Dr. Kalpana Sunil Vaid, Vadodara V. The Joint Commissioner of Income Tax, Range-1(3), Vadodara

MA 48/AHD/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7708 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-04-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 14-02-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 271D; 254(2); 64

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Ms. Suchitra Kamble, Judicial Member Dr. Kalpana Sunil Vaid, Tapovan Society, Nizampura, Vadodara-390002 Ahmedabad PAN: AAUPV7449Q (Appellant) Vs The Joint Commissioner of Income Tax, Range-1(3), Vadodara (Respondent) Assessee by: Ms. Kinjal Shah, A.R. Revenue by: Ms. Saumya Pandey Jain, Sr. D.R. Date of hearing : 12-04-2024 Date of pronouncement : 24-04-2024 आदेश/ORDER This Miscellaneous Application u/s. 254(2) of the Income Tax Act, 1961 is filed by the assessee in respect of order dated 20-12-2023 passed by the Tribunal. 2. The ld. A.R. in the Miscellaneous Application has submitted and taken contentions as follows:- M.A. No. 48/Ahd/2024 (In ITA No. 583/Ahd/2022) Assessment Year 2015-16 M.A. No. 48/Ahd/2024 (In I.T.A No. 583/Ahd/2022) A.Y. 2015-16 Page No. Dr. Kalpana Sunil Vaid vs. JCIT 2 “On facts of the case: 1. The Appellant is a gynecologist surgeon a Partner in the Firm of M/s. Kalpana Hospital alongwith her husband a gynecologist also. The Appellant had filed Return of Income on 30-8-2015 declaring total income of Rs.35,35,230/- which was taken up for Limited Scrutiny under CASS and notices were issued as para 3.1 of the Assessment Order passed u/s.143(3) dated 10-11-2017 by Dy.CIT. Circle 1(3), Baroda. Since there was no Addition to Income the Appellant was not required to File Appeal to CIT(A) u/s. 246(i)(a). However the AO made a note in Asst. Order that there is violation of Sec.269SS on the ground that in the Capital Account of the Assessee had made excess withdrawal of capital of Rs. 8,71,471/- thereby leading to debit balance. This transactional behavior of the Assessee with the firm was held by Assessing Officer in the nature of "loan". Therefore the ITO concluded the assessee has violated the provisions of 269SS of the Income-Tax Act 1961 and the case was referred to Jt.CIT Range 1(3) for necessary action regarding acceptance of loan taken in cash of Rs.20,000/- or more. 2. In this connection, in view of above facts, the Jt. Comm. of Income-tax, Range 1(3) issued notice u/s. 271D dated 20-11-2017 and after considering the facts of the case passed order u/s. 271D dated 24-4-2018 treating the transaction as considering the withdrawal as loan covered u/s. 269SS and Penalty of Rs. 8,71,471/- was levied u/s. 271D of the Act. Against this order your Appellant filed Appeal on 11-5-2018 to CIT(A) u/s.246(i)(a) being specific provision of filing Appeal against order of Penalty u/s. 271D. 3. On above facts of the case the Hon. Tribunal in para 8 has come to the conclusion as under which is erroneous as per your Appellant for which Miscellaneous Application is filed. "From the perusal of records, it appears that the original assessment and the observations made therein was never challenged by the assessee before the CIT(A) as well as before the Tribunal or any other forum which is available as per the income-tax statute to the assessee. Thus, the assessee at the penalty stage cannot take the plea that Section 269SS is not violated. In fact, the assessee has made excess withdrawal capital of Rs.8,71,471/- thereby leading to debit balance and thus withdrawal was for purchase of personal property. The assessee were paid interest to the forum in the event of occurrence of debit of capital and thus transactional behavior of the assessee with the firm has been given colour of that nature of loan. Thus .the Assessing Officer has rightly observed that the assessee has violated the provisions is 269SS of the Income Tax Act, 1961." 4. Your Appellant submits that above conclusion was arrived at by the Hon. Tribunal is erroneous which goes to the root of final order dismissing the Appeal requires to be rectified for reasons stated above proving that the Appellant had rightly challenged the order of A.O. as per provision of Law. 5. Your Appellant respectfully submits that in the Assessment Order no addition was made and there was no scope or any opportunity or any reason for M.A. No. 48/Ahd/2024 (In I.T.A No. 583/Ahd/2022) A.Y. 2015-16 Page No. Dr. Kalpana Sunil Vaid vs. JCIT 3 the Appellant to challenge any observation made therein. Penalty proceedings u/s.271D arised out of alleged application of Sec. 269SS which is a separate and distinct proceedings then the Assessment Order u/s. 143(3) of the Act and hence there was no reason for the Appellant to challenge anything before the CIT(A) it being Appeal against order u/s.269SS for Penalty u/s.271D of the Act. 6. (a) In Synopsis submitted to your Honours have also not considered that the Instruction CBDT circular bearing No.387 dated 6-7-1984 which was binding on the AO and CIT(A) has not been followed for which claim was made by Appellant which is a mistake u/s. 254 as a result of which legitimate deduction as under not allowed. (b) Further in Synopsis & Submission on behalf of Appellant two binding judgement of Co-ordinate Bench of Ahmedabad Income Tax Appellate Tribunal were cited and relied which have not been dealt with and disposed off by the Hon. Tribunal which is mistake u/s.254. The two judgements were (i) ITO vs. M/s. Universal Associates - ITA No. 1349/Ahd/2010 for A.Y. 2006- 07 ITAT 'B' Bench, Ahmedabad (ii) Shrepak Enterprises vs. Dy.CIT - (1998) 64 ITD 300 (Ahd.- ITAT) /[1998] 60 TTJ 199 (Ahd - ITAT [20-5-1997) [1998] 64 ITD 300 (Ahd) -ITAT 'A' Bench, Ahmedabad. (iii). On quantum of alleged Loan in Synopsis & Submission it was point that Dr. Kalpana Sunil Vaid being Stamp Duty of Rs. 3,57,700/- paid to Rs.7.32,000/- seller Taraben Natubhai eligible to deduction of Rs. 20,000/- being first amount. Therefore mistake of Rs.3,77,700/- in quantum of Penalty has taken place which is to be rectified. Conclusion of Misc. Application. 1. The ITO had not made any addition in his Assessment Order u/s. 143(3) of the Act and therefore no Appeal was filed to CIT(A) and the claims made in the Appeal were not forming part of Asst. Order. 2. The ITO on invoking Sec. 269SS the Dy. CIT passed order of Penalty u/s.271D for alleged default Sec. 269SS against which Appeal was filed to CIT(A) and being dissatisfied Appeal was filed to Hon. Tribunal. 3. In view of above facts observation para 8 of the Order of Hon. Tribunal does not arise and all conclusions arised thereon are erroneous and requires to be rectified. 4. The AO and CIT(A) has not considered the binding Circular of Central Board of Direct Taxes bearing No. 387 dated 6-7-1984 which was agitated before your Honours but in view of above the same was not considered hence the claim of Rs. 3,77,7007-(3,57,700+20,000) was not allowed. M.A. No. 48/Ahd/2024 (In I.T.A No. 583/Ahd/2022) A.Y. 2015-16 Page No. Dr. Kalpana Sunil Vaid vs. JCIT 4 5. Since partner and Firm are not separate body transaction interse can not be termed as Loan or Deposit and sec.269SS does not apply as held in the case of CIT vs. Ramniklal Kothari (1969) 74 ITR P.57 (SC). 6. The Appellant had claimed that in view of binding judgement of Ahmedabad Tribunal Sec. 269SS does not apply since the transaction is not a loan and therefore no penalty u/s.271D is not leviable. Your Appellant respectfully submit that in view of above facts of the case mistake being apparent on record they may be rectified u/s.254(2) of the Act & relief claimed be allowed.” 2.1 The ld. A.R. further submitted that since the assessment was nil, the assessee has not filed any appeal or challenge the order of assessment and therefore the contention of the assessee that the assessee paid stamp duty to seller, Taraben is eligible deduction of Rs. 20,000/- being first amount should have been considered and section 269SS will not be in the present case. Thus, the ld. A.R. submitted that this Miscellaneous Application on record in respect of confirming the penalty u/s. 271D by the Tribunal. The ld. A.R. also pointed out the decision of Hon’ble Supreme Court in case of CIT vs. Ramniklal Kothari 74 ITR 57 (SC). 3. The ld. D.R. submitted that the assessee at this juncture is seeking a review for the order where no factual discrepancy was pointed out by the assessee and in fact the assessee is seeking review in the present Miscellaneous Application which could not be allowed. The ld. D.R. vehemently opposed the present Miscellaneous Application. M.A. No. 48/Ahd/2024 (In I.T.A No. 583/Ahd/2022) A.Y. 2015-16 Page No. Dr. Kalpana Sunil Vaid vs. JCIT 5 4. Heard both the parties and perused all the relevant materials available on record. It is pertinent to note that in para 8 of the order dated 20-12-2023, the Tribunal has not only given a finding in respect of not challenging of the assessment order by the assessee but also has given independent finding in respect of applicability of section 269SS in the present case as the said observation of the assessment order remained as it is. The penalty was imposed is u/s. 271D which clearly sets out that when the assessee violates the provisions of 269SS and could not point out the same. The assessee is liable to pay the penalty. The decision relied upon by the assessee was also considered by the Tribunal and in fact the decision which now quoted in the Miscellaneous Application was not placed at the time of hearing but the ratio after going through the same will not be applicable in the present assessee’s case as the present appeal related to penalty which is independent penalty consequential to the finalization of assessment order. The ld. A.R. could not point out any mistake apparent on record as envisaged u/s. 254(2) of the Act but is seeking review of the order dated 20- 12-2023. The Tribunal cannot review its order u/s. 254(2) of the Act and therefore the present miscellaneous application taken by the assessee is dismissed. M.A. No. 48/Ahd/2024 (In I.T.A No. 583/Ahd/2022) A.Y. 2015-16 Page No. Dr. Kalpana Sunil Vaid vs. JCIT 6 5. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on 24-04-2024 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad : Dated 24/04/2024 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद