The Ito Ward 2 Nadiad v. Shri Avinishkumar Gunvantray Joshi Nadiad

Ckh Ckh Ckh Ckh In The Income Tax Appellate Tribunal B Bench Ahmedabad Before Shri N K Billaiya Accountant Member And Shri Mahavir Prasad Judicial Member I T A Nos 2988 2989 Ahd 2014 Assessment Year 2010 11 The Income Tax Officer Ward 2 Nadiad Vs Shri Avinishkumar Gunvantray Joshi C O D P Medical General Stores Nr D P High School Santram Road Nadiad 387 001 Cross Objection Nos 311 312 Ahd 2014 Assessment Years 2010 11 Shri Avinishkumar Gunvantray Joshi C O D P Medical General Stores Nr D P High School Santram Road Nadiad 387 001 Vs The Income Tax Officer Ward 2 Nadiad Pan Gir No Abqpj 7574 B Appellant Respondent Revenue By Shri Mudit Nagpal Sr D R Assessee By Shri K C Thaker A R Date Of Hearing 18 12 2017 01 Date Of Pronouncement 19 12 2017 Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 2 2 O R D E R Per Mahavir Prasad Judicial Member These Are Two Appeals By The Revenue Alongwith T Wo Cross Objections By The Assessee Against The Order Of The Commissioner Of Income Tax Appeals Ii Baroda Dated 11 12 2013 Fo R The Assessment Years Ay 2010 11 2 First We Take Up Ita No 2988 Ahd 2017 For A Y 2 010 11 Following Grounds Has Taken By The Department In Th Is Appeal On The Facts And In The Circumstances Of The Case And In Law The Ld C I T A Has Erred In Deleting The Penalty Levied U S 271 D Of The Act Without Appreciating The Fact That The Assessee Nei Ther Produced Confirmation Letter In Support Of The Contention Th At His Father Gave Him Rs 9 60 000 To Enable Him To Settle In Life Witho Ut Any Precondition Of Repayment Nor Did The Assessee Produce Any Evidenc E To Explain That Amount Of Rs 9 60 000 Given By His Father Was Not A Loan Deposit 3 Cbdt Circular No 21 Of 2015 Dated 10 12 2015 Th E Ld Departmental At The Outset The Ld Counsel For The Assessee Submitted That The Appeal Of The Revenue Needs To Be Dismisse D On Account Of Low Tax Effect In View Of The Representative Fairly Adm Itted That The Tax Effect Is Less Than The Limit Prescribed By The Aforesaid Cbdt Circular Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 3 4 We Have Heard Both The Parties And Perused The M Aterial Available On Record We Find That Prima Facie This Appeal Of The Revenue Is Not Maintainable In View Of Cbdt Circular No 21 2015 I N F No 279 Misc 142 2007 Itj Pt Dated 10th December 2015 Vide Wh Ich It Has Been Provided That If The Tax Effect By Virtue Of The Co Mmissioner Of Income Tax Appeals S Order Is Below Rs 10 Lacs Then Th At Order Would Not Be Challenged Before The Tribunal In Further Appeal T He Board Has Provided Exemptions At Clause 8 Of The Instructions Wherei N It Has Been Provided That These Instructions Will Not Be Applicable If Vires Of Any Provisions Has Been Quashed By Impugned Order Or Addition Was Made On Some Audit Objections Or The Addition Relates To Undiscl Osed Foreign Assets Bank Accounts Etc We Find That The Present Case Does N Ot Fall Within The Exemption Clause And The Tax Is Less Than Rs 10 Lac S Therefore The Present Appeal Is Not Maintainable And Hence Dismis Sed In Limine 5 Now We Take Ita No 2989 Ahd 2014 For A Y 2010 11 Following Grounds Have Taken By The Revenue 1 On The Facts And Circumstances Of The Case And I N Law The Ld C I T A Iv Baroda Has Erred In Deleting The Penalty Levie D U S 271 E Of The I T Act Without Appreciating The Fact That Assessee Dur Ing The Course Of Penalty Proceedings Himself Admitted To Have Repaid Short Term Loan To His Father Aggregating Rs 12 90 000 2 On The Facts And Circumstances Of The Case And I N Law The Ld C I T A Iv Baroda Erred On Relying On The Affidavit Filed By The Assessees Wife During The Course Of Appellate Proceedings While De Leting The Penalty Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 4 6 The Brief Facts Of The Case Are That During The Course Of Assessment Proceeding In The Case Of Assessee For The Assessme Nt Year 2010 11 Found That The Assessee Has Repaid Loan In Cash Agg Regating To Rs 17 40 000 From Pratixaben A Joshi And Gunvant Rai M Joshi As Follows Date Amount Name 20 02 2010 Rs 4 50 000 Pratixaben A Joshi 25 01 2010 Rs 9 50 000 Gunvantrai M Joshi 14 02 2010 Rs 3 40 000 Gunvantrai M Joshi Total Rs 17 40 000 2 The Assessing Officer Observed That As The Repai D Loans In Cash In Aggregate As Mentioned Above Exceeded Rs 20 000 The Assessee Contravened The Provisions Of Consequences As Envis Aged Under The Provisions Of Section 271 E Of The Act Accordingly The Ao Referred The Case For Initiation Of Penalty U S 271 E Of The Act 3 As The Penalty Is Leviable U S 271 E Of The Act A Show Cause Notice U S 271 E Of The Act Was Issued To The Assess Ee By The Undersigned Vide Letter No Joint Cit Kr Show Cause 271 E Agj 20 12 13 Dtd 25 02 2013 Asking The Assessee To Submit His Ex Planation In This Regard Either Personally Or Through Authorized Repr Esentative On Or Before 05 03 2013 4 In Response The Above Notice The Ar Of The Asses See Attended On The Date Of Hearing I E On 05 03 2013 And Filed Th E Written Submission In This Regard Which Is Reproduce Hereunder Relevant To The Above Matter The Assessee Has Re Ceived Show Cause Notice From Your Honour Concerning To Imposit Ion Of Penalty Under Section 271 E For The Alleged Breach Of Sectio N 269 T Of The Act Hereinafter Called Act For The Sake Of Brevity The Assessee Raises Following Disputes Against The Proceedings Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 5 1 That The Conclusion Of The Assessment Has Been Made On 12 02 2013 According To Which The Undersigned Has B Een Assessed U S 143 3 R W S 147 Of The I T Act 19 61 Tax And Interest U S 234 A 234 B 234 C Is Charged Penalty Notice U S 271 1 C Of The I T At 1961 Has Been Issued Demand Notice And Challan Issued Accordingly Vide Please Last Three Lines Of Para 6 1 Of The Order U S 143 3 Dtd 12 02 2013 Initiation Of Penalty Has Not Been Proposed On Conc Lusion Of Assessment 2 What The Undersigned Has Been Done Was The Repaymen T Of The Money To The Bigger Joint Family Of Which I Am A Co Parcener Member And Administered By Shri Gunvantrai M Joshi Father Who Is Karta Of The Family The Aggre Gate Amount Of Rs 12 90 000 Was Short Loan Repaid To F Ather As Under Amounts Were Not Returnable After A Notice Or Perio D Fixed Cash Rs 9 50 000 On 25 01 2010 Cash Rs 3 40 000 On 14 02 2010 As Such The Repayment Of Loan Was Not Deposits And As Such The Same Cannot Be Hit By The Provisions Of Section 269 T Accordingly There Was No Case To Invoke The Provisi Ons Of Section 271 E 3 So Also The Payment Of Rs 4 50 000 Made To Pratix Aben A Joshi Wife Was Also Out Of Capital Of The H U F W Hich Has Been Kept By The Bigger Joint Family Of Gunvantrai Joshi Father These Were Not The Deposits But The Payme Nt Made By The Joint Family In The Form Of Married Woman P Roperty Due To Her Earlier And Which Was A Liability Of Th E Family Pending From Marriage Considering The Above Facts Circumstances Penalty Proceedings May Be Dropped Oblige 5 The Contention Of The Assessee Cannot Be Accepte D In View Of Clear Cut Provisions U S 269 T Of The Act That The Payment Of Cash Above Rs 20 000 Is Permissible Only In Certain Circumstances By Certai N Institutions Which Are Listed In The Proviso To The Section And Which Are Notified By The Central Government And In No Other Case This Has Been Permi Tted Therefore The Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 6 Assessees Contention That Unavoidable Circumstance S Do Not Attract Penalty U S 271 E Cannot Be Accepted 6 On The Basis Of The Above Discussion It Is Conc Luded That The Assessee Has Repaid Cash Deposits Exceeding Rs 20 000 In V Iolation Of Provisions Of Section 269 T Of The Act Accordingly This Is A Fit Case For Levy Of Penalty U S 271 E Of The Act The Total Payment Made In Cash As Per The Assessing Officers Report For The A Y 2010 11 Is Rs 17 40 0 00 Accordingly A Penalty Of Rs L 7 40 000 Is Levied U S 271 E Of The I T Act 1961 For The A Y 2010 2011 7 Against The Said Order Assessee Filed An Appeal Before The First Appellate Authority And Ld Cit A Allowed The Appe Al Of The Assessee 8 Now Appeal Is Before Us 9 We Have Gone Through The Relevant Record And Imp Ugned Order In This Case Assessing Officer Observed That Said Rep Aid Loan In Cash In Aggregating Was Exceeding Rs 20 000 The Assessee Contravened The Provisions Of Section 269 T Of The I T Act 1961 An D Thereby The Assessee Was Liable Penal Consequences As Envisaged Under Th E Provisions Of Section 271 E Of The Act 10 In This Case Father Of The Assessee Shri G M Joshi Has Deposited Rs 9 60 000 In Bank Account No 10424307437 These Are The Deposits By Self Which The Jt Cit Has Considered As A Repay Ment Of A Loan By The Appellant There Is Nothing On Record To Show That The Money Is A Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 7 Repayment Of Loan The Assessing Officer Was Fully Empowered To Examine The Source Of The Cash Deposits Of Rs 9 60 000 In The Account Of The Father Mr Gunvantray M Joshi But The Same Wil L Be Outside The Purview Of The Penalty For The Violation Of Section 269 T Of The Act There Is An Entry Of Rs 4 50 000 Deposited By The Appel Lant In The Axis Bank Account Which Is Jointly Held With Smt Pratixaben Joshi The Wife Of The Appellant It Is Not Clear As To How And From Where The Jt Cit Has Picked Up The Date Of 20 02 2010 On Which The Reported Rep Ayment Of Loan In Violation Of Section 269 T Of The Act Has Taken Plac E The Lady Smt Pratixaben A Joshi Who Is The Wife Of The Appellan T Has Filed An Affidavit That The Money In Question Was Received By Her From Her Father In Law And The Same Was Given To The Appellant Husband For The On Going Construction Of The House Though An Affidavit Whic H Was Filed By The Pratixaben A Joshi Is Not On Record But Statement Of Ld Ar Has Been Noted That This Fact Is Correct Clearly The Tran Saction Between A Wife And A Husband Who Was Staying Together Under The Same R Oof Is Eligible For Relaxation From The Purview Of Repayment Of Loan Et C As Provided In Section 273 B Of The Act Ld Jt Cit Has Not Given Any Source Of Loan From Where This So Called Loan Was Taken Therefore In Our Considered Opinion This Is Not A Fit Case Where Penalty Shoul D Be Levied In The Result Appeal Filed By The Department Is Dismissed Ita Nos 2988 2989 Ahd 2014 Cross Objection Nos 311 312 Ahd 2014 Asst Year 2010 11 8 11 So Far As Cross Objection Nos 311 312 Ahd 201 4 For A Y 2010 11 Are Concerned Same Are Dismissed As Not Pr Essed 12 In The Result Ita Nos 2988 2989 Ahd 2014 For A Y 2010 11 Are Dismissed And Cross Objection Nos 311 312 Ah D 2014 For A Y 2010 11 Are Also Dismissed As Not Pressed This Order Pronounced In Open Court On 19 12 2017 Sd Sd N K Billaiya Mahavir Prasad Accountant Member Judicial Member Ahmedabad Dated 19 12 2017 Priti Yadav Sr Ps Copy Of The Order Forwarded To 1 The Appellant 2 The Respondent 3 56 7 Concerned Cit 4 7 The Cit A Iv Baroda 5 89 56 561 Dr Itat Ahmedabad 6 Guard File By Order 8 True Copy Dy Asstt Registrar Itat Ahmedabad True Copy