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Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by revenue is directed against the order of ld. Commissioner of Income Tax (Appeals)-49, [CIT(A)], Mumbai in appeal No. CIT(A)- 49/IT-185 & 186/2015-16 dated 30.01.2017 for Assessment Year 2012-
The revenue has raised the following grounds of appeal: i. “On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty of Rs. 47,67,09,864/- levied u/s 271D of the Income Tax Act, 1961 on the ground that genuineness of the transaction made through journal entries is not in doubt.” ii. “On the facts and in the circumstances of the case and in law, the Ld. CIT(A) having held that the assessee had contravened the provisions of section 269SS of the Income Tax Act, 1961, ought to have upheld the levy of penalty u/s 271D as the assessee failed to establish the compelling reasons or genuine business constrains or reasonable cause for having Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
transactions in respect of each and every journal entry with its group concern.” 2. At the outset of hearing, the ld. Authorized Representative (AR) of the assessee submits that the grounds of appeal raised by the revenue are covered by the decision of Tribunal in assessee’s group case in Brightgold Construction Pvt Ltd in ITA No. 2582/Mum/2017. The ld AR for the assessee invited our attention on the order of ld. CIT(A) and would submit that while passing the impugned order, the ld. CIT(A) passed the combined order in case of M/s Vardhvinayak Township Development Pvt. Ltd. (assessee) and Bright Gold Construction Pvt. Ltd. The revenue filed two separate appeals before the Tribunal challenging the order of ld. CIT(A) dated 30.01.2017. In case of Bright Gold Construction Pvt. Ltd., the Tribunal vide its order dated 24.07.2019 in has affirmed the order of ld. CIT(A). The ld. AR of the assessee, thus, submits that the grounds of appeal raised by assessee are in fact covered in favour assessee.
3. The ld. AR of the assessee further submits that on similar set of fact, the Tribunal in various other cases of group concern deleted the similar penalty levied under section 271D/271E. The ld. AR of the assessee also furnished the copy of order dated 30.07.2018 in ITA Nos. 139 to 142, 110, 111/M/2017 in CIT Vs Lodha Construction( Dombiwali), ITA No.135/M/2017 in DCIT Vs Lodha Building & Construction Pvt Ltd, in ITA No. 6602 to 6604/M/2016 in Lodha Construction Pvt Ltd, ITA No. 2 Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
6605- 6602/M/16 in Lodha Facilities Management Ltd, and again in to 6617/M/2016 & ITA No. 597, 614/M/2017 and other ( total 40 appeals) in Lodha Builders (P) Ltd and its group cases dated 31.01.2020.
4. The ld. AR of the assessee further submits that the Tribunal while passing the order followed the decision of jurisdictional High Court in CIT vs. Triumph International Finance (India) Ltd. [ITA No. 5746/2010 dated 12.06.2012 and in CIT vs. M/s. Ajitnath Hi-Tech Builders Pvt. Ltd. [ITA No. 171/2015, CIT vs. Lodha Properties Development Pvt. Ltd. [ITA No. 17215], CIT vs. Lodha Crown Buildmart Pvt. Ltd. & Ors dated 06.02.2018. The revenue challenged the order of Hon’ble Bombay High Court by way of Special Leave Petition (SPL) before the Hon’ble Supreme Court, which has been dismissed vide order dated 06.02.2018, copy of which is also filed on record. The 5. On the other hand, the ld. Departmental Representative (CIT-DR) for the revenue after going through the various orders of Tribunal, decision of Hon’ble Bombay High Court and the order of Hon’ble Apex Court dated 06.02.2018 submits that on similar issues against the levy of penalty under section 271D/271E, the assessee has got relief from Tribunal, Bombay High Court and the SPL of the revenue has been dismissed by Hon’ble Apex Court. The ld. DR submits that he strongly relied upon the order of Assessing Officer. 3 Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
6. We have considered the submission of both the parries and perused the order of lower authorities. We have also gone through the various decisions of co-ordinate bench of Tribunal as well as Hon’ble jurisdictional High Court in assessee’s group case and the order passed by Hon’ble Apex Court. We have noted that the ld. CIT(A) while passing the impugned order passed the combined order on common set of fact in case of assessee as well Brightgold Construction Pvt. Ltd. The revenue filed separate appeal before the Tribunal in Brightgold Construction Pvt. Ltd. on similar set of fact and the co-ordinate bench of Tribunal in its order dated 24.07.2019 in affirmed the order of ld. CIT(A) and dismissed the appeal of the revenue.
7. For appreciation of fact the complete order of co-ordinate bench is extracted below:
“This appeal by the Revenue is arising out of the order of the Commissioner of Income Tax (Appeals)]-49, in short CIT(A), in appeal No. CIT(A)-49/IT-185 & 186/2015-16, dated 30.01.2017. The Assessment was framed by the Additional Commissioner of Income Tax, Range-7, Mumbai (in short DCIT/ITO/ AO) for the A.Y. 2012-13 vide order dated 28.09.2015, under section 143(3) of the Income-tax Act, 1961 (hereinafter 'the Act'). The penalty under dispute was levied by Addl. CIT, Central Range-7, Mumbai under section 271D of the Act vide order dated 28.09.2015.
The only issue in this appeal in this appeal of Revenue is against the order of CIT(A) deleting the penalty levied by the additional CIT central range, Mumbai under sections 271 D of the Act for accepting in cash loan/ deposit/ transactions made through journal entries in excess of ₹20,000/-in violation of the provisions Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
of section 269SS of the Act by holding that the genuineness of transactions made through journal entries is not in doubt and consequently there is a reasonable cause for accepting in cash loan/ deposit/ transactions made through journal entries in excess of ₹20,000/-. For this Revenue has raised the following two grounds: - "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the penalty of Rs. 16,21,83,648/- levied under section 271D of the Income Tax Act, 1961 on the ground that genuineness of the transaction made though journal entries is not in doubt.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) having held that the assessee has contravened the provisions of section 269SS of the Income Tax Act, 1961, ought to have upheld the levy of penalty under section 271D as the assessee failed to establish the compelling reasons or genuine business constraints or reasonable cause for having transactions in respect of each and every journal entry with its group concerns."
We noted facts that the Addl. CIT levied the penalty under section 271D of the Act for violation of the provisions of section 269SS of the Act for accepting loans / deposits from Suryoday Buildwell & Farms Pvt. Ltd. amounting to Rs. 16,21,83,648/-. However, the CIT(A) considered the provisions of section 273B of the Act held that neither the genuineness of receipts of loans or deposit by way of adjustment through book entries carried out in the normal course of business has been doubted in the regular assessment and there is a reasonable cause exist in the case of the assessee because in view of the decision of Hon'ble Bombay High Court in the case of CIT Vs Triumph International Finance (I) Ltd (2012) 345 ITR 270 (Bom.), the same was delivered only on 12.06.2012 and on that date Hon'ble Bombay High Court has clarified the position that the receiving of deposits or loans through journal entries would certainly be hit by the provisions of section 269SS and 269T of the Act. According to CIT(A), prior to the decision of Hon'ble Bombay High Court in the case of Triumph International Finance (I) Ltd (supra) (date of pronouncement of judgment 12.06.2012) there is a reasonable cause as explained by the assessee. The assessee explained that prior to this date there were decisions in favour of assessee in the following cases: - Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
(i) Hon'ble Delhi High Court in the case of CIT vs. Noida Toll Bridge Co. Ltd. [2003] 262 ITR 260 (Delhi) rendered on 28.01.2003. (ii) Hon'ble Rajasthan High Court in the case of CIT vs. Hissaria Bros. [2007] 291 ITR 244 (Rajasthan) rendered on 21.07.2006. (iii) Order of Co-ordinate Bench of this Tribunal in the case of CIT vs. Triumph International Finance (I) Ltd. in dated 29.01.2008. (iv) Order of Co-ordinate Bench of this Tribunal in the case of Muthoot M. George Bankers vs. ACIT [1993] 46 ITD 10 (Cochin), dated 16.04.1993.
Aggrieved, now Revenue is in appeal before Tribunal.
We have heard this appeal of Revenue. We have heard the rival contentions and gone through the facts and circumstances of the case. Admittedly, the assessee has accepted loan/ deposits from various sisters concerns through journal entries otherwise then account payee cheque or draft in excess of ₹ 20,000/- in violation of the provisions of section 269SS.
We noted that the assessee claimed the journal entries pointed out by the AO and during penalty proceedings by the Addl.CIT, are not loan or deposits of money in view of explanation (III) to section 269SS of the Act, which gives the definition of loan or deposit for the purpose of this section. The learned Counsel for the assessee relied on the Bombay High Court decision in the case of assessee's group concerns in the case of CIT vs. Lodha Properties Development Pvt. Ltd. in of 2015 and others, wherein the Hon'ble High Court exactly on similar circumstances and transactions arising out of the same group of companies deleted the penalty by holding that the assessee has reasonable cause under section 273B of the Act for entering into such transactions through journal entries for the reason that the decision of Hon'ble Bombay High Court in the case of Triumph International Finance (I) Ltd, the same was delivered only on 12.06.2012 and on that date Hon'ble Bombay High Court has clarified the position that the receiving of deposits or loans through journal entries would certainly be hit by the provisions of section 269SS and 269T of the Act as under: - Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
"(d) We find that the impugned order of the Tribunal has on application of the test laid down for establishment of reasonable cause, for breach of Section 269SS of the Act by this Court in Triumph International Finance (supra) found that there is a reasonable cause in the present facts to have made journal entries reflecting deposits. The Tribunal while relying upon the order of this Court in Triumph International Finance (supra) has held that in the present facts, neither the genuineness of receipt of loans / deposits by way of an adjustment through journal entries carried out in the ordinary course of business has been doubted in the regular assessment proceedings. It held in the present facts the transaction by way of journal entries was undisputedly done to raise funds from sister concerns, to adjust or transfer balances to consolidate debts, to correct clerical errors etc. Further, the Tribunal records that as observed by this Court in Triumph International Finance (supra) that journal entries constituted a recognized modes of recording of transactions and in the absence of any adverse finding by the authorities that the journal entries were made with a view to achieve purposes outside the normal business operations or there was any involvement of money, then, in these facts there was a reasonable cause for not complying with Section 269SS of the Act.
(e) Mr. Mohanty's submission that the test laid down in Triumph International Finance (supra) will have no application in the present facts in view of the large number of entries in this case as compared to only one entry in the case before this Court. The test of reasonable cause cannot, in the present facts be determined on the basis of the number of entries. If there was a reasonable cause for making the journal entries, then, the number of entries made, will not make any difference. Besides, on facts, the Tribunal was satisfied with the reasons given by the Assessee for reasonable cause and this finding is not shown to be perverse. Finally, the issue of there being a reasonable cause or not is an issue of fact. No inference of law and / or issue of interpretation is to be made. The decision relied upon by the Revenue in case of Premier Breweries Ltd.(supra) concerned itself with the issue of a claim for deduction under Section 37 of the Act on the basis of the Agreements entered into between the parties. The inference of law in that case was whether on the Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd. facts, it could be inferred that the claim for deduction is in respect of expenditure incurred wholly and exclusively for the purposes of the business. Thus, it would involve a question of interpretation of the agreements etc. from which an inference is to be drawn. Further, it also involves application of principles of law to the facts for the purposes of deductions and, therefore, it would lead to a question of law. Therefore, the Court held in the facts of that case that a question of law does arise.
(f) In this case, the issue of reasonable cause is an inference of fact from facts and, therefore, a question of fact. The Supreme Court decision in Sree Meenakshi Mills Ltd. Vs. Commissioner of Income Tax, 31 ITR 28 had laid down the tests to determine a question of law and / or fact. In the above context, the Court observed that when the finding is one of fact, the fact that it itself is an inference from other basic facts, will not alter its character as one of fact. Therefore, the issue of there being reasonable cause or not, is a question of fact and unless it is shown to be perverse, we would normally not interfere.
(g) In the above circumstances, the view taken by the Tribunal on the facts before it, is a possible view and does not give rise to any substantial question of law."
In view of the judgement of Hon'ble Bombay High Court in the case of Lodha developers Pvt. Ltd (supra) and the decision of Hon'ble Bombay High Court in the case of Triumph International Finance (I) Ltd (supra) dated 12-06- 2012, wherein it is held that where loan / deposit has been repaid by day to day accounts of the parties through journal entries, it must be held that the assessee has committed default for the contravention of provisions of section 269SS or 269T as the case may be. But the Hon'ble Bombay High Court has clarified the position with effect from 12.06.2012 date when the judgement was pronounced and prior the date of decision of Hon'ble Bombay High Court in the case of Triumph International Finance (I) Ltd (supra) there was a reasonable cause for the assessee to receive deposit of loan or repayment of the same through journal entries. Accordingly, the assessee's case is squarely falls under a reasonable cause under section 273B of the Act and therefore, in our view, penalty levied 8 Mum 2017-M/s Vardhvinayak Township Development Pvt. Ltd.
by the addl. CIT under section 271D of the Act has rightly been deleted by CIT(A). Hence, we confirm the order of CIT(A) and this issue of Revenue's appeal is dismissed.
In the result, the appeal of Revenue is dismissed. Order pronounced in the open court on 24.07.2019.”
Considering the decision of Tribunal in assessee’s group case on similar set of fact, moreover, the ld. CIT(A) passed the combined order in case of assessee as well as in Brightgold Construction Pvt. Ltd. (supra).
Therefore, respectfully following the order of coordinate bench, we do not find any merit in the grounds of appeal raised by revenue.
In the result, appeal of the revenue is dismissed.