Dr.Yatin Kantilal Shah, Surat v. The Income tax Officer,Ward-5(4),, Surat

ITA 1219/AHD/2010 | 2006-2007
Pronouncement Date: 31-08-2010 | Result: Allowed

Appeal Details

RSA Number 121920514 RSA 2010
Assessee PAN AGUPS7915C
Bench Ahmedabad
Appeal Number ITA 1219/AHD/2010
Duration Of Justice 4 month(s) 11 day(s)
Appellant Dr.Yatin Kantilal Shah, Surat
Respondent The Income tax Officer,Ward-5(4),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-08-2010
Assessment Year 2006-2007
Appeal Filed On 19-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MUKUL KUMAR SHRAWAT JUDICIAL MEMBER) ITA.NO.1219 /AHD/2010 [ASSTT. YEAR : 2006-2007] DR.YATIN KANTILAL SHAH NR.LIBRARY NANPURA SURAT 395 001. PAN : AGUPS 7915 C VS. ITO WARD-5(4) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N.VEPARI REVENUE BY : SHRI ANIL KUMAR O R D E R PER G.D. AGRAWAL VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV SURAT DATED 24.02.2010 ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 271D OF THE INCOME TAX ACT 1961. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASS ESSEE IS AGAINST THE CONFIRMATION OF PENALTY OF RS.2 40 000/- LEVIED BY THE AO UNDER SEC TION 271D OF THE INCOME TAX ACT. 3. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT THE ASSESSEE IS A DOCTOR BY PROFESSION. HE IS ALSO KARTA OF HUF. THAT DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDER ATION AGRICULTURE LAND OF THE HUF WAS SOLD FOR WHICH THE SALE CONSIDERATION OF RS.2 40 00 0/- WAS RECEIVED IN CASH AND RS.2 50 000/- BY CHEQUE. THE ASSESSEE DEPOSITED TH E CASH RECEIVED FROM SALE PROCEEDS OF THE AGRICULTURE LAND OF HUF IN HIS BANK ACCOUNT BE CAUSE THE HUF DID NOT MAINTAIN ANY BANK ACCOUNT. THAT THE CIT(A) CONFIRMED THE PENALT Y ON THE GROUND THAT THE DETAILS OF THE TRANSACTIONS ARE NOT SUBMITTED AND THE OWNERSHI P OF THE TITLE OF THE LAND OF THE ASSESSEE IS NOT PROVED. IT IS SUBMITTED BY THE LEA RNED COUNSEL THAT BEFORE THE AO ALL THOSE DETAILS WERE SUBMITTED AND THE AO HAVING DULY SATIS FIED DID NOT MAKE ANY ADDITION FOR ITA.NO.1219 /AHD/2010 2 UNEXPLAINED CREDIT. THAT BEFORE THE CIT(A) THE IS SUE WAS NOT OF THE CASH CREDIT BUT OF PENALTY. THEREFORE LIMITED ARGUMENT RAISED BEFORE HIM WAS WHETHER THE PENALTY UNDER SECTION 271D CAN BE LEVIED ON THE RELEVANT FACTS OR NOT. THE LEARNED COUNSEL STATED THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT VS. SHREE AMBICA FLOUR MILLS CORPN. 6 DTR (GUJ) 169 AND ALSO BANGALORE B BENC H OF THE TRIBUNAL IN THE CASE OF ACIT VS. D. SUDHAKAR & ANR. 19 DTR (BANG) (TRIB) 2 76. 4. THE LEARNED DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW: 5. WE HAVE CONSIDERED THE ARGUMENTS OF BOTH THE SID ES AND THE FACTS OF THE CASE. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SH REE AMBICA FLOUR MILLS (SUPRA) UPHELD THE ORDER OF THE TRIBUNAL CANCELLING THE PENALTY WH EN THERE WERE TRANSACTION BETWEEN THE SISTER CONCERNS. THE RELEVANT FINDINGS OF THEIR LO RDSHIPS ARE AS UNDER: 7. IN THE APPEAL FILED BY THE ASSESSEE THE TRIBUN AL HAS COME TO THE CONCLUSION THAT IN LIGHT OF THE FACTS RECORDED IN PARA NO.7 OF THE ORDER THE TRANSACTIONS BETWEEN SISTER CONCERNS ARE NOT COVERED BY EITHER P ROVISIONS OF S. 269SS OR S. 269T OF THE ACT. IT HAS FURTHER BEEN HELD THAT IT IS A COMMON TRADING PRACTICE FOR PARTIES TO MAKE PAYMENT ON BEHALF OF EACH OTHER TO SISTER CONCERN. THAT THE PROVISIONS OF S. 269SS AND S. 269T OF THE ACT HAVE BEEN BROUGHT ON STATUTE BOOK WITH A SPECIFIC INTENTION OF CURBING BLACK MONEY AN D TAKING ADVANTAGE OF CASH TRANSACTION FOR EXPLAINING THE CASH AVAILABLE DURIN G THE SEARCH. THE TRIBUNAL HAS THEREFORE CONCLUDED THAT THE DEFAULT IF ANY IS O F A VENIAL NATURE AND NO PENALTY CAN BE IMPOSED. 8. IN THE AFORESAID SET OF FACTS AND CIRCUMSTANCES OF THE CASE IT IS APPARENT THAT THE TRIBUNAL HAS MERELY APPRECIATED THE FACTS AND EVIDENCE ON RECORD. THERE IS NO EVIDENCE TO COME TO THE CONCLUSION THAT SUCH APPRECIATION OF FACTS AND EVIDENCE IS NOT CORRECT OR IS PERVERSE. THEREFORE THE IMPUGNED ORDER OF THE TRIBUNAL IN RELATION TO DELETION OF PENALTY UNDER S . 271D AND S. 271E OF THE ACT DOES NOT CALL FOR ANY INTERFERENCE. 9. ACCORDINGLY ALL THE FOUR QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE THAT IS IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE BANGALORE BENCH OF ITAT IN THE CASE OF D. SUDHA KAR & ANR. (SUPRA) HELD THAT THE PAYMENT MADE BY HUF TO ITS KARTA OR BY A MEMBER TO THE HUF CANNOT BE CONSTRUED AS REPAYMENT OF LOAN OR DEPOSIT SO AS TO ATTRACT PENAL TY PROVISIONS OF S. 271E. THAT THE ITA.NO.1219 /AHD/2010 3 ABOVE DECISION WOULD BE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. THE AMOUNT WAS RECEIVED BY THE ASSESSEE FROM THE HUF OF WHICH HE H IMSELF WAS KARTA . AGRICULTURE LAND OF HUF WERE SOLD BY THE HUF FOR A SUM OF RS.4 90 00 0/-. THE BUYER MADE THE PAYMENT OF RS.2 40 000/- IN CASH AND RS.2 50 000/- BY CHEUQ E. IN THE ASSESSEES BOOKS FOR ACCOUNTING PURPOSE THE AMOUNT WAS CREDITED IN THE ACCOUNT OF HIS HUF. MERELY BECAUSE THE ASSESSEE CREDITED THE SALE PROCEEDS OF THE LAND OF HIS HUF IN HIS BOOKS OF ACCOUNTS IT CANNOT BE SAID THAT THERE WAS LOAN TAKEN BY ASSESSE E IN VIOLATION OF SECTION 269SS SO AS TO ATTRACT THE PENALTY UNDER SECTION 271D. IN VIEW OF THE ABOVE WE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT AS WELL AS ITATS BANGALORE BENCH CANCEL THE PENALTY LEVIED UNDER SECTION 271D. 6. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST AUGUST 2010. SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 31-08-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD