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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
आदेश / O R D E R भहावीय स िंह, उऩाध्मक्ष के द्वाया / PER MAHAVIR SINGH, VP: This appeal of assessee is arising out of the order of the Commissioner of Income Tax (Appeals)]-55, Mumbai, [in short CIT(A)], in dated 15.05.2019. The assessment was framed for the A.Y. 2013-14 vide order dated 29.03.2016 under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’). The penalty was levied by the Jt.
2. The only issue in this appeal of assessee is as regards to the order of CIT(A) confirming the levy of penalty under section 271D of the Act in regard to cash loan received from mother amounting to Rs. 3 lacs in violation of provision of Section 269SS of the Act. For this assessee has raised the following ground Nos.1 to 4:-
“1. The impugned penalty order is illegal, invalid and void-ab0initio as the same is passed without issuing proper notice under section 274.
On the facts, in the circumstances of the case and law, the learned Commissioner of Income Tax Appeals (CIT-A) ahs erred in sustaining the penalty of Rs.3,00,00 levied by the learned Assessing Officer on temporary, personal advances received from mother in which case provisions of sec 269SS were not applicable.
3. Without prejudice to other grounds, if the temporary advances received from mother were consider as loans or deposits, the same were accepted by the appellant under a bonafide belief that tere was no contravention of sec 269SS , so the penalty may not be levied.
4. The appellant craves leave to add, amend, alter delete, change or modify all or any of the
None is present from assessee’s side. Revenue is represented by Shri Vidhyadhar V learned Sr. DR.
We have heard the learned Sr. DR and gone through the facts and circumstances of the case. Briefly stated facts are that the Assessing Officer during the course of assessment proceedings noticed that the assessee has received, a sum of Rs. 3 lacs in cash from his mother Mrs. Krishna Agarwal, in violation of the provision of Section 269SS of the Act. Hence, the Assessing Officer initiated the penalty proceedings. During the course of penalty proceedings, the JCIT-Range- 20(3), Mumbai levied the penalty despite the assessee’s explanation vide letter dated 16.05.2016 which read as under:-
“The impugned notice propose to levy penalty u/s 271D in respect of loan given to Mrs. Krishna Agarwal for Rs. 3,00,000/-. In this connection we draw your kind attention to the fact that the assessee has not given any loan to Mrs. Krishna Agarwal. So, the impugned notice is factually wrong. However, the assessee has received temporary advances of Rs. 3,00,000/- from his mother Mrs. Krishna Agarwal by provision of Section 269SS of the Income Tax Act, 1961 are not applicable in view of the facts & circumstances of the case discussed herein after.
The cash of Rs. 3,00,000/- (three lacs) was given by mother to the assessee for safe custody of the money. The son had accepted the sum for helping his mother and having a safe custody of the money. We enclose herewith a copy of cash book which clearly shows that money received from mother was not used by the assessee for more than a month. Thus no loan or deposits were accepted by the assessee from his mother, Mrs. Krishna Aarwal, however, temporary advanced were given by mother to his son for safe custody, so provision of Sec. 269SS were not applicable to these transactions.
The CIT(A) also confirmed the action of the Assessing Officer in levying penalty under section 271D of the Act for violation of provision of Section 269SS in accepting cash of ₹ 3 lacs from mother as a loan.
Aggrieved, now assessee is in appeal before Tribunal.
We noted that the assessee has received cash loan from mother of the assessee namely Mrs. Krishna Agarwal. It was claimed by the assessee that this is a temporary advances by the mother to her son as per her own finance without there any business necessity for accepting the loans or advances from any one for the business of the assessee. We noted that this advance or loan of Rs. 3 lacs in cash is between blood relations i.e. mother and son. The mother has given this loan of Rs.3 lacs to her son. We have gone through one of the decision of Hon’ble Madras High Court in the case of CIT v. M. Yesodha (Smt). (2013) 351 ITR 265 (Mad.), wherein it is held as under:-
“7. We have carefully considered the submissions of learned standing counsel appearing for the appellant and the learned counsel appearing for the assessee.
Under Section 273B of the Income Tax Act, on 'reasonable cause' being shown, no penalty shall be imposable. As rightly pointed out by the learned counsel appearing for the assessee, in
To substantiate the plea that her father-in-law had advanced the amount as cash gift, the assessee's father-in-law had filed an affidavit before the Commissioner of Income Tax (Appeals). Regarding the affidavit, remand report was called for from the Assessing Officer. In the remand report, the Assessing Officer has doubted the nature of transaction. In our considered view, in the light of the relationship between the assessee and her father-in-law, the Tribunal has rightly held that the genuineness of the transaction is not disputed, in which, the amount has been paid by the father-in-law for purchase of property and the source had also been
Referring to the decision reported in [2006] 283 ITR 329 (Mad) (CIT V. Kundrathur Finance and Chit Co.), this Court in the decision reported in [2008] 303 itr 99 (Mad) (Commissioner of Income Tax V. Lakshmi Trust Company), held as follows:
"In the instant case, the Commissioner of Income-tax (Appeals) and the Appellate Tribunal found on the facts that the transactions were genuine and the identity of the lenders was also satisfied. The Appellate Tribunal also upheld the order of the Commissioner of Income-tax (Appeals) that there was no intention on the part of the assessee to evade the tax.
Once the said finding as to the genuineness of the transactions is arrived at by the Tribunal on the facts, following the decision of this Court in CIT v. Ratna Agencies [2006] 284 ITR 609, wherein it was held that the finding recorded by the Tribunal in this regard is a finding of fact and Sd/- Sd/- (ए रयफ़ौय यहभान / S RIFAUR RAHMAN) (भहावीय स िंह /MAHAVIR SINGH) (रेखा दस्म / ACCOUNTANT MEMBER) (उऩाध्मक्ष / VICE PRESIDENT) भुिंफई, ददनािंक/ Mumbai, Dated: 17.03.2021 ुदीऩ यकाय, व. ननजी चिव/ Sudip Sarkar, Sr.PS