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आदेश/Order
The present appeal has been preferred by the assessee against the order dated 22.01.2019 of the Commissioner of Income Tax (Appeals), Palampur [hereinafter referred to as ‘CIT(A)’].
The assessee in this appeal has taken following grounds of appeal:- 1. That the Ld. CIT(A) has erred in law & facts of the case in not complying with the directions of Hon'ble ITAT in not adjudicating the issue regarding the validity of penalty order passed u/s 271D of the income Tax Act which is highly unjustified and uncalled for.
ITA No. 396-CHD-2019- Shri Onkar Soni, Mandi 2 2. That the Ld. CIT(A) has erred in law & facts of the case in upholding the penalty imposed u/s 271D amounting to Rs. 7,00,000/.- which is highly unjustified and uncalled for.
That the appellant craves leave to add, amend or modify any ground of appeal on or before the disposal of the same.
The sole issue raised by the assessee in this appeal is against the
action of the Ld. CIT(A) in confirming the levy of penalty of Rs. 7
lacs levied by the Assessing Officer u/s 271D of the Income Tax Act,
1961 (in short 'the Act').
It is pertinent to mention here that earlier the assessee had
preferred appeal before the Tribunal against the order of CIT(A) dated
27.1.2017 agitating the confirmation of levy of impugned penalty. The
Tribunal vide order dated 11.8.2017 remanded the matter back to the file
of the CIT(A) for decision afresh. The Ld. CIT(A) again confirmed the
penalty so levied by the Assessing Officer vide impugned order dated
22.01.2019, hence, the assessee is again in appeal before this Tribunal.
At the outset, Ld. Counsel for the assessee has invited our
attention to the provisions of section 269SS of the Act, as were
applicable for the assessment year under consideration, allegedly in
violation of which the Assessing Officer has levied the impugned
penalty. The Ld. Counsel for the assessee has submitted that the
assessee had received amount of Rs. 7 lacs, in cash, as against advance
for the sale of property. That subsequently section 269SS of the Act
ITA No. 396-CHD-2019- Shri Onkar Soni, Mandi 3 making prohibition for receipt of advance against property has been
introduced w.e.f. 1.6.2015. That prior to 1.6.2015, there was no
prohibition in receiving advances in cash against sale of property. The
Ld. Counsel has further invited our attention to the statement dated
27.11.2009 of the payer namely Shri Ram Pal Malik recorded by the
Assessing Officer during the assessment proceedings. In his statement
Shri Ram Pal Malik has duly confirmed that he had paid the amount of
Rs. 7 lacs for purchase of property to the assessee. Even the copy of the
agreement to sell duly notarized by the Notary Public was also produced
before the Assessing Officer. The Assessing Officer considering the
statement of Shri Ram Pal Malik, which was corroborated with the copy
of agreement to sell dated 1.2.2007, did not make any addition into the
income of the assessee in this respect. However, later on, the penalty
proceedings u/s 271D of the Act have been initiated by the JCIT
treating the said amount as loan received in cash and he accordingly
held that the assessee had violated the provisions of section 269 SS of
the Act and thereby imposed penalty u/s 271D of the Act.
Before the Bench, the Ld. Counsel for the assessee contended that
the assessee had duly proved the factum of receipt of the aforesaid
money in cash as advance against the sale of property and also pleaded
that the sale deed of the property, however, was effected in the name of
the father of payer namely Shri Sunder Lal. He also produced the copy
of the sale deed in this respect. However, the Ld. CIT(A) did not agree
with the contention of the assessee observing that there was a long delay
ITA No. 396-CHD-2019- Shri Onkar Soni, Mandi 4 between the date of receipt of money in the year 2007 and the execution
of sale deed in the year 2014.
I have heard the rival contentions of the Ld. Authorized
Representatives of both the parties. The fact which emerges from the
file is that there is no denial or rebuttal of execution of agreement to
sell by the assessee with Shri Ram Pal Malik corroborated with the
statement of Shri Ram Pal Malik recorded on 27.11.2009 by the
Assessing Officer during assessment proceedings. It is also an important
fact on the file that the Assessing Officer did not doubt the veracity of
the statement of Shri Ram Pal Malik and, therefore, did not make
addition either to the income of the assessee or into the income of Shri
Ram Pal Malik in respect of the said amount of Rs. 7 lacs received by
the assessee in cash from Shri Ram Pal Malik. Shri Ram Pal Malik
duly confirmed in his statement that the said amount was given by him
in cash to the assessee as advance against sale of property. Penalty
proceedings u/s 271D of the Act were initiated much after i.e. in the
year 2014 by the JCIT, hence, it cannot be said that the said
agreement to sell or the averments made in the statement recorded of
Shri Ram Pal Malik on 27.11.2009 was an afterthought or afterwards
created evidences. Since the assessee has duly established, even prior to
the initiation of penalty proceedings about the transaction of receipt of
advance in cash against the sale of property and there was no provision
of section 269SS in the statute, as it stood during the relevant period.
ITA No. 396-CHD-2019- Shri Onkar Soni, Mandi 5 In view of this, there is no justification on the part of the lower
authorities in levying penalty u/s 271D of the Act.
So for as the observations of the Ld. CIT(A) that the sale deed
was executed after a long time, in my view, is not relevant as the sale
deed was finally executed or not. One may find many instances where
agreement to sell is executed between the parties but finally for one
reason or the other, the sale deed could not be executed. Since during
the assessment proceedings and prior to the initiation of penalty
proceedings, the assessee had duly proved the execution of agreement to
sell and receipt of advance thereof, hence, in my view, there is no
justification on the part of the lower authorities either in levying or in
confirming the penalty. The same is accordingly ordered to be deleted.
The appeal of the stands allowed.
Order dictated and pronounced in the Open Court immediately on
completion of hearing.
Sd/-
(संजय गग� / SANJAY GARG) �या�यक सद�य/ Judicial Member Dated : 07.11.2019 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
ITA No. 396-CHD-2019- Shri Onkar Soni, Mandi 6
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar .