Sh. Shyam Sunder Chhapariya, Gwalior V. I.T.O., Range-2(3), Gwalior

ITA 87/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0698 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 1 month(s) 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2013
• Assessment Year: misc
• Appeal Filed On: 04-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: V BAPNA
• Keywords: Unexplained cash credit; Reasonable cause
• Section: 271D; 271E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS. 87 & 112/AGRA/ 2013 ASSESSMENT YEARS 2006-07 SHYAM SUNDER CHHAPARIA, VS. ITO,RANGE2(3), B-2, BASANT VIHAR, CITY CENTER, GWALIOR AYKAR BHAWAN, GWALIOR. (PAN ABPPC 9555J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. BAPNA, C.A. RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 02.07.2013 DATE OF PRONOUNCEMENT : 05.07.2013 ORDER PER A.L. GEHLOT,ACCOUNTANT MEMBER: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST TWO DIFFERENT ORDERS OF LD. CIT(A), GWALIOR BOTH DATED 22.02.2013 FOR A. YS. 2006-07. 2. THE GROUNDS RAISED IN BOTH THE APPEALS ARE ON ID ENTICAL SET OF FACTS, THEREFORE, BOTH THE APPEALS ARE DECIDED BY THIS COM MON ORDER. ITA NOS.87/AGRA/2013 112/AGRA/2013 A.YS.2006-07 2 3. THE GROUNDS OF APPEALS ARE THAT THE CIT(A) CONFI RMED THE PENALTY UNDER SECTION 271E & 271D OF THE ACT OF RS.2,68,500/- EAC H. 4. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS ACCEPTED AND REPAID LOAN OF RS.2,68,500/- TO M/S. SONU ENTERPRISES ON 05.11.200 5. ACCORDINGLY, TO THE A.O. IT WAS CONTRAVENING THE PROVISION OF SECTION 2 69SS & 269T OF THE ACT. THE A.O. LEVIED THE PENALTY UNDER SECTION 271D RS.2 ,68,500/- FOR CONTRAVENTION OF PROVISION OF SECTION 269SS AND PEN ALTY OF RS.2,68,500/- UNDER SECTION 271E FOR CONTRAVENTION OF SECTION 269 T OF THE ACT. THE PENALTY LEVIED BY A.O. HAS BEEN CONFIRMED BY CIT(A) UNDER B OTH THE SECTIONS 271D & 271E OF THE ACT. 5. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT BOTH THE PERSONS BETWEEN WHOM TRANSACTIONS ARE CARRIED ON ARE ASSESS ED TO TAX. THEY ARE CLOSE RELATIVES AND THEY HAVE COMMON ACCOUNTANTS. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT DUE TO TECHNICAL AND BONA-FIDE MISTAKE AN ENTRY OF RS.2,68,500/- WAS PASSED IN THE BOOKS OF ACCOUN T OF SONU UDYOG AND SONU ENTERPRISES WHEREAS NEITHER THE CASH WAS REQUIRED T O RECEIVE NOR REQUIRED TO PAY UNDER THE ACCOUNT OF BOTH THE PARTIES. THE LD. AUTHORIZED REPRESENTATIVE ITA NOS.87/AGRA/2013 112/AGRA/2013 A.YS.2006-07 3 SUBMITTED THAT SMT. GEETA CHHAPARIA PROPRIETOR OF S ONU ENTERPRISES WAS SUFFERING FROM CANCER AND SHE UNFORTUNATELY PASSED AWAY ON 02.08.2006 AFTER TAKING LONG TREATMENT. THE ENTRIES RELATED TO THE P ERIOD ARE OF THE TIME WHEN BOTH OF THEM, NAMELY, SRI S.S. CHHAPARIA AND LATE S MT. GEETA CHHAPARIA WERE ALIVE. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SU BMITTED THAT THE A.O. HAS ALSO MADE ADDITION WHILE MAKING ASSESSMENT FOR RS.2 ,68,500/- AS UNEXPLAINED CASH CREDIT. THE ASSESSEE FILED APPEAL BEFORE THE C IT(A). THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE ACCEPTING ASSESSEES CON TENTION THAT THIS WAS SIMPLY TECHNICAL AND BONA-FIDE ERROR. THE RELEVANT FINDING S GIVEN BY THE CIT(A) IN QUANTUM MATTER VIDE HIS ORDER DATED 29.06.2009 IS A S UNDER:- (PAPER BOOK PAGE NO.21) IT WAS EXPLAINED THAT SONU ENTERPRISES IS ALSO ASSESSED TO INCOME TAX. SIMILAR ENTRIES ARE APPEARI NG IN THE A/C OF SONU ENTERPRISES IN THE A/C OF THE APPELLANT BOTH THE A/CS ARE AUDITED. BOTH ARE ASSESSED TO INCOME TAX. THIS APPEARS TO BE A BONAFIDE TECHNICAL MISTAKE FROM REC ORDS ONLY LEADING TO NO OTHER INTENTION ON SUPPRESSION OF FAC TS. HOWEVER, THE A.O. HAS NOT ACCEPTED A MISTAKE AND IN STEAD MADE THE ADDITION. THIS ADDITION IS MADE U/S 68. IN CASE THE DEPOSITOR IS ASSESSED TO TAX AND HIS DEPOSIT TO THE TOTAL OF RS.98,85,118/- AGGREGATE ARE ACCEPTED THEN IT IS NO T CLEAR AS TO WHY RS.2,68,500/- SHOULD NOT BE ACCEPTED WHEN CORRESPONDING ENTRIES IN BOTH THE BOOKS ARE AVAILAB LE. IN ADDITION TO THIS ADVANCE FROM SONU ENTERPRISES A/C THROUGHOUT THE YEAR IS ACCEPTED BUT FOR RS.2,68,500/- IS NOT R ELIED DOES ITA NOS.87/AGRA/2013 112/AGRA/2013 A.YS.2006-07 4 NOT HOLD ON GOOD GROUND. THE DIFFERENCE HAS COME FR OM SONU ENTERPRISES AS THE CLAIM OF THE A.O. IS THE SAME A/ C. IT APPEARS GENUINE MISAKE AS THESE 2 ENTRIES OF DEBIT AND CREDIT ARE IN CASH AND OTHERS ARE BY CHEQUE. THE COMPUTER MAY HAVE LEFT OUT THE CASH ENTRIES. THE A.O. HAS INITIA TED PROCEEDINGS U/C 271D AND 271E IT THERE IS ANY DEFAU LT THESE PROVISIONS WILL TAKE CARE OF THE SAME. SUCH HUMAN E RROR AND MISTAKE DO HAPPEN AND COMPUTER COMMAND MAY HAVE MIS SED THIS CASH ENTRY BUT THE SOURCE FROM WHERE IT ORIGIN ATES IS SATISFACTORILY EXPLAINED AS BONAFIDE. EVEN THE A.O. HAS ACCEPTED OTHER CREDITS FROM THE SAME PARTY. HENCE T HIS ADDITION OF RS.2,68,500/- IS HEREBY DELETED. 6. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THOUGH THE REVENUE HAS FILED APPEAL AGAINST THE SAID ORDER OF THE CIT(A) BEFORE THE ITAT, AGRA BENCH AGRA IN ITA NO. 410/AGR./2009, THE REVENUE DID NOT TAKE GROUND AGAINST THE DELETION OF THE ADDITION OF RS.2,68,500/-. 7. THE LD. D.R., ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE CIT(A). 8. WE HAVE HEARD LD. REPRESENTATIVES OF THE PARTIES AND RECORDS PERUSED. THE ADMITTED FACTS OF THE CASE ARE THAT TH E ENTRY PERTAINING TO RS.2,68,500/- IN THE BOOKS OF ACCOUNT OF SONU UDYOG AND SONU ENTERPRISES WHEREIN THE ASSESSEE AND HIS WIFE WERE RESPECTIVELY PROPRIETORS OF THE FIRM. ON ACCOUNT OF BONA-FIDE TE CHNICAL MISTAKE AND ITA NOS.87/AGRA/2013 112/AGRA/2013 A.YS.2006-07 5 HUMAN ERROR WHICH POSSIBLY HAPPENS AND COMPUTER COM MAND MAY HAVE MISSED THIS CASH ENTRY. THIS IS A ADMITTED FACT AS FINDING GIVEN BY THE CIT(A) IN QUANTUM MATTER AND FINDING OF THE CIT(A) DID NOT CHALLENGE BY THE REVENUE. 9. THE PENALTY UNDER SECTION 271D AND 271E ARE LEVI ABLE IN CONTRAVENTION OF SECTIONS 269SS AND 269T IF A PERSO N TAKES OR ACCEPTS ANY LOAN OR DEPOSIT IN CONTRAVENTION OF THE PROVISI ONS OR REPAY SUCH LOAN OR DEPOSIT. IN THE CASES UNDER CONSIDERATION, THE A PPARENT AND TECHNICAL MISTAKE IN ACCOUNTS DOES NOT AMOUNT TO LOAN OR DEPO SIT AS REQUIRED UNDER SECTIONS 269SS AND 269T OF THE ACT. THEREFORE, THE PENALTY UNDER SECTION 271D AND 271E IS NOT LEVIABLE. EVEN OTHERWI SE ALSO, PENALTY UNDER SECTIONS 271D AND 271E IS NOT LEVIABLE, UNDER THE CIRCUMSTANCES WHERE THERE IS A REASONABLE CAUSE UNDER SECTION 273 B. THE A.O. WHILE MAKING ASSESSMENT DID NOT ACCEPT GENUINE LOAN OR DE POSIT AND MADE ADDITION, THOUGH IT WAS DELETED BY THE CIT(A). THE FINDING OF THE CIT(A) HAS BEEN ACCEPTED BY THE REVENUE. THUS THE A.O. CAN NOT TAKE DOUBLE STANDARD WHILE TAKING A VIEW DIFFERENT IN DIFFERENT PROCEEDINGS FOR MAKING ASSESSMENT AND FOR LEVYING PENALTY. CONSIDER ING THIS FACT AND ITA NOS.87/AGRA/2013 112/AGRA/2013 A.YS.2006-07 6 FINDING GIVEN BY THE CIT(A) WHILE DECIDING APPEAL O N MERIT, THE BONA- FIDE OF THE ASSESSEE CANNOT BE DOUBTED. WE, THEREFO RE, ARE OF THE VIEW OF THAT PENALTY IS NOT LEVIABLE. WE, ACCORDINGLY, CANC EL THE PENALTY OF RS.2,68,500/- LEVIED UNDER SECTION 271D AND PENALTY OF RS.2,68,500/- LEVIED UNDER SECTION 271E OF THE ACT. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTA NT MEMBER AMIT/ COPY OF THE ORDER FORWARDED TO:- APPELLANT/RESPONDENT/CIT (APPEALS) CONCERNED CIT CONCERNED/D.R., ITAT, AGRA BENCH, AGRA GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY