ACIT 14(1), MUMBAI V. PRADIP B SHAH, MUMBAI

ITA 6723/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100579 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Section: 143(3)

Judgement Text

PRADIP B SHAH ITA 6 7 2 3 /M/201 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI . , , BEFORE SHRI D KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUK LA , JUDICIAL MEMBER ITA NO. : 6 7 2 3 /MUM/20 1 3 (ASSESSMENT YEAR: 200 9 - 1 0) A C IT - 1 4 ( 1 ), R. NO. 202 , 2 ND FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI 400 02 1 VS PRADIP B SHAH, 404 - A WAGHWADI KALBADEVI ROAD, MUMBAI - 400 0 02 .: PAN : A A EPS 1752 P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S K MAHAPATRA RESPONDENT BY : SHRI MILIN DATTANI /DATE OF HEARING : 23 - 0 7 - 2015 / DATE OF PRONOUNCEMENT : 12 - 0 8 - 2015 ORDER PER AMIT SHUKLA , J.M. : TH E AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 08 . 08 .2013 PASSED BY CIT(A) - 2 5 , MUMBAI IN RELATION TO THE PENALTY PROCEEDINGS U/S 271D FOR THE ASSESSMENT YEAR 2009 - 10. 2. B RIEF FACTS OF THE CASE ARE THAT , THE ASSESSMENT U/S 143(3) WAS COMPLETED VIDE ORDER DATED 26.12.2011 AT INCOME OF RS. 3 ,3 2 ,410/ - AS AGAINST THE RETURNED INCOME FOR THE SAME AMOUNT. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTI CED THAT THE ASSESSEE HAS ACCEPTED REPAYMENT OF LOAN IN CASH FROM SHRI R AJESH K UMA R SINGH AMOUNTING TO RS. 7,00,000/ - IN CONTRAVENTION OF SECTION 269SS OF THE ACT . IN THE PENALTY PROCEEDINGS, THE ASSESSEE IN RESPONSE TO SHO W CAUSE NOTICE MADE DETAILED SUBM ISSIONS AND STATED THAT HE HAS ADVANCE D LOAN OF RS. 18,50,000/ - T O SHRI RAJESH KUMA R SINGH IN THE YEAR 2007 , WHICH WAS REPAID TO HIM IN INSTALLMENTS . THE SAID RETURN OF LOAN WAS PRADIP B SHAH ITA 6 7 2 3 /M/201 3 2 MADE BY SHRI RAJESH KUMA R SINGH AFTER WITHDRAWING THE CASH FROM HIS A CCOUNT. A CCORDINGLY, THERE IS NO VIOLATION OF SECTION 269SS. HOWEVER, THE ASSESSING OFFICER LEVIED THE PENALTY ON THE GROUND THAT ASSESSEE HAS RECEIVED REPAYMENT OF LOAN IN CASH WHICH WAS ADVANCED EARLIER BY THE ASSESSEE. HOWEVER LD. CIT(A) DELETED THE PENALTY. 3 . AFTER CONSIDERING THE IMPUGNED ORDERS, WE FIND THAT THE ENTIRE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IS MISCONCEIVED. FROM THE PLAIN READING OF THE SECTION 269SS, IT CAN BE SEEN THAT THE SAID SECTION PROVIDES THAT , NO PERSON SHALL TAK E OR ACCEPT FROM ANY OTHER PERSON ANY SUCH LOAN OR DEPOSIT OTHERWISE THEN BY AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DRAFT . HERE IN THIS CASE, THE ASSESSEE HAS NEITHER TAKEN NOR ACCEPTED ANY LOAN N OR ANY DEPOSIT. HE HAS ON L Y RECEIVED THE REPAYMENT OF LO A N AMOUNT WHICH HE HAS GIVEN BY HIM EARLIER IN THE YEAR 2007 . THUS, IT IS NEITHER ADVANCING OF MONEY NOR RECEIVING OF LOAN OR DEPOSIT IN CASH. THE NATURE OF CASH MONEY RECEIVED SHOULD BE IN THE FORM OF LOAN OR DEPOSIT WHICH IS NOT HERE . NOWHERE THIS SECTION PROVIDES THAT THE ASSESSEE CANNOT RECEIVE THE REPAYMENT OF LOAN MADE BY THE OTHER PERSON. IF AT ALL ANY VIOLATION H AS BEEN MADE , THEN SAME SHOULD HAVE BEEN INVOKED IN THE CASE OF THE OTHER PERSON WHO HAS REPAID THE L O A N IN CASH, WHICH CAN BE SAID TO BE IN VIOLATIO N OF SECTION 269T. ACCORDINGLY, THE ORDER OF THE CIT(A) DELETING THE PENALTY STANDS CONFIRMED. 4 . IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST , 2015. SD/ - SD/ - ( . ) ( ) ( D KARUNAKARA RAO ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 12 TH AUGUST , 2015 PRADIP B SHAH ITA 6 7 2 3 /M/201 3 3 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 2 5 , MUMBAI 4 ) THE CIT 9/IX , MUMBAI . 5 ) , , / THE D. R. C BENCH, MUMBAI. 6 ) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS