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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI V.DURGA RAO & SHRI O.P.MEENA
आदेश /O R D E R
PER BENCH: 1. These nine appeals filed by the Revenue are directed against the common order passed by the Ld. Commissioner of Income Tax (Appeals)-4, Surat [in short “the CIT(A)”] dated 09.08.2017 for the assessment years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14.
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Since the facts and circumstances in all the above appeals are identical and common, except figures, therefore these appeals were heard together and being disposed off by this common order. We are taking ITA No.209/SRT/2017 for A.Y. 2010-11 as a lead case which would mutatis – mutandis apply to all other appeals as well.
Grounds of appeal raised by the Revenue in the aforesaid appeal in ITA No.209/SRT/2017 are as under : “1. Whether on the fact and circumstance of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s 271D ignoring the facts that during the course of assessment proceedings the Assessing Officer has rightly concluded from the evidences collected during the Search Proceedings in the case of Shri Piyus G Modi that the assessee had taken loan in cash? 2. Whether on the fact and circumstance of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s 271D ignoring the facts that during the course of Search Proceedings in the case of Shri Piyus G Modi statement recorded Shri Dilip C Sojitra, who categorically explained the manner in which cash loan transactions were recorded in the seized material? 3. Whether on the fact and circumstance of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s 271D ignoring the facts Penalty u/s 271D has rightly been levied after considering material seized in the case of Shri Piyus Modi and statement recorded Shri Dilip C Sojitra, who categorically explained the manner in which cash loan transactions were recorded in the seized material? 4. On the facts and circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the assessing officer. 5. It is, therefore, prayed that the order of the ld. CIT(A) may be set aside and that of assessing officer may be restored to the above extent.”
Briefly stated facts of the case are that a search action u/s.132 of the Act was carried out on 18.02.2014 in the group cases of Creative Trendz Group of Surat. During the course of search proceedings at the residence of
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Piyush Ghanshyam Modi at 14, Alkapuri Society, Sumul Dairy Road, Surat some incriminating documents related to Shri Gaurangbhai P. Upadhyay, the assessee were found and seized, hence the proceedings u/s.153C r.w.s 153A of the Act were initiated in the case of assessee. On the basis of material seized from the residence of Shri Piyush Ghanshyam Modi it was ascertained that the assessee had taken cash loan amounting to Rs.3,72,80,000/- during the year from Shri Dilip C Sojitra on various dates. Seized page no.18 of Annexure A-30 reflected with an amount of Rs.2,97,000/- as interest was charged towards amount of Rs.75,00,000/- borrowed by Shri Gaurangbhai P. Upadhyay of which was to be repaid on 31.08.2009, accordingly the Assessing Officer has calculated the interest amount by considering the rate of interest of Rs.47.52 % per annum which was aggregate at Rs.40,20,554/-, hence same was added as unexplained expenditure u/s.69C of the Act. Since the assessee has taken cash loans, therefore provisions of section 269SS r.w.s. 271D were attracted. Accordingly reference was made to JCIT, Range- 4 for passing the penalty order u/s.271D on the aforesaid amount of cash loan of Rs.3,72,80,000/-. The JCIT, Range after allowing opportunity to the assessee has levied penalty of Rs.3,72,82,000/- being equal amount of cash loan taken by the assessee u/s.271D of the Act.
Being aggrieved, the assessee carried the matter in appeal before the ld.CIT(A) in respect of quantum addition being interest payment and in response of penalty u/s.271D as well as 271E of the Act. It was contended
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before the ld.CIT(A) that CIT(A)-4 vide his appellate order dated 20.12.2016 in appeal no.CAS-4/657-659, 668 669/2015-16 has deleted the entire additions of interest expenses by holding that there is no evidence on record which show that the alleged transaction of acceptance and repayment of loan on which interest has been calculated have been done by the assessee. The ld.CIT(A) after going through the submission of the assessee observed that he has passed an appellate order in quantum appeal where it has been held by him that the assessee has relied documents recovered from a third party i.e. Shri Piyush Ghanshyam Modi for which he is changing his stand regarding the nature of documents in the statement recorded u/s.131 of the Act. Shri Dilip C Sojitra has stated that he has worked for Shri Dilip C Sojitra as an accountant. It was stated in the statement u/s.132(4) during the search proceedings at his own residence where he has stated that he had made the entries in the accounts maintained on the instruction of Shri Dilip C Sojitra. However, he has changed his stand after 22 months from the date of search and stated that he was working for a partnership firm / joint venture and that he recorded the transaction on the instruction of Shri R.R. Badhani. Even the Assessing officer has relied on the statement of Shri Dilip C Sojitra who has only stated that transactions belongs to a joint venture and he knows Shri Gaurangbhai P Upadhyay, however no attempt was made to get details of nature of transactions or detailed explanation of the entries even from Shri Dilip C Sojitra not even the identity of the Shri Gaurangbhai P Upadhyay was clearly
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not got established. In this way, even the nature of transaction have not been clarified by even the third party to even form of semblance of an evidence to statements of the persons involved have not been even relied on as true by the Department. In these circumstances, it was held by the ld.CIT(A) that the documents cannot be taken to be true in the case of a party from whom these have not been recovered. The evidentiary value of document recovered from a third party is moreover acquired and hence to be substantiated by corroborative evidence. Therefore, presumption u/s.132(4A) and section 292C is not available in the case of third party as held by the Hon'ble Delhi High Court in the case of CIT vs Anil Khandelwal [2015] 93 CCH 0042 (Del SC) and Hon'ble Bombay High Court in the case of Addl. CIT vs. Miss Lata Mangeshkar (1974) 97 ITR 0696. The ld.CIT(A) further observed that the Assessing Officer has added alleged interest payment of two different accounts, namely Shri Gaurangbhai P Upadhyay account and Shah and Singhvi account, however he has convincingly ignored that according to the ledgers made by him, two accounts were running simultaneously for substantial period in 2009 and 2010 which are clearly without any other evidence or statement. Therefore, this should be taken to represent two different entities. In view of these aforesaid circumstances, it was concluded by the ld.CIT(A) that the Department’s case is based on documents that too acquired from a third party who is changing his stand on whose instructions these were written. Another third party, namely Shri Dilip C Sojitra, without admitting that the
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transactions are true, but who has not deciphered the transactions. Shri Dilip C Sojitra’s stands was that these transactions were entered into by the joint venture or partnership firm, which has been rejected by the Department. Where the meaning given to the documents by the Assessing Officer evidences were not stands to the test of basic common sense and logic, therefore the Department’s opinion is built on surmise and conjectures, hence the addition of alleged expenditure as interest payment was therefore held to be unjustified and directed to be deleted. In view of foregoing, the ld.CIT(A) in respect of penalty proceedings held that the JCIT has not brought out any new evidence or argument on the merits of the case. The charge of loan allegedly taken and repaid in cash has not been established with the department’s stand which is based on the document that too acquired from a third party who is changing his stand and not stated that on whose instructions these were written, another third party suffers from the test of basic common sense and logic in absence of the basic allegations has not been proved, therefore all the mentioned penalties imposed u/s.271D & 271E for the above captioned appeals were directed to be deleted.
Being aggrieved, the Revenue has filed this appeal against the order of ld.CIT(A) deleting the additions u/s.271D and 271E of the Act. The ld.CIT- DR and ld.Sr.DR placing reliance on statement of facts submitted by the Assessing Officer with appeal memo, submitted that the ld.CIT(A) deleted the penalty relied upon his decision in the case of the assessee in the quantum
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proceedings for the year under consideration. The decision of ld.CIT(A) has not appreciated the facts in proper manner. During the statement Shri Dilip C Sojitra has confessed that he knew Shri Gaurangbhai C Upadhyay transactions done with whom were recorded in the books of AUM joint venture. The ld.CIT(A) ignored the fact that the material seized from the residence of Shri Piyush G Modi clearly mentioned the name of Shri Gaurangbhai P Upadhyay who had explained that seized material belong to joint venture in which Shri Dilip C Sojitra and others were partners. Therefore, the ld.Departmental Representatives have heavily relied on the orders of JCIT, Central Range.
On the other hand, the ld.Counsel for the assessee submitted that the quantum addition made on account of interest charge in respect of cash loan taken repaid has been deleted by ld.CIT(A) in quantum appeal on the ground that the departments case was based on documents which were acquired from the third party who is changing its stand that on whose instructions these were written. Another third party, namely Shri Dilip C Sojitra asserting that the transaction should be true but he has not deciphered the transactions. Shri Dilip C Sojitra’s stands that these transactions were entered into by joint venture or partnership has been rejected by the department itself and therefore the meaning given the Assessing Officer to these documents suffers from test of basic common sense and logic, therefore the very basis of that cash loans were repaid taken stands deleted in the appeal, hence no penalty
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u/s.271D and 271E is survived. The ld.Counsel further submitted a copy of order of ITAT in ITA No.132 to 136/Ahd/2017/SRT dated 06.09.2018 wherein these five appeals of the Revenue filed against the common order of ld.CIT(A)-4, Surat dated 20.12.2016 were dismissed on account of Low Tax Effect involved therein. Hence, ld.ICT(A) order has become final. Since the order of ld.CIT(A) has become final, therefore the ld.CIT(A) following the finding given by him in respect of quantum additions which led to imposition of penalty u/s.271D and 271E stands affirmed by the Tribunal. Therefore, penalty imposed u/s.271D or 271E in respect of all the assessee under appeal are rightly deleted by the ld.CIT(A).
We have heard the rival submissions and perused the material available on record. We have also gone through the assessment order and penalty order in the assessment years under consideration. It is observed that the addition of interest payment u/s.69C was made on account of documents seized from third party which were reflected some cash loans transactions i.e. receipts and payments. However, these documents were not found from the possession of the assessee. Therefore, presumption u/s.132 (4A) as well as u/s.292C is not available in the case of the assessee. Further, the statement on which the Assessing Officer has based his findings has not been found to be acceptable due to changing stand of the parties concern which are also third party. Further, the transactions were not found to be true as these were not deciphered by the persons from whose possession these were recovered.
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Therefore, the charge of the Assessing Officer that loans were rightly taken and repaid in cash has not been established. The ld.CIT(A) has given this clear-cut findings in quantum appeal in the case of assessee against which the appeal is also dismissed at the level of ITAT. Hence, ld.CIT(A)’s order has attained finality in the quantum proceedings. Therefore, just because the assessee has business relations with a persons (not even the person from whom the documents were recovered) nor it is proved that unsubstantiated entry found recorded in the similar name is true and belongs to the assessee. We are therefore inclined to agree with the findings recorded by the ld.CIT(A) in penalty proceedings that no corroborative or substantive evidence has been brought on record to suggest that the assessee has taken any loan in cash or repaid any loan in cash and done the transactions reflected in the seized material recovered from third party. Therefore, considering the totality of the facts, we find no reason to deviate from findings recorded by the ld.CIT(A). Accordingly the appeal of the Revenue in respect of penalty u/s.271D and 271E is dismissed. Consequently, all the grounds of appeal of the Revenue as reproduced above are dismissed.
ITA No’s.208, 210 to 216/SRT/2017 for A.Y. 2009-10, 2011-12, 2012-13, 2013-14 in respect of penalty u/s.271D and 271E: 9. Since we have considered the facts in the lead case in ITA No.209/SRT/2017 for A.Y. 2010-11 and the facts for other assessment years in respect of penalty u/s.271D and 271E are same and identical, hence
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following our reasoning and upholding the findings of the ld.CIT(A), all the appeals for aforesaid captioned assessment years by the Revenue are accordingly dismissed.
In the result, all the above captioned appeals of the Revenue are dismissed.
The Order pronounced in the open court on 12.07.2019 Order + Sd/- Sd/- (V.DURGA RAO) (O.P.MEENA) (�याियकसद�यतथा/JUDICIAL MEMBER) (लेखासद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 12th July, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat