARIZE D THEM AS UNDER : A. EACH DEPOSIT IS FOR SUMS LESS THAN RS.10,000/- AND DO NOT ATTRACT THE PROVISIONS OF SEC.269SS. B. THE AGENTS COLLECTED SUCH DEPOSITS OF RS.10,000/ - OR LESS AND PAID TO THE ACCOUNT OF THE FIRM. C. THE DEPOSIT REGISTER IS MAINTAINED WHICH WAS FOU ND DURING THE COURSE OF SURVEY BY THE A.O. AND THE SAM E WAS IMPOUNDED AND EVEN ACCORDING TO THE DEPOSITS REGISTER, THE AMOUNT COLLECTED IS EITHER RS.10,000/ - OR LESS. D. THE CONCERN OSFC IS NOT A SEPARATE ENTITY AND ALL THE TRANSACTIONS CONCERNING OSFC ARE INCLUDED AS TH E TRANSACTIONS OF THE APPELLANT WHILE FILING THE REVI SED 3 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. RETURN OF INCOME AND THIS PROPOSITION IS ACCEPTED B Y THE A.O. AT THE TIME OF COMPLETING THE ASSESSMENT PROCEEDINGS. 4.1. THE LD. CIT(A) REMANDED THE MATTER TO THE A.O . AND AFTER RECEIVING THE REPORT IN WHICH A.O. DID NO T CONTROVERT THE CONTENTION OF THE ASSESSEE WITH EVIDENCE THAT E ACH OF THE DEPOSIT WAS FOR A SUM OF RS.10,000/- OR LESS, HE DE LETED THE PENALTY BY STATING AS UNDER : 11. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE LEARNED AR AND PERUSED THE RECORDS IN THE LIGHT OF THE ORDER PASSED BY THE ADDL. CIT. I H AVE ALSO CONSIDERED THE APPEALS FILED BY THE APPELLANT FIRM AGAINST THE ORDERS OF ASSESSMENT U/S 143(3) FO R THE ASSESSMENT YEARS 2000-2001, 2001-2002 AND 2002-2003 WHICH WERE SEPARATELY CONSIDERED BY MY ORDERS IN ITA.NOS. 0101/ACIT(OSD),R-11/HYD/CIT(A)- VI/2005-06, DATED 29.12.2005 AND ITA NO.0102 & 0103 /ACIT(OSD), R-11/ HYD/CIT(A)-VI/2005- 06,DATED:29.12.2005. WHILE CONSIDERING THE APPEAL I T IS NOTICED THAT THE DEPOSITS WERE RECEIVED IN AMOUN TS OF RS.10,000/- OR LESS THROUGH THE AGENTS. FROM THE EVIDENCE SUBMITTED BY WAY OF AFFIDAVITS OF THE AGEN TS, THE DEPOSITS ARE NOT MORE THAN RS.10,000/ EACH. THEREFORE, ON THAT ACCOUNT ALONE, I AM OF THE VIEW THAT THE PROVISIONS OF SEC.269SS ARE NOT APPLICABLE. FURTHER, IN SO FAR AS THE TRANSACTIONS BETWEEN THE APPELLANT AND THE OSFC ARE CONCERNED, THE APPELLANT FILED REVISED RETURN OF INCOME FOR THE ASSESSMENT YEARS 2000-2001, 2001-2002, 2002-2003 AND 2003- 2004 INCLUDING THE TRANSACTIONS CARRIED OUT IN THE NAME OF OSFC AND A NOTE IN THIS REGARD WAS SUBMITTED BY THE APPELLANT AT THE TIME OF FILING THE REVISED RETURN. THE EXTRACT OF SUCH NOTE IS REPRODU CED HEREUNDER : EXTRACT OF LETTER FILED WITH REVISED RETURN OF INCOME DATED 20-08-2005 FOR THE ASSESSMENT YEARS 2002-2003 'KIND REFERENCE IN INVITED TO THE NOTICE U/S 142(1) DATED 6-8-2004 REQUIRING US TO FILE THE RETU RN 4 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND PRODUCE INFORMATION AS CONTAINED IN THE ANNEXURE TO THE NOTICE U/S 142(1) OF THE I.T . ACT. THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER CONDUCTED SURVEY U/S 133A OF THE I.T. ACT O N 5-12-2003 AND LATER EXAMINED THE PARTNERS ON OATH. THE ASSESSING OFFICER VIDE ORDER U/S 133A(3)(I) DAT ED 5-12-2003 IMPOUNDED THE BOOKS OF ACCOUNT AS PER THE LIST ANNEXED TO THE SAID ORDER. LATER BY ISSUIN G SUMMONS THE ASSESSING OFFICER IMPOUNDED BOOKS OF ACCOUNT PRODUCED VIDE ORDER U/S 131(1) DATED 30-1- 2004 BY THE INCOME TAX OFFICER WARD-11(2) SECUNDERABAD. THE ASSESSEE LATER ANALYSED THE CIRCUMSTANCES WITH REFERENCE TO THE ENTRIES MADE IN THE BOOKS OF ACCOUNT. THE ASSESSEE FOUND THAT THE ENTRIES WERE NOT PROPERLY MADE IN THE BOOKS OF ACCOUNT AND THEREFORE THE ASSESSEE SUBMITS THE FOLLOWING DETAIL ED EXPLANATIONS. THE ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON BUSINESS IN FINANCING. DURING THE COURSE OF BUSINES S ACTIVITY OF THE FIRM IT ADVANCES AMOUNT AND ACCEPTS DEPOSITS FROM VARIOUS PARTIES/DEPOSITORS. IT IS SUBMITTED THAT : A) THE AMOUNTS WERE ADVANCE ON INTEREST @4% PER MONTH. THE DEPOSITS WERE ACCEPTED AND THE INTEREST PAID ON SUCH DEPOSITS VARIED BETWEEN 1.75% AND 2% PER MONTH. THE DEPOSITS WERE ACCEPTED THROUGH VARIOUS AGENTS AND THE AMOUNTS OF INTEREST WAS ALSO PAID TO THE DEPOSITORS THROUGH THE RESPECTIVE AGENTS. B) THE PARTNERS OF THE FIRM ALSO COLLECTED DEPOSITS FROM VARIOUS PARTIES AND DEPOSITED THE AMOUNT WITH THE FIRM. SUCH DEPOSITORS RECEIVED INTEREST THROUGH THE RESPECTIVE PARTNER OF THE FIRM. C) SOME OF THE LOANS ADVANCED BECAME BAD AND IN RESPECT OF SUCH LOANS INTEREST COULD NOT BE COLLECTED. D) SOME OF THE AMOUNTS ADVANCED BECAME BAD 5 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. AND IRRECOVERABLE. INSTEAD RECORDING THE TRANSACTIONS BY SHOWING THE RECEIPT OF INTEREST @ 4% PER MONTH IN RESPECT OF THE REALIZABLE LOANS AND CLAIMING BAD DEBTS IN RESPECT OF AMOUNTS WHICH HAVE ACTUALLY BECOME BAD THE FOLLOWING ENTRIES WERE MADE : A) THE INTEREST RECEIVED IS ADMITTED AT 2.5% ON ALL THE LOANS ADVANCED IRRESPECTIVE OF WHETHER THE DEBT IS GOOD OR BAD AND WHETHER THE AMOUNT IS RECOVERABLE OR NOT IGNORING THE INSTRUCTIONS OF THE RBI. THE DIFFERENCE BETWEEN THE INTEREST RECEIVED AT 4% AND RECORDED AT 2.5% IS INTRODUCED IN THE BOOKS OF ACCOUNT AGAIN - (I) BY WAY OF CASH DEPOSITS.(II) BY WAY OF INTEREST RECEIVED FROM THE DEBTORS WHICH BECAME BAD AND (III) CASH RECEIVED TOWARDS THE PRINCIPAL AMOUNT FROM THE DEBTORS WHICH HAVE BECOME BAD. THE CASH DEPOSITS INTRODUCED WITH THE AMOUNT OF DIFFERENCE BETWEEN 4% AND 2.5% WERE ALSO PAID INTEREST AND SUCH INTEREST PAYMENT WAS ALSO BROUGHT BACK IN THE SAME MANNER INTO THE BOOKS OF ACCOUNT. B) THE ASSESSEE SUBMITS THAT THE BOOKS WERE WRITTEN BY AN UNQUALIFIED ACCOUNTANT AND EVEN THE TAX ADVISOR WHO DEALT WITH THE FINAL ACCOUNTS WAS ALSO NOT A QUALIFIED CHARTERED ACCOUNTANT. BY AND LARGE THE INCOME WAS TALLYING WITH THE INCOME DERIVED BY THE FIRM AND THEREFORE THERE WAS NO DOUBT FOR THE PARTNERS WHO SIGNED THE ACCOUNTS WITHOUT VERIFICATION. WHEN THE PARTNERS HAVE ANALYSED AND VERIFIED THE BOOKS THE ABOVE MENTIONED OMISSIONS/COMMISSIONS WERE NOTICED IN THE BOOKS OF ACCOUNTS. THE ASSESSEE THEREFORE CORRECTED THE FOLLOWING MISTAKES OCCURRED IN THE BOOKS OF ACCOUNT . A) THE INTEREST RECEIVED IS TAKEN AT 4% AS AGAINST 2.5% THUS ENHANCING THE INTEREST RECEIVED. B) THE INTEREST RECEIPT IS CALCULATED ONLY IN RESPECT OF RECOVERABLE DEBTS AND NOT AGAINST BAD DEBTS AS PER RBI GUIDELINES. C) THE DIFFERENCE OF INTEREST CREDITED TO THE CASH DEPOSITS ACCOUNT IS REDUCED FROM THE 6 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. CDS AND ADJUSTED BY DRAWING THE REVISED PROFIT AND LOSS ACCOUNT. D) THE INTEREST DEBITED IN RESPECT OF SUCH CDS WAS WITHDRAWN FROM THE PROFIT AND LOSS ACCOUNT. E) THE DEBTS WHICH HAVE ACTUALLY BECOME BAD BUT SHOWN AS RECOVERABLE ARE TREATED AS BAD DEBTS. F) THE INTEREST IN RESPECT OF SUCH BAD DEBTS WHICH WAS SHOWN AS COLLECTED OR COLLECTIBLE IS ALSO REDUCED FROM THE INTEREST CREDITED. G) APPROPRIATE ADJUSTMENTS TO CORRECT THE CONSEQUENTIAL MISTAKES WERE MADE. UPTO THE PERIOD ENDED 31-3-2001, THE ASSESSEE FIRM WAS ABLE TO RUN THE FINANCE BUSINESS WITHOUT ANY LEGAL PROBLEM. HOWEVER ON ACCOUNT OF STRICT APPLICATION OF THE GUIDELINES BY RBI, THE FI RM HAD TO MAKE AMENDMENTS TO THE BOOKS OF ACCOUNTS. THE ASSESSEE UNDERSTANDS THAT THE RESTRICTIONS OF T HE RBI ON THE DEPOSITS ARE WITH REFERENCE TO THE NUMBE R OF PARTNERS OF ' EACH FIRM. AS THE ASSESSING OFFICE R IS AWARE, THE NUMBER OF PARTNERS IN A FINANCE CONCERN CANNOT BE MORE THAN 10. TO COVER THE NUMBER OF DEPOSITORS, THE ASSESSEE PROPOSED TO TRANSFER SOME OF THE BOOKS OF THE ASSESSEE FIRM TO AN ACCOUNT KNOWN AS OSFC. WHILE TRANSFERRING THE ASSESSEE (A) TRANSFERRED THE DEPOSITS RECEIVED (B) TRANSFERRED T HE HOUSING LOANS GIVEN. THE AMOUNTS COLLECTED BY OSFC AND PAYMENTS MADE BY THEM WERE SEPARATELY RECORDED. HOWEVER, AT CERTAIN POINTS OF TIME, THE AMOUNTS OF OSFC WERE TAKEN BY THE FIRM INTO ITS BOOKS OF ACCOUNT. THERE IS NO ADDITIONAL INVESTMENT WITH OSFC BY THE PARTNERS. THE OSFC CARRIED OUT THE FINANCING WITH THE AMOUNTS TRANSFERRED BY THE ASSESSEE I.E., EITHER BY COLLECTING THE LOANS OR IN TEREST ON LOANS AND MAKING PAYMENTS OF THE DEPOSITS AND INTEREST THEREON. VIRTUALLY THE ACCOUNTS OF OSFC WE RE ALMOST CARRIED ON BEHALF OF THE ASSESSEE FIRM TO SA VE ITSELF FROM THE RESTRICTIONS OF THE RBI. THE ASSESS EE WAS OF THE VIEW THAT SEPARATE PARTNERSHIP FIRMS WOULD FILE RETURNS OF INCOME BASED ON THE ENTRIES I N THE BOOKS OF OSFC. HOWEVER, TO SAVE LITIGATION, THE ASSESSEE PROPOSED TO INCORPORATE THE DEPOSITS, LOAN S, PAYMENTS OF INTEREST, RECEIPT OF INTEREST AND OTHER TRANSACTIONS CONTAINED IN THE BOOKS OF OSFC IN THE 7 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. BOOK OF THE ASSESSEE FIRM AND THE FINAL ACCOUNTS AR E RECAST. AFTER MAKING THE ABOVE ADJUSTMENTS A REVISED PROFIT AND LOSS, ACCOUNT IS DRAWN AND BALANCE SHEET IS PREPARED. DIFFERENCE BETWEEN THE FINAL ACCOUNTS FIL ED ALONG WITH THE RETURN OF INCOME AND THE ACCOUNTS NOW PREPARED ARE MENTIONED HEREUNDER: FINANCIAL YEARS 2001-2002 DETAILS AS PER ORIGINAL RETURNS OF INCOME RS. AS PER REVISED RETURNS OF INCOME RS. A. INTEREST ON CDS 4525923.7 5054787.55 B. BAD DEBTS 0 2175513 C. INTEREST PAYABLE ON CDS 505856.85 759871.75 D. INTEREST RECEIVABLE ON LOANS 6533930.81 4136370.76 E. CAPITAL ACCOUNTS OF PARTNERS 1359886.5 -552622.9 F. SUNDRY DEBTORS 9150402 12967700 G. CD ACCOUNT 18435685 22083735 H. CASH BALANCE 26302.87 462688.42 WITH THE ABOVE DIFFERENCES THE TOTAL INCOME FOR THE YEAR UNDER CONSIDERATION AMOUNTED TO RS.16,160/- AS AGAINST RS. 70, 730/ - ADMITTED IN THE ORIGINAL RET URN OF INCOME. IN RESPONSE TO THE NOTICE U/S 148 THE ASSESSEE IS SUBMITTING A REVISED RETURN OF INCOME INCORPORATION THE ABOVE FIGURES. THE ASSESSEE SUBMI TS THAT THE MISTAKES IN THE ACCOUNTS HAVE BEEN LOCATED BY THE ASSESSEE ON VERIFICATION OF THE ACCOUNTS. TH E CLERICAL ERRORS IN THE ACCOUNTS ARE IDENTIFIED BY T HE ASSESSEE ITSELF AND THE FINAL ACCOUNTS ARE APPROPRIATELY MODIFIED. THE ASSESSEE FIRM IS COMING FORWARD WITH THE CORRECT ACCOUNT AND THE REAL INCOM E DERIVED BY IT AND FILING THE RETURN OF INCOME VOLUNTARILY IN RESPONSE TO NOTICE U/S 148. THE ASSESSEE SUBMITS THAT ALL THE ABOVE OMISSIONS OR MISTAKES ARE COMMITTED INADVERTENTLY WHICH WERE FOUND BY THE ASSESSEE ITSELF. THE ASSESSEE IS PREPARED TO SUBMIT THE DETAILS IN RESPECT OF TILE REVISED RETURN OF INCOME NOW FILED AND IT REQUESTS THE ASSESSING OFFICER TO KINDLY COMPLETE THE ASSESSMENT 8 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. BASED ON REVISED RETURN OF INCOME'. 12. FROM THE ABOVE IT IS CLEAR THAT OSFC IS NOT DIFFERENT FROM THE APPELLANT FIRM AND THE ASSESSING OFFICER ASSESSED THE INCOME/LOSS AND CONSIDERED THE TRANSACTIONS OF OSFC IN THE ASSESSMENT OF THE APPELLANT FIRM. IN THE CIRCUMSTANCES, SUCH TRANSACTIONS ALSO CANNOT BE CONSIDERED AS LOAN OR ADVANCE AND, THEREFORE, THE PROVISIONS OF SEC.269SS ARE NOT APPLICABLE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT IT IS NOT A FIT CASE TO LEAVY PENALTY U/S 271D OF THE I.T. ACT AND THE PENALTY LEVIED OF RS.68,69,300/- FOR ASST. YEAR 2002-03 IS DELETED. 5. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDERS OF THE LD. CIT(A) AS IT IS BASICALLY ON APPRECIATION OF FACTS AS AVAILAB LE IN THE BOOKS OF ACCOUNTS. ORDERS IN QUANTUM WERE ALSO HEARD BY U S SEPARATELY AND THOSE FINDINGS WERE ALSO CONFIRMED V IDE OUR ORDER IN ITA.NO.783, 369, 370, 371 & 785/HYD/2006 E VEN DATED JULY, 2014. CONSEQUENT TO THAT WE DO NOT SEE ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). W E FIND THAT REVENUE HAS NOT MADE OUT ANY CASE SUPPORTING ITS CONTENTIONS. ACCORDINGLY, REVENUE GROUNDS ARE REJEC TED. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 16.07.2014. SD/- SD/- (SAKTIJIT DEY) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 16 TH JULY, 2014. VBP/- 9 ITA.NO.510, 511 & 512/HYD/2006 M/S. LAKSHMI SRINIVASA FINANCE CORPORATION SECUNDERABAD. COPY TO 1. INCOME TAX OFFICER, WARD 11(2), HYDERABAD. 2. M/S. LAKSHMI SRINIVASA FINANCE CORPORATION, 12-1 3-418/11, STREET NO.1, TARANAKA, SECUNDERABAD. 3. CIT(A)-VI, 3 RD FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 4. CIT-V, HYDERABAD 5. D.R. ITAT B BENCH, HYDERABAD.