Shri Parag P. Joshi, RAJKOT-GUJARAT V. The Addl. Commmr. Income Tax, Range-4, RAJKOT-GUJARAT

ITA 560/RJT/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6285 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 143(3); 271D; 271E; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI MAHAVIR PRASAD , JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] PARAG P. JOSHI, GAYATRI DARSHAN, DENA BANK SOCIETY, AMIN MARG, RAJKOT PAN: ABKPJ8310R (APPELLANT) VS THE ADDL. CIT, RANGE - 4, RAJKO T (RESPONDENT) REVENUE BY : S H RI ANIL KUMAR DAS , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 21 - 01 - 2 020 DATE OF PRONOUNCEMENT : 28 - 01 - 2 020 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE TWO APPEALS FILED BY ASSESSEE FOR A.Y. 2009 - 10 , AR ISE FROM ORDER OF THE CIT(A) - 2, RAJKOT DATED 21 - 08 - 2015 , I N PROCEEDINGS UNDER SECTION 271D & 271E OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . ITA NO. 560/RJT/2015 2 . THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING PENALTY U/S. 271D OF RS. 1 , 97 , 50 0 / - I T A NO S . 5 60 & 561 / RJT /20 15 A SSESSMENT YEAR 200 9 - 10 I.T.A NO S . 560 & 561 /RJT /20 15 A.Y. 2009 - 10 PAGE NO PARAG P. JOSHI VS. ADDL. CIT 2 3. THE FACT IN BRIEF IS THAT THE ASSESSEE HAS FILED RETURN OF INCOME ON 28 TH JULY, 2009 DEC LARING TOTAL INCOME OF RS. 71 , 33 ,3 37/ - . THE ASSESSMENT U/S. 143(3) WAS COMPLETED ON 7 TH DECEMBE R , 2011 DETERMINING THE TOTAL INCOME AT RS. 7 , 23 , 130/ - . DURING THE COURSE OF ASSES SMENT, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS ACCEPTED LOAN AND MA DE ITS REPAYMENT IN MODE OTHER THAN BY CROSSED DEMAND OR CHEQUE AS PRESCRIBED IN SECTION 269SS AND 269TT. LOOKING TO THESE FACTS AND CIRCUMSTANCES, PENALTY PROCEEDINGS U/S. 271D AND 271 E W E RE INITIATED AND NOTICE U/S. 274 R.W.S. 271D OF THE ACT WAS ISSUE D ON 25 TH DECEMBER, 2012. THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE PENALTY U/S. 271D SHOULD NOT BE IMPOSED. THE ASSESSEE EXPLAINED THAT H E WAS AN EMPLOYEE OF LIFE I NSURANCE C ORPORATION AND DERIVING SALARY INCOME AND HE HAD NOT MAINTAINED ANY REGULAR BOOK S OF ACCOUNT S AND HE WAS ALSO A MEMBER OF LIC EMPLOYEE S CONSUMERS AND WELFARE CO - OP. SOCIETY LTD. , RAJKOT WHICH WAS DULY LISTED U NDER THE COOPERATIVE SOCIETY A CT, 1961. THE SOCIETY WAS SOLELY EXISTED FOR THE WELFARE OF ITS MEMBER S AND PROVIDE FINANCIAL A SSISTANCE FOR THEIR PERSONAL NEEDS . U NDER THE YE AR UNDER CONSIDERATION , THE ASSESSEE HAS OBTAIN ED LOAN OF RS. 2 LACS FROM THE S OCIETY FOR PERSONAL NEEDS I.E. REPAIRING OF THE RESIDENTIAL HOUSE . THE AMOUNT OF LOAN OF R S. 2 LACS WAS SANCTIONED THROUGH THE B EARER CHEQUE AND SAME WAS ENCA S HED FROM THE BANK OF THE ASSESSEE ON 2 ND JUNE, 2008 AS IT WAS URGENTLY REQUIRED FOR REPAIR ING HOUSE , THEREFORE , PLEADED THAT PENALTY U/S. 271D BE NOT LE V I ED. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF THE ASS ESSEE AND LEVIED PENALTY OF RS. 1 , 97 , 500/ - FOR ACCEPTING LOAN FROM C O - OPE RATIVE S OCIETY THROUGH BEARER CHEQUE. I.T.A NO S . 560 & 561 /RJT /20 15 A.Y. 2009 - 10 PAGE NO PARAG P. JOSHI VS. ADDL. CIT 3 4. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE ASSESSEE HAS FILE D WRITTEN SUBMISSION. THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE OR D ER OF LD. CIT(A). 6 . WE HAVE GONE THROUGH THE SUBMISSION OF THE ASSESSEE AND HEARD LD. DEPARTMENTAL REPRE SENTATIVE. THE ASSESSEE BEING EMPLOYEE OF LIC WAS A MEMBER OF LIC EMPL OYEES AND WELFARE CO - OPERATIVE S OCIETY. THE A SSESSEE HAS OBTAINED LOAN FROM E MPLOYEES WELFARE CO - OPERATIVE S OCIETY FOR REPAIRING OF HI S HOUSE. IT IS SUBMITTED THAT S OCIETY USED TO ISSUE BEARER CHEQUE TO ALL ITS MEMBER S . T HE GENUINENESS OF THE LOAN W AS NOT IN QUESTION. THE LOAN WAS OBTAI NED FOR REPAIRING THE HOUSE OF THE ASSESSEE ON URGENT BASIS. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE OBSERVE THAT THE GENUINENESS OF THE LOAN AS WELL AS THE IDENTITY AND CAPACITY OF THE SOCIETY HAVE BEE N ACCEPTED BY THE ASSESSING OFFICER AND WE FIND THAT THERE WAS BONAFI D E REASON F OR AVAILING SUCH LOAN FROM THE S OCIETY , THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 561 /RJT/2015 6. ON THE SAME FACTS AND CIRCUMSTANCES AS ELABORATED IN ORDER ADJUDICATED I N THE CASE OF THE ASSESSEE VIDE ABOVE ITA NO. 560/RJT/2015 T HE ASSESSING OFFICER HAS LEVIED PENALTY U/S. 271E OF RS. 84 , 459/ - FOR MAKING REPAYMENT OF LOAN OF RS. 84 , 459/ - TO CO - OPERATIVE SOCIETY OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE OR ACC OUNT PAY EE BANK DRAFT. THE ASSESSEE HAD PREVIOUSLY AVAILED LOAN FROM T HE SOCIETY AND THERE WAS OUTSTANDING BALANCE I.T.A NO S . 560 & 561 /RJT /20 15 A.Y. 2009 - 10 PAGE NO PARAG P. JOSHI VS. ADDL. CIT 4 OF RS. 84 , 459/ - . THE ASSESSEE HAS WITHDRAWN THE AMOUNT FROM HIS SAVING BANK ACCOUNT WITH THE CORPORATION BANK FOR LIQUIDATING OUTSTANDING D UES OF PREVIOUS LOAN IN ORDER TO AVAIL NEW LOAN OF RS. 2 LACS FROM THE SOCIETY TO UTILIZE URGENTLY TOWARDS REPAIRING OF HOUSE . 7. CONSIDERING THE SIMILAR FACTS AS ADJUDICATED VIDE ITA NO. 560 /RJT/20115, B EFORE AVAILING LOAN FOR URGENT REPAIRING OF HO USE THE ASSESSEE HAS REPAID THE OUTSTANDING LOAN OF RS. 84 , 459/ - AFTER MAKING PERSONAL WITHDRAWAL FROM HIS SAVING BANK ACCOUNT WITH CORPORATION B ANK, THEREFORE, ON SIMILAR REASON AS HELD IN THE CASE OF THE ASSESSE E VIDE 560/AHD2015 , THE APPEAL OF THE ASSES SEE IS ALLOWED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 28 - 01 - 20 20 SD/ - SD/ - (MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AH MEDABAD : DATED 28 /01/2020 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT