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Income Tax Appellate Tribunal, “C’’ BENCH : BANGALORE
Before: SHRI N.V VASUDEVAN, VICE PRESIDNET & SHRI B.R BASKARAN
IN THE INCOME TAX APPELLATE TRIBUNAL “C’’ BENCH : BANGALORE BEFORE SHRI N.V VASUDEVAN, VICE PRESIDNET AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER
ITA No.2323/Bang/2018
Assessment year : 2007-08
Sri Rajiv Manharlal Duseja, Vs. The Asst. Commissioner of Income-tax No.39, Nanjappa Road, Circle-2(1), Shanthinagar, Bangalore. Bangalore-560 027. PAN – ADJPD 9123 D.. APPELLANT RESPONDENT
Appellant by : Ms. Preethi S Patel, Advocate Respondent by : Dr. P.V Pradeep Kumar, Addl. CIT (DR)
Date of hearing : 04.04.2019 Date of Pronouncement : 04.06.2019
O R D E R Per B.R Baskaran, Accountant Member
The assessee has filed this appeal challenging the order dated 14-06-2018 passed by Ld CIT(A)-7, Bengaluru confirming the penalty of Rs.2.20 lakhs levied by the Additional Commissioner of Income tax in assessment year 2007-08 for taking cash loans in violation of provisions of sec.269SS of the Act.
We heard the parties and perused the record. The AO, while completing the assessment u/s 143(3) r.w.s. 254 of the Act noticed
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that the assessee has taken following loans in cash, which was in violation of provisions of sec. 269SS of the Act:- Smt. Indira Meghraj - 1,20,000 Shri Manohar Duseja - 1,00,000 --------------- 2,20,000 ========== Shri Manohar Duseja was father of assessee and Smt. Indira Meghraj was his paternal aunt. The penalty proceedings u/s 271D was initiated by Ld Addl. CIT.
Before Addl. CIT, the assessee stated that the loans were not taken at a time and the same was taken instalments. It was submitted that the assessee was under the belief that the provisions of sec.269SS of the Act would be attracted only if the borrowings made in cash at each stage exceeds the limit of Rs.20,000/-. It was further submitted that the loans have been taken from family members and accordingly reliance was placed on the following decisions to contend that the loan transactions between family members would not attract provisions sec. 269SS:- (a) Mohan Karkare Vs. DCIT (1995)(127 Taxation 104) (b) CIT vs. T.S.Rengarajan (Order dated 24-02-2005) However, the Ld Addl. CIT was not convinced with the contentions of the assessee and accordingly levied penalty of Rs.2,20,000/- u/s 271D of the Act. The Ld CIT(A) also confirmed the same.
Aggrieved, the assessee has filed this appeal before us.
We notice that the co-ordinate bench of Tribunal has considered an identical issue in the case of Smt. Deepika vs. Addl
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CIT (ITA No.561/Bang/2017 dated 13.10.2017) and held that the transactions between family members would not attract penalty u/s 271D of the Act. For the sake of convenience, we extract below the operative portion of the order passed by the Co-ordinate bench in the above said case:-
“7. We have considered the rival submissions. The facts as decided by ITAT Kolkata in the case of Dr.B.G.Panda were that loan transactions were carried out in cash in violation of the provisions of Sec.269SS of the Act between husband and wife. On the question of levy of penalty u/s.271D of the Act, the Tribunal held as follows :-
"Section 269SS is applicable to the deposits or loan. It is true that both in the case of a loan and in the case of a deposit, there is a relationship of debtor or creditor between the party giving money and the party receiving money. In the case of deposit. the delivery of money is usually at the instance of the giver and it is for the ITA No.561/Bang/2017 benefit of the person who deposits the money and the benefit normally being the earning of interest from the party who customarily accepts deposit. In the case of loan it is the borrower at whose instance and for whose needs the money is advanced. The borrowing is primarily for the benefit of a borrower although the person who lends the money may also stand to gain thereby earning interest on the money lent. In the instant case, this condition was not applicable because there was no relationship of the depositor or a creditor as no interest was involved. This was neither a loan nor a deposit. At the same time. the words 'any other person' are obviously a reference to the depositor as per the intention of the Legislature. The communication/transaction between the husband and wife are protected from the legislation as long as they are not for commercial use. Otherwise, there would be a powerful tendency to disturb the peace of families. to promote domestic broils, and to weaken or to destroy the feeling of mutual confidence which is the most enduring solace of married life.
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In the instant case, the wife gave money to husband for construction of a house which was naturally a joint venture for the property of the family only. This transaction was not for commercial use. The amount directly received by the husband. i.e .. the assessee. was to the extent of Rs. 17.000 only and the balance amount of Rs. 26.000 was given by payment directly to the supplier of the material required for the construction of the house. Though the expenditure was apparently incurred by the husband being the karta/head of the family, it could not be said that the wife could not have any interest of her own in this house being constructed. The transaction was neither loan nor any gift as no 'interest' element was involved and there was no promise to return the amount with or without interest. It was clear that the money given by the wife was a joint venture of the family. Taking into consideration overall facts and circumstances of the case, it could be said that the aforesaid piece of legislation was not applicable in the instant case. By taking the liberal view and applying the golden rule of interpretation, the assessee had a reasonable cause within the meaning of section 27 3B. Therefore. the penalty should be deleted.
In the case of ACIT Vs. Vardaan Fashion (2015) 60 Taxmann.com 407 (Delhi-Trib.) it was held that where the Assessee intended to purchase a property jointly for which assessee's wife had advanced a sum of money to assessee and when deal for purchase of such house ITA No.561/Bang/2017 property did not materialize, assessee refunded said amount through cheque to his wife. On the question whether acceptance of cash by husband from his wife would amount to taking of loan or advance in strict sense of section 269SS , the tribunal held that it cannot be construed as loan attracting provisions of Sec.269SS of the Act and therefore no penalty under section 271D could be levied.
The Income-tax Appellate Tribunal, Amritsar Bench, in the case of ITO v. Tarlochan Singh [2003] 128 Taxman 20 (Mag) was concerned with a case where the husband had taken the
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cash of Rs. 70,000 from his wife for the purpose of investment in the acquisition of immovable property. The Assessing Officer had levied the penalty under section 271D which was cancelled by the Income-tax Appellate Tribunal holding as under :
"Even keeping in view the contents of the Departmental Circular No. 387 [1985] 152 ITR (St.) 1), it was never the intention of the Legislature to punish a party involved in a genuine transaction. Therefore, by taking a liberal view in the instant case, the assessee had a reasonable cause within the meaning of section 273B. Thus, keeping in view the entire facts of the instant case, and also keeping in view the intention of the Legislature in enacting the provisions of section 269SS, it was to be held that the assessee was prevented by sufficient cause from receiving the money by an account payee cheque or account payee bank draft. In the instant case, the assessee was of the opinion that the amount in question did not require to be received by an account payee cheque or account payee draft. Thus, there was a reasonable cause and no penalty should have been levied. From the above, it would be clear that the assessee had taken plea that firstly there was no violation of the provisions of section 269SS. Secondly, there was a reasonable cause. Thirdly, the assessee was under the bona fide belief that he was not required to receive the amount otherwise than by an account payee cheque or account payee draft. As an alternative submission, it was contended that the default could be considered either technical or ITA No.561/Bang/2017 venial breach of the provisions of law and, therefore, no penalty under section 271D was leviable. In view of the above discussion, no penalty under section 271D was leviable. It is well-settled that penalty provision should be interpreted as it stands and, in case of doubt, in a manner favourable to the taxpayer. If the court finds that the language is ambiguous or capable of more meaning that the one, then the court has to adopt the provision which favours the assessee,
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more particularly where the provisions relate to the imposition of penalty. In view of the above, the penalty sustained by the Commissioner (Appeals) was cancelled."
The ratio of the above decision of the Income-tax Appellate Tribunal, Amritsar Bench, would be squarely applicable to the facts of the assessee's case. Here also, the daughter and member of the HUF have given money for certain specific purpose. The source and genuineness of the loan has been accepted by the AO. The cash loans in question therefore cannot be said fall within the mischief of Sec.269SS of the Act as near relatives cannot be said to be "Other person" within the meaning of Sec.269SS of the Act. In any event in the circumstances of the case, there was reasonable cause for accepting loans in cash.
In the case of CIT v. Sunil Kumar Goel [2009] 315 ITR 163/183 Taxman 53 , the Hon'ble Punjab and Haryana High Court held as under :
"A family transaction, between two independent assessees, based on an act of casualness, specially in a case where the disclosure thereof was contained in the compilation of accounts, and which had no tax effect, established 'reasonable cause' under section 273B of the Act. Since the assessee had satisfactorily established 'reasonable cause' under section 273B of the Act, he must be deemed to have established sufficient cause for not invoking the penal provisions of sections 271D and 271E of the Act against him. The deletion of penalty by the Tribunal was valid."
That the ratio of the above decision of the hon'ble Punjab and Haryana High Court would also be squarely applicable in respect of cash transaction between the assessee and his near relatives.
In the case of M.Yeshodha 351 ITR 265(Mad), the Hon'ble Madras High Court held that transaction of loan between
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father in law and daughter in law in cash cannot be subject matter of levy of penalty u/s.271D of the Act.
In the light of the aforesaid judicial pronouncements, we are of the view that imposition of penalty u/s.271D of the Act cannot be sustained. The same is directed to be deleted. The appeal of the Assessee is allowed.”
In the instant case also, we have noticed that the assessee has taken loan from his father and paternal aunt, who are family members. We notice that the co-ordinate bench has followed the decision rendered by Hon’ble Punjab & Haryana High Court in the case of Sunil Kumar Goel (supra), wherein it has been held that the family transactions would fall within the meaning of “reasonable cause” u/s 273B of the Act. Further the Hon’ble Madras High Court has cancelled the penalty in respect of loan transactions between father in law and daughter in law in the decision of M.Yesodha (supra). The decision rendered in the case of Smt. Deepika was followed by another co-ordinate bench in the case of Shri Sanmathi Ambanna (ITA No9.782/Bang/2017 dated 02-01- 2019). Accordingly, consistent with the view taken by the co- ordinate bench in the case of Smt. Deepika (supra), which has been rendered by following various decisions of High Courts and Tribunal, we hold that the impugned penalty of Rs.2.20 lakhs is not sustainable. Accordingly we set aside the order passed by Ld CIT(A) and direct that the penalty be deleted.
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In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court on 4th June, 2019.
Sd/- Sd/- (N.V Vasudevan) (B.R Baskaran) Vice President Accountant Member
Bangalore, Dated, 4th June, 2019. / vms / Copy to: 1. The Applicant 2. The Respondent 3 . The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order
Asst. Registrar, ITAT, Bangalore.
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Date of Dictation ……………………………………… 2. Date on which the typed draft is placed before the dictating Member ……………………. 3. Date on which the approved draft comes to Sr.P.S .……………………………. 4. Date on which the fair order is placed before the dictating Member ……………….. 5. Date on which the fair order comes back to the Sr. P.S. ………………….. 6. Date of uploading the order on website…………………………….. 7. If not uploaded, furnish the reason for doing so ………………………….. 8. Date on which the file goes to the Bench Clerk ………………….. 9. Date on which order goes for Xerox & endorsement…………………………………… 10. Date on which the file goes to the Head Clerk ……………………. 11. The date on which the file goes to the Assistant Registrar for signature on the order ………………………………. 12. The date on which the file goes to dispatch section for dispatch of the Tribunal Order …………………………. 13. Date of Despatch of Order. ……………………………………………..