MOHAMAD TASLIM SHAIKH, MUMBAI V. ITO 15(2)(3), MUMBAI

ITA 7259/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3931 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANDHIR GUPTA
• Assessee Lawyers: DR K SHIVARAM; NILAM JADAV
• Keywords: Bonafide belief; Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 7259/MUM/2012 (ASSESSMENT YEAR:2009-10) MR. MOHAMAD TASLIM SHAIKH 21, ASHIYANA, SALIM COMPOUND, CHIMAT PADA ROAD, ANDHERI (EAST), MUMBIA 400 059 APPELLANT VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE 15 (2), MUMBAI 400 007 RESPONDENT PAN: AWQPS1127C /BY APPELLANT : DR. K. SHIVARAM, SR. ADVOCATE & MS. NILAM JADAV /BY RESPONDENT : SHRI RANDHIR GUPTA, D.R. /DATE OF HEARING : 01.08.2016 /DATE OF PRONOUNCEMENT : 04.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-26, MUMBAI, DA TED 21.09.2012 FOR A.Y. 2009-10 ON FOLLOWING GROUND: ITA NO.7259/MUM/12 A.Y. 09-10 [MR. MOHAMAD TASLIM SHAIKH VS. ADDL. CIT] PAGE 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE HON. C.I.T.(A)-26, MUMBAI ERRED IN UPHOLDING LEVY O F PENALTY OF RS.10,69,000/- U/S.271D OF THE INCOME TA X ACT, 1961. 2. ASSESSEE IS AN INDIVIDUAL. DURING YEAR UNDER CONSI DERATION, ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,87,750/-. ASSESSEES FATHER MOHD. SALIM SHAIK H HAD PAID RS.10,69,000/- ON BEHALF OF ASSESSEE TO PURCHASE OF PROPERTY, WHICH WAS TREATED AS LOAN IN HIS BOOKS OF ACCOUNT. ASSESSING OFFICER INITIATED PENALTY U/S.269SS R.W.S. 271D OF THE ACT AND ISSUED A SHOW CAUSE NOTICE DATED 30.12.2012 U/S.271 D OF THE ACT. IN RESPONSE TO SAME, ASSESSEE FILED LETTER DA TED 23.01.2012 STATING THAT PENALTY INITIATED MAY BE FOR LEVY OF P ENALTY BE WAIVED. ASSESSING OFFICER LEVIED PENALTY OF RS.10,69,000/-. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN ASSESSEE FILED SUBMISSIONS VIDE LETTER DATE D 15.09.2012 AND 17.09.2012, BUT CIT(A) CONFIRMED THE PENALTY IN QUESTION. 2.2 SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF AS SESSEE INTER ALIA SUBMITTING THAT TRANSACTIONS WERE GENUIN E FOR THE PURPOSE OF PURCHASING IMMOVABLE PROPERTY. THE FATH ER OF ASSESSEE HAD PAID THE AMOUNT OF RS.10,69,000/- DIRE CTLY TO THE PARTY FROM WHOM THE ASSESSEE HAD PURCHASED THE PROP ERTY. WHEN ALL THE DETAILS ON RECORD OF THE REVENUE AND I T WAS A TRANSACTION BETWEEN FATHER AND SON FOR A REASONABLE CAUSE THEN THERE WAS NO SCOPE OF LEVY OF PENALTY U/S.271D OF T HE ACT. HE PLACED RELIANCE ON CERTAIN CASE LAWS AND SUBMITTED THAT IN THIS BACKGROUND, PENALTY IN QUESTION BE DELETED. ON THE OTHER HAND, ITA NO.7259/MUM/12 A.Y. 09-10 [MR. MOHAMAD TASLIM SHAIKH VS. ADDL. CIT] PAGE 3 LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER S OF AUTHORITIES BELOW. 2.3 AFTER GOING THROUGH RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD, WE FIND THAT SIMILAR ADDITION W AS DELETED BY ITAT, AHMEDABAD A BENCH IN CASE OF ITO VS. DATTUP RASAD MANHARLAL DAVE IN ITA NO.1816/AHD/2013, WHEREIN ON SIMILAR ISSUE, TRIBUNAL HAS GRANTED RELIEF TO ASSESSEE BY O BSERVING AS UNDER: 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F THE ASSESSEE. BEFORE THE CIT(A), THE STAND OF THE ASSES SEE HAS BEEN THAT HIS SON WAS APPLYING FOR VISA FOR HIGHER S TUDIES ABROAD, HENCE TO GET VISA, ASSESSEE NEEDED URGENT MO NEY TO SHOW THE HIGHER BALANCE IN BANK ACCOUNT AND THEREFO RE, HE HAD BORROWED THE MONEY FROM CLOSE RELATIVES VIZ, FA THER, BROTHER AND WIFE. IN THE PENALTY PROCEEDINGS, IT WA S SUBMITTED THAT BONAFIDE BELIEF COUPLED WITH THE GEN UINENESS OF TRANSACTIONS WOULD CONSTITUTE REASONABLE CAUSE W ITHIN THE MEANING OF PROVISIONS OF SEC.273B OF THE ACT. F URTHER, A FAMILY TRANSACTION BETWEEN TWO INDEPENDENT ASSESSEE S BASED ON AN ACT OF CASUALNESS WOULD ESTABLISH REASO NABLE CAUSE WITHIN THE MEANING OF PROVISION OF SEC. 273B OF THE ACT. IN THE APPELLATE PROCEEDINGS, THE CIT(A) HAVIN G CONSIDERED ALL THESE SUBMISSIONS OF ASSESSEE, OBSER VED THAT THE ASSESSEE HAS NOT ONLY PRODUCED CLOSE RELATIVES FROM WHOM THE ASSESSEE HAS TAKEN LOAN BUT ALSO GIVEN EVI DENCE THAT THE LOAN WAS GIVEN IN CASH, WHICH WAS WITHDRAW N BY THEIR OWN RESPECTIVE ACCOUNT ON THE SAME DAY OR ONE DAY BEFORE; THUS, HE HELD THAT THE GENUINENESS OF TRANS ACTION WAS ESTABLISHED AND THE ASSESSEE COULD ALSO ESTABLI SH THE REASONABLE CAUSE FOR THE SAME. THUS, THE CIT(A) HAS RIGHTLY DELETED THE PENALTIES U/S 271D & 271E OF THE ACT, B ECAUSE THE ASSESSEE HAS SHOWN REASONABLE CAUSE TO ACCEPT T HE MONEY FROM HIS CLOSE RELATIVES LIKE FATHER, BROTHER AND WIFE AND PAYMENT THEREOF. THEREFORE, THESE REASONED FIND INGS OF THE CIT(A) NEED NO INTERFERENCE FROM OUR SIDE. WE U PHOLD THE SAME. ITA NO.7259/MUM/12 A.Y. 09-10 [MR. MOHAMAD TASLIM SHAIKH VS. ADDL. CIT] PAGE 4 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 2.4 SIMILAR VIEW HAS BEEN TAKEN BY HONBLE ALLAHABA D HIGH COURT IN CASE OF CIT VS. SMT. DIMPAL YADAV & AKHILE SH KUMAR YADAV (2015) 379 ITR 177 (ALL)(HC), WHEREIN HON'BLE HIGH COURT UPHELD THE ORDER OF TRIBUNAL INTER ALIA HOLDING THA T LOAN TRANSACTION WAS GENUINE AND THERE WAS REASONABLE CA USE FOR CASH LOAN IN SIMILAR SITUATION. IN VIEW OF ABOVE, WE AR E NOT INCLINED TO CONCUR WITH THE FINDING OF CIT(A). ASSESSING OFFIC ER IS DIRECTED TO DELETE THE PENALTY LEVIED U/S.271D OF THE ACT BECAU SE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE TO ACCEPT THE MON EY FROM HIS CLOSE RELATIVE LIKE FATHER FOR MAKING PAYMENT FOR I MMOVABLE PROPERTY. 3. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 4 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 04/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,