Homoeopath Toufeeq Ahmed, Hyderabad V. Addl. Commissioner of Income Tax, Range-9, Hyderabad

ITA 512/Hyd/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5100 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-11-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 25-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Initiation of penalty proceedings; Reasonable cause; Set aside
• Section: 271(1)(c); 273B; 153A; 271D; 271E

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “SMC”, HYDERABAD BEFORE SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER आ.अपी.सं / ITA No. 512/Hyd/2023 (निर्धारण वर्ा / Assessment Year: 2017-18) Homoeopath Toufeeq Ahmed, Hyderabad [PAN: ABQPA3807N] Vs. Addl. Commissioner of Income Tax, Range-9, Hyderabad अपीलधर्थी / Appellant प्रत्‍यर्थी / Respondent निर्धाररती द्वधरध/Assessee by: Shri S. Phanindra, AR रधजस्‍व द्वधरध/Revenue by: Shri Waseem UR Rehman, DR स ु िवधई की तधरीख/Date of hearing: 23/11/2023 घोर्णध की तधरीख/Pronouncement on: 29/11/2023 आदेश / ORDER Aggrieved by the order dated 26/09/2023 passed by the learned Commissioner of Income Tax (Appeals)- National Faceless Appeal Centre (NFAC), Delhi (“Ld. CIT(A)”), in the case of Homoeopath Toufeeq Ahmed (“the assessee”) for the assessment year 2017-18, assessee preferred this appeal. 2. Brief facts of the case are that during the financial year relevant to assessment year 2017-18, assessee sold a house bearing Municipal No. 16-9-433/1, admeasuring 407.7 Sq. Yards or equivalent to 340.91 Sq. ITA No. 512/Hyd/2023 Page 2 of 9 Meters, situated at old Malakpet, near Race Course, Hyderabad for an amount of Rs. 41,53,000/- and accepted Rs. 41,53,000/- in cash in contravention to the provision of section 269SS of the Income Tax Act, 1961 (‘the Act’), learned Assessing Officer levied penalty of Rs. 41.53 lakhs under section 271D of the Act. 3. In appeal, learned CIT(A) confirmed the penalty, observing that only provision that comes to the help of the assessee in this case is as provided in section 273B of the Act, according to which, no penalty shall be imposable on the person for any failure referred to, if he proves that there was reasonable cause for such failure and the assessee proves that due to that reasonable cause, he was prevented to take a loan otherwise than by an account payee cheque or draft. Thus, according to the learned CIT(A), the only provision that comes to the help of the assessee is provided in section 273B of the Act and since the assessee in this case failed to provide any reasonable cause for accepting cash amount of sale consideration of Rs. 41,53,000/-, the contentions made by the assessee were held to be devoid of merit as the purpose of the loan is not a relevant fact for deciding the contravention of provisions under section 269SS of the Act. Learned CIT(A) accordingly held that there is no need to interfere with the addition made by the learned Assessing Officer under section 271D of the Act and consequently dismissed the appeal. 4. Assessee filed the present appeal and contended that the impugned order is erroneous and bad in law inasmuch as the penalty under section 271D of the Act was levied and sustained without satisfaction being recorded in the assessment order. He placed reliance on the decision of the Hon’ble Apex Court in the case of CIT vs. Jai Laxmi Rice Mills (2016) 237 ITA No. 512/Hyd/2023 Page 3 of 9 Taxman 375 (SC) and Srinivasa Reddy Reddeppagari vs. JCIT in W.P.No.44285 of 2022, dated 26/12/2022. 5. Per contra, learned DR argued that once the violation of the provisions under section 269SS of the Act is established, penalty under section 271D of the Act is automatic and, therefore, no question of satisfaction arises. Learned DR further submitted that the penalty under section 271D of the Act is leviable even without the assessment order and such proceedings are independent in themselves. 6. I have gone through the record in the light of the submissions made on either side. The only question that arises is whether without satisfaction being recorded in the assessment order, penalty can be levied under section 271D of the Act? This question has directly and substantially been dealt with by the Hon’ble jurisdictional High Court in the case of Srinivasa Reddy Reddeppagari (supra). In that case, while referring to the decision of the Hon’ble Apex Court in the case of Jai Laxmi Rice Mills (supra), the Hon’ble High Court held that the provisions under section 271E and 271D of the Act are in pari materia and since in terms of the decision in Jai Laxmi Rice Mills (supra), satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under section 271E of the Act, the same is equally applicable for initiation of penalty proceedings under section 271D of the Act. Hon’ble High Court further observed that when there is a decision of the Supreme Court, it is the bounden duty of an adjudicating authority, be in an income tax authority or any other civil authority or for that matter any court in the country, to comply with the decision of the Supreme Court. For the sake of ITA No. 512/Hyd/2023 Page 4 of 9 completeness, I deem it just and necessary to extract hereunder the relevant observations and findings of the Hon'ble High Court,- “14. Issue raised in the writ petition is whether without satisfaction being recorded in the assessment order, penalty can be levied by the Joint Commissioner under Section 271D of the Act ? 15. Insofar the present case is concerned, we find that in the assessment order dated 24.03.2022 passed under Section 153A of the Act, return of income filed by the petitioner was accepted by the assessing officer and accordingly, the total income was assessed. In the return of income, petitioner had admitted receiving total income of Rs.80,84,180.00 which was also accepted by the assessing officer. 16. Subsequently, respondent No.1 took the view that petitioner had sold immovable properties for a total sale consideration of Rs.92,13,000.00 out of which he had accepted cash to the tune of Rs.87,80,000.00 which was in violation of Section 269SS of the Act, attracting penalty under Section 271D of the Act. 17. Before we advert to the reply submitted by the petitioner, we may mention that under Section 269SS of the Act, no person shall take or accept from any other person (referred to as a depositor) any loan or deposit or any specified sum otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed, if the amount of such loan or deposit or specified sum is twenty thousand rupees or more. However, as per the first proviso, the rigor of Section 269SS is not applicable to the Government, banking company, post office savings bank or cooperative bank etc. As per the second proviso, this provision would also not be applicable where both the depositor and the receiver are having agricultural income and neither of them has any income chargeable to tax under the Act. 18. Section 271D of the Act deals with penalty for failure to comply with the provisions of Section 269SS of the Act. Section 271D of the Act being relevant is extracted hereunder: Penalty for failure to comply with the provisions of section 269SS. 271D. (1) If a person takes or accepts any loan or deposit [or specified sum] in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit [or specified sum] ITA No. 512/Hyd/2023 Page 5 of 9 so taken or accepted.] [(2) Any penalty imposable under sub- section (1) shall be imposed by the [Joint] Commissioner.] 19. Thus, what sub-section (1) of Section 271D provides for is that if a person takes or accepts any loan or deposit or specified amount in contravention of the provisions of Section 269SS, he shall be liable to pay by way of penalty, a sum equal to the amount of the loan or deposit or specified sum so taken or accepted. Sub-section (2) clarifies that any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner. 20. It would be useful to refer to Section 271E of the Act also at this stage which deals with penalty for failure to comply with the provisions of Section 269T of the Act. Be it stated that Section 269T of the Act provides that no branch of a banking company or a cooperative bank and no other company or cooperative society and no firm or other person shall repay any loan or deposit made with it or any specified advance received by it otherwise than by an account payee cheque or account payee bank draft drawn in the name of the person who had made the loan or deposit or who had paid the specified advance or by use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed, if such an amount is twenty thousand rupees or more. As in the case of Section 269SS, Section 269T of the Act also does not apply to the Government, banking company, post office savings bank etc. Section 271E of the Act reads as under: Penalty for failure to comply with the provisions of section 269T. 271E. [(1)] If a person repays any [loan or] deposit [or specified advance] referred to in section 269T otherwise than in accordance with the provisions of that section, he shall be liable to pay, by way of penalty, a sum equal to the amount of the [loan or] deposit [or specified advance] so repaid.] [(2) Any penalty imposable under sub-section (1) shall be imposed by the [Joint] Commissioner.] 21. Thus, sub-section (1) of Section 271E of the Act provides that if a person repays any loan or deposit or specified advance referred to in Section 269T of the Act otherwise than in accordance with the provisions of that section, he shall be liable to pay by way of penalty a sum equal to the amount of the loan or deposit or specified advance so repaid. Sub-section (2) clarifies that any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner. ITA No. 512/Hyd/2023 Page 6 of 9 22. From an analysis of Sections 271D and 271E of the Act, it is seen that both the provisions are pari materia to each other. While Section 271D of the Act would be attracted on a person accepting loan or deposit or specified sum in contravention of Section 269SS of the Act, penalty under Section 271E of the Act would be imposable on a person who makes or repays the loan or deposit or specified advance in contravention of Section 269T. Therefore, in a way, the two provisions are complimentary to each other. 23. In Jai Laxmi Rice Mills Ambala City (supra), Supreme Court considered the question as to whether penalty proceedings under Section 271D of the Act is independent of the assessment proceeding ? In the facts of that case, it was found that the penalty order was issued following the assessment order. However in appeal, Commissioner of Income Tax (Appeals) had set aside the original assessment order with a direction to frame assessment de novo. In the fresh assessment order, no satisfaction was recorded by the assessing officer regarding initiation of penalty proceedings under Section 271E of the Act. It was noticed that the penalty order was passed before the appeal of the assessee was allowed by the Commissioner of Income Tax (Appeals). It was in that context that Supreme Court held as follows: The Tribunal as well as the High Court has held that it could not be so for the simple reason that when the original assessment order itself was set aside, the satisfaction recorded therein for the purpose of initiation of the penalty proceeding under Section 271E would also not survive. This according to us is the correct proposition of law stated by the High Court in the impugned order. As pointed out above, insofar as, fresh assessment order is concerned, there was no satisfaction recorded regarding penalty proceeding under Section 271E of the Act, though in that order the Assessing Officer wanted penalty proceeding to be initiated under Section 271(1)(c) of the Act. Thus, insofar as penalty under Section 271E is concerned, it was without any satisfaction and, therefore, no such penalty could be levied. These appeals are, accordingly, dismissed. 24. Reverting back to the facts of the present case, we find that petitioner had submitted reply to the show cause notice on 02.06.2022. In his reply, petitioner mentioned that no satisfaction was recorded by the assessing officer in the assessment order as to infraction of Section 269SS of the Act. Therefore, no penalty could be ITA No. 512/Hyd/2023 Page 7 of 9 levied under Section 271D of the Act without recorded satisfaction. In this connection, reference was made to the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City (1 supra) wherein it was clarified that provisions of Section 271E are in pari materia with the provisions of Section 271D of the Act. However, this aspect of the matter was not considered by respondent No.1 while passing the impugned order. Respondent No.1 relying upon the Kerala High Court decision in Grihalaxmi Vision (2 supra) noted that competent authority to levy penalty is the Joint Commissioner. He has also referred to an earlier decision of the Supreme Court in CIT V. Mac Data Ltd.3 wherein it was observed that assessing officer has to satisfy himself as to whether penalty proceedings should be initiated or not. Assessing officer is not required to record his satisfaction in a particular manner or reduce it into writing. Therefore, respondent No.1 imposed the penalty under Section 271D of the Act. 25. We are afraid respondent No.1 had completely overlooked the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City (1 supra). In the said decision as extracted above, Supreme Court had concurred with the view taken by the High Court holding that satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under Section 271E of the Act. We have already discussed above that provisions of Section 271E and 271D of the Act are in pari materia. When there is a decision of the Supreme Court, it is the bounden duty of an adjudicating authority, be it an income tax authority or any other civil authority or for that matter any court in the country, to comply with the decision of the Supreme Court. 26. Article 141 of the Constitution of India is clear that law declared by the Supreme Court shall be binding on all courts within the territory of India. This is further clarified in Article 144, which says that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. We are therefore, of the unhesitant view that respondent No.1 overlooked the relevant considerations while passing the impugned order dated.29.11.2022. 27. Further, issue in the present writ petition is not the competence of the Joint Commissioner in issuing the order of penalty. Therefore, reference to Grihalaxmi Vision (2 supra) was wholly unnecessary. 28.Consequently, we set aside the impugned order dated 29.11.2022 and remand the matter back to the file of respondent No.1 to pass a fresh order in accordance with law after giving a reasonable opportunity of hearing to the petitioner.” ITA No. 512/Hyd/2023 Page 8 of 9 7. While respectfully following the decision of the Hon’ble jurisdictional High Court as extracted above, I hold that the impugned orders dated 26/09/2023 passed by the learned CIT(A) and order dated 28/01/2020 passed by the Additional Commissioner of Income Tax, are bad in law and are liable to be quashed. Grounds of appeal are accordingly allowed. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open court on this the 29 th day of November, 2023. Sd/- (K. NARASIMHA CHARY) JUDICIAL MEMBER Hyderabad, Dated: 29/11/2023 TNMM ITA No. 512/Hyd/2023 Page 9 of 9 Copy forwarded to: 1. Homoeopath Toufeeq Ahmed, 17-2-305/43, Kurmaguda, Yakutpura, Hyderabad. 2. The Addl. Commissioner of Income Tax, Range-9, Hyderabad. 3. Pr.CIT, Hyderabad. 4. DR, ITAT, Hyderabad. 5. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD