ITO, Aurangabad v. M/s. Raghuvir Motor Agencies Pvt. Ltd., Aurangabad

ITA 236/PUN/2009 | 2004-2005
Pronouncement Date: 27-08-2010 | Result: Allowed

Appeal Details

RSA Number 23624514 RSA 2009
Assessee PAN AACCR6166K
Bench Pune
Appeal Number ITA 236/PUN/2009
Duration Of Justice 1 year(s) 6 month(s) 11 day(s)
Appellant ITO, Aurangabad
Respondent M/s. Raghuvir Motor Agencies Pvt. Ltd., Aurangabad
Appeal Type Income Tax Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 27-08-2010
Assessment Year 2004-2005
Appeal Filed On 16-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 236/PN/2009 (ASSTT. YEAR : 2004-05) INCOME TAX OFFICER WD-1(1) AURANGABAD . APPELLANT V. M/S. RAGHUVIR MOTOR AGENCIES PVT. LTD. ADALAT ROAD AURANGABAD SHRI BHAGWAN G HASABNIS 1/11 ANAND PARK NEAR OLD OCTROI NAKA CHINCHWADGAON PUNE 411 033 PAN: AACCR6166K . RESPONDENT APPELLANT BY : SHRI ABHAY DAMLE RESPONDENT BY : SHRI. NILESH KHANDELWAL ORDER PER D. KARUNAKARA RAO AM THIS APPEAL BY THE REVENUE IS FILED AGAINST THE ORDE R OF THE CIT(A)- AURANGABAD DT. 20/11/2008 FOR THE A.Y. 2004-05. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER : IN THE FACTS & CIRCUMSTANCES OF THE CASE THE LD.C IT(A) HAS 1. ERRED IN HOLDING THAT THE TRANSACTION MADE THROU GH CURRENT ACCOUNT IS NEITHER LOAN NOR DEPOSIT SIMPLY FOR THE REASON THAT INTEREST HAD NOT BEEN PAID BY THE COMPANY ON SUCH DEPOSITS. 2. FAILED TO APPRECIATE THAT THE ASSESSEE ITSELF HA S SHOWN THE RECEIPT OF MONEY AS UNSECURED LOAN IN THE NAME OF DIRECTORS IN THE BOOKS OF THE COMPANY WHEREAS FOR THE PURPOSE OF PENALTY PROCEED INGS IT IS CLAIMING TO BE TRANSACTIONS MADE THROUGH CURRENT ACCOUNT WITHOUT A NY BASIS. 3. ERRED IN HOLDING THAT PROVISIONS ARE NOT APPLICA BLE TO GENUINE TRANSACTIONS WHEN NON-GENUINE TRANSACTIONS ARE REQU IRED TO BE ADDED U/S 68 OF THE ACT. 4. ERRED IN HOLDING THAT MENS REA WAS ABSENT FOR MAKING CASH TRANSACTIONS WHEN THE MONEY COULD HAVE EASILY BEEN T RANSFERRED ELECTRONICALLY IN THE PRESENT ERA. 2. AT THE VERY OUTSET THE LD. COUNSEL FOR THE ASSESS EE MENTIONED THAT THIS IS THE CASE WHERE ASSESSEE ACCEPTED THE CASH LOANS/DEPOSITS OF RS. 20 000/- OR MORE IN VIOLATION OF THE PROVISION OF SECTION 269-SS AS WELL AS 269-T. A.O. LEVIED PENALTY OF RS.5 74 852/- U/S. 261-D OF THE INCOME TAX ACT. FU RTHER THE A.O ALSO LEVIED ITA NO 236/PN/2009 RAGHUVIR MOTOR AGENCIES A.Y.2004-05 2 PENALTY U/S. 271E AMOUNTING TO RS.5 37 500/-. AT T HE OUTSET LD COUNSEL FILED THE COPY OF THE ORDER OF THE TRIBUNAL VISAKHPATNAM BENCH I N THE CASE OF EMESKAY FINANCIAL SERVICES LTD. 128 TTJ 474 FOR THE PROPOSIT ION THAT COLLECTING CASH AND ALSO REPAYMENT ON THE PERSONS WITHOUT BANK ACCOUNT CAN C ONSTITUTE A REASONABLE CAUSE FOR A PERIOD OF THREE YEARS FROM THE DATE OF STARTING UP OF THE BUSINESS AS ASSESSEE IS IN NEED TO ESTABLISH ITS GOOD-WILL TO MOBILIZE D EPOSITS; PENALTY U/S. 271E AND 271D ARE NOT LEVIABLE IN SUCH CASES. 3. LD D.R. FOR THE REVENUE MENTIONED THAT THE ASSESS EE DID NOT RAISE THIS ARGUMENT BEFORE THE REVENUE AUTHORITIES THEREFORE THE MATTER HAS TO BE SET ASIDE TO THE FILES OF THE A.O. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF T HE REVENUE AND THE SAID ORDER OF THE TRIBUNAL OF THE VISAKHAPATNAM BENCH . LD D.R. FOR REVENUE STATED THAT THIS ARGUMENT IS TAKEN FIRST TIME BEFORE US. FURT HER IT IS NOTICED THAT THE RECORDS WHICH IS AVAILABLE BEFORE US DOES NOT SPEAK OF THE DATE OF INCORPORATION OF THE COMPANY AND COMMENCEMENT OF THE BUSINESS OF THE COMPANY AND WHETHER IT FALLS WITHIN THE PERIOD OF THREE YEARS FROM THE START OF BUSINESS AS MENTIONED IN THE SAID ORDER OF THE TRIBUNAL. IT IS ALSO NOT CLEAR WHET HER DEPOSITORS HAVE BANK ACCOUNTS AND THE SOURCE OF INCOME OF SUCH DEPOSITORS AND WHITHER THEY ARE AGRICULTURISTS/HOUSEWIVES ETC. . CONSIDERING THE ABSE NCE OF THE BASIC FACTS REQUIRED FOR THE ADJUDICATION OF THE APPEAL WE ARE OF THE OP INION THAT THE REQUEST OF THE D.R. IS TO BE CONSIDERED FAVOURABLY. ACCORDINGLY THE MATTER IS SET ASIDE TO THE A.O FOR DECIDING THE ISSUE AFRESH AFTER TAKING IN TO ACCOU NT THE EXISTING DECISIONS IN THE SUBJECT INCLUDING THE ONE REFERRED TO ABOVE. A.O IS TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY THE GROUND S ARE SET ASIDE. 5. IN THE RESULT REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH DAY OF AUG UST 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 27TH AUGUST 2010 ITA NO 236/PN/2009 RAGHUVIR MOTOR AGENCIES A.Y.2004-05 3 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- AURANGABAD 4. THE CIT(A)- AURANGABAD 4. THE D.R. A BENCH PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE