SWAPNIL MURLIDHAR PICHAD, MUMBAI V. JT. CIT. RANG- 1 KALYAN, KALYAN

ITA 5402/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2734 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 19-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Assessee Lawyers: RAJENDRA KADREK
• Keywords: Unexplained cash credit; Reasonable cause
• Section: 273B; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , G BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH, VP & SHRI M.BALAGANESH, AM ITA NO. 5402 /MUM/ 20 18 ( ASSESSMENT YEAR : 2012 - 1 3 ) SHRI SWAPNIL MURLIDHAR PICHAD B - 508, ASHOKA BUILDING NO .2 GAVAND BAUG, POKHARAN ROAD NO.2 THANE 400 606 VS. JT. COMMISSIONER OF INCOME TAX, RANGE 1 MOHAN PLAZA, WAYALE NAGAR KADAKPADA, KALYAN (W) DIST: THANE 421 301 PAN/GIR NO. BJCPP9926N (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI RAJENDRA KADREK AR REVENUE BY SHRI T.S. KHALSA DATE OF HEARING 19 / 11 /2020 DATE OF PRONOUNCEMENT 19 / 11 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 5402/MUM/2018 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS) - 2, PUNE IN APPEAL NO. THN/CIT(A) - 2/JCIT RG - 1/KYN/693/2015 - 16 DATED 10/04/2018 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.271D OF THE INCOME TAX ACT, 1961. ITA NO . 5402/MUM/2018 SHRI SWAPNIL MURLIDHAR PICHAD 2 2. AT THE OUTSET, WE FIND THAT THERE IS AN AFFIDAVIT ON 12/09/2018 FILED BY THE ASSESSEE STATING THAT THERE IS A DELAY IN FILING OF APPEAL BY HIM. BUT WE FIND THAT IN THE INSTANT CASE, THE ORDER OF THE LD. CIT(A) WAS PASSED ON 10/04/2018 WHICH WAS STATED TO BE RECEIVED BY THE ASSESSEE ON 09/06/2018 AND WE FI ND THAT APPEAL HAS BEEN FILED ON 19/07/2018. HENCE, IN OUR CONSIDERED OPINION, THERE IS NO DELAY IN FILING OF APPEAL BY THE ASSESSEE BEFORE US. 3 . THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S.271D OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. 4 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF RETAIL TRADING OF T YRES OF M/S. J.K. TYRES AND INDUSTRIES UNDER THE NAME AND STYLE OF M/S. GAJANAN TYRE SERV ICES. THE ASSESSEE FILED HI S RETURN OF INCOME FOR THE A.Y.2012 - 13 ON 30/09/2012 DECLARING TOTAL INCOME OF RS.8,02,810/ - . THE ASSESSMENT WAS COMPLETED BY THE LD. AO U/S .143(3) OF THE ACT ON 12/03/2015 DETERMINING TOTAL INCOME OF RS.15,19,810/ - AFTER MAKING AN ADDITION OF RS.7,17,000/ - TOWARDS UNEXPLAINED CASH CREDIT IN RESPECT OF LOAN RECEIVED BY THE ASSESSEE FROM HIS FATHER IN CASH. PARALLELLY, THE LD. AO HAD ALSO INITI ATED THE PENALTY PROCEEDINGS U/S.271D OF THE ACT FOR VIOLATION OF PROVISIONS OF SECTION 269SS OF THE ACT. WE FIND THAT THE QUANTUM APPEAL HAD TRAVELLED UP TO THIS TRIBUNAL AT THE BEHEST OF THE ASSESSEE AND THIS TRIBUNAL IN ITA NO.7315/MU M/2017 DATED 09/08/2018 HAD ACCEPTED THE LOAN RECEIVED BY THE ASSESSEE FROM HIS FATHER IN THE SUM OF RS.7,17,000/ - IN CASH AS A GENUINE LOAN SPECIFYING ALL THE THREE NECESSARY INGREDIENTS OF SECTION 58 OF THE ACT AND ACCORDINGLY, DELETED THE ADDITION MADE THEREON. ITA NO . 5402/MUM/2018 SHRI SWAPNIL MURLIDHAR PICHAD 3 4 .1. WE FIND THAT THE LD. JCIT, RANGE - 1, KALYAN HAD PROCEEDED TO LEVY PENALTY U/S.271D OF THE ACT IN RESPECT OF CASH LOAN RECEIVED BY THE ASSESSEE IN THE SUM OF RS.7,17,000/ - FROM HIS FATHER. THIS PENALTY WAS UPHELD BY THE LD. CIT(A). WE FIND THA T THERE IS NO DISPUTE THAT ASSESSEE DURING THE YEAR HAD INDEED RECEIVED CASH LOAN IN THE SUM OF RS.7,17,000/ - FROM HIS FATHER. WE FIND THAT THIS TRIBUNAL VIDE ITS ORDER DATED 09/08/2018 IN THE QUANTUM APPEAL HAD ACCEPTED THE GENUINENESS OF THE SAID TRANSAC TION AND HAD GIVEN A CATEGORICAL FIN DING THAT FATHER WHO IS IN THE BUSINESS OF RETAIL OUTLET OF PETROLEUM PRODUCTS (I.E. PETROL PUMP) HAD SUFFICIENT CREDIT WORTHINESS TO ADVANCE CASH LOAN TO THE ASSESSEE AND THIS TRIBUNAL HAD ALSO GIVEN A FINDING THAT THE IDENTITY OF LOAN CREDITOR I.E. FATHER OF ASSESSEE AND THE GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED BEYOND DOUBT IN THE INSTANT CASE. HENCE, IT COULD BE SAFELY CONCLUDED THAT THE GENUINENESS OF THE ENTIRE LOAN TRANSACTION IS NOT IN DISPUTE BEFORE US. WE FIND THAT ASSESSEES LINE OF BUSINESS OF RETAIL TRADING OF TYRES IS CARRIED ON CREDIT BASIS. WE FIND THAT THE ASSESSEE HAD GIVEN AN EXPLANATION THAT DUE TO PAUCITY OF WORKING CAPITAL FUNDS AVAILABLE WITH THE ASSESSEE, THE ASSESSEE WAS FORCED TO BORROW CASH LOAN FROM HIS FATHER WHO CARRIES ON BUSINESS OF DOING SALES ON CASH BASIS. HENCE, TO MEET OUT THE URGENT FUNDING REQUIREMENT TO CLEAR THE CHEQUES, THE ASSESSEE WAS FORCED TO RECEIVE CASH LOAN FROM HIS FATHER IN THE SUM OF RS.7,17,000/ - FOR MEETING HIS BUSINESS EXIGENCIES. THIS, IN OUR CONSIDERED OPINION, IS A REASONABLE CAUSE ADDUCED BY THE ASSESSEE WITHIN THE MEANING OF SECTION 273B OF THE ACT AND HENCE, ASSESSEE WOULD BE ENTITLED FOR IMMUNITY FOR LEVY OF PENALTY. 4 .2. WE FIND THAT THE HONBLE MADRAS HIGH CO URT IN THE CASE OF CIT VS. M. YES ODHA REPORTED IN 351 ITR 265 HAD HELD THAT THE CASH LOAN ITA NO . 5402/MUM/2018 SHRI SWAPNIL MURLIDHAR PICHAD 4 TRANSACTION BETWEEN FATHER - IN - LAW AND DAUGHTER - IN - LAW CANNOT BE SUBJECT MATTER OF LEVY OF PENALTY U/S.271D OF THE ACT AS LONG AS THE SOURCES FOR THE SAME ARE ESTABLISHED. IN THE INSTANT CASE, THERE IS ABSOLUTELY NO DISPUTE THAT THE FATHER OF THE A SSESSEE HAD SUFFICIENT SOURCES TO ADVANCE CASH LOAN TO THE ASSESSEE IN THE SUM OF RS.7,17,000/ - . WE ALSO FIND THAT THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. MANOJ LALWANI REPORTED IN 260 ITR 590 HAD HELD THAT WHEN THE CASH LOAN HAS BEEN TAKEN IN VIEW OF THE URGENT NEED CONNECTED WITH EXPORT, NO PENALTY U/S.271D OF THE ACT COULD BE LEVIED ON THE SAME. IN THE INSTANT CASE BEFORE US, THERE IS NO DISPUTE THAT THE CASH LOAN WAS RECEIVED BY THE ASSESSEE FROM HIS FATHER FOR MEETING HIS URGENT BUSINESS EXIGENCIES. IN VIEW OF THE AFORESAID OBSERVATIONS AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HEREBY DIRECT THE LD. AO TO DELETE T HE PENALTY U/S.271D OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 / 11 /2020 . SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 19 / 11 / 2020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI. ITA NO . 5402/MUM/2018 SHRI SWAPNIL MURLIDHAR PICHAD 5 BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//