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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI BHAGCHAND
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER
vk;dj vihy la-@ITA No. 941/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2008-09
cuke Dy. Commissioner of Vijesh Devi, Vs. Income Tax, 169, Heera Path, Sector-9, Circle-2, Jaipur Mansarovar, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFMPD 9989 G vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 36/JP/2013 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Vijesh Devi, Addl. Commissioner of Vs. 169, Heera Path, Sector-9, Income Tax, Mansarovar, Jaipur Range-2, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFMPD 9989 G vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Smt. Poonam Rai, (DCIT). fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Jain (Adv) & Shri Dev Arora (CA) lquokbZ dh rkjh[k@ Date of Hearing : 31/01/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 31/01/2017
ITA 941/JP/2012 & 36/JP/2013_ 2 DCIT Vs. Vijesh Devi vkns'k@ ORDER
PER: BHAGCHAND, A.M.
These are the cross appeals, one by the revenue and another by the
assessee arise against the order dated 16/10/2012 passed by the ld CIT(A)-
I, Jaipur for the A.Y. 2008-09, wherein the revenue as well as the assessee
has taken one ground of appeal, which are reproduced as under:-
Ground revenue’s appeal in ITA No. 941/JP/2012
“Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) was justified in reducing the penalty of Rs. 19,00,000/- imposed U/s 271D to Rs. 9,00,000/-.
Ground assessee’s appeal in ITA No. 36/JP/2013
“1. That on the facts and in the circumstances of the case, authorities below have grossly erred in law and facts in imposing/partly confirming the penalty U/s 271D of Rs. 9,00,000/- without jurisdiction/justification/basis.
Firstly we take revenue’s appeal i.e. ITA No. 941/JP/2012.
We have heard both the parties and perused the material available
on the record. It is observed that the demand/ tax effect in the Revenue in
question is only Rs. 10.00 lacs. Under the powers vested by Sec. 268A(1) of
the I T Act, CBDT has recently issued CircularNo.21 of 2015 dated
10.12.2015(F No. 279/Misc. 142/2007-ITJ(Pt) instructing the
ITA 941/JP/2012 & 36/JP/2013_ 3 DCIT Vs. Vijesh Devi
authorities below departmental appeal should not be filed before
ITAT where the demand/tax effect does not exceed Rs.10 lacs.
The circular is specifically mentioned to be applicable for all pending
appeals.
Subject to some exceptions, it is further directed by CBDT that all
the departmental appeals pending before ITAT where the demand/tax
effect is 10 lacs or less should be either withdrawn or not pressed by the
departmental representatives.
The present appeal is not covered by any exceptions mentioned in
the said CBDT circular. Since the tax demand in dispute in this
departmental appeal is below the limit set out by CBDT for the appeal the
same is not maintainable in view of fore goings. Accordingly the appeal of
the Department is dismissed as not maintainable.
In the result, appeal of revenue is dismissed.
Now we take assessee’s appeal. In this appeal, the only issue
involved is against sustaining the penalty levied U/s 271D of the Income
Tax Act, 1961 (in short the Act) of Rs. 9,00,000/-. The Addl. CIT, Range-2,
Jaipur had levied the penalty of Rs. 19,00,000/- lacs by violating the
provisions of Section 269SS of the Act.
ITA 941/JP/2012 & 36/JP/2013_ 4 DCIT Vs. Vijesh Devi
In first appeal, the ld. CIT(A) deleted the penalty of Rs. 10.00/- lacs
instead of Rs. 19.00 lacs made by the Assessing Officer on the ground that
which was received as gifts by the assessee from four persons. However,
the penalty was sustained on the advances received from three persons
namely Shri Bheruram Chaudhary, Shri Ramniwas Chopra and Shri Rajveer
Singh.
Now the assessee is in appeal before me. The ld AR has reiterated
the submissions as made before the ld. CIT(A). On the contrary, the ld DR
has vehemently supported the orders of the authorities below. She also
submitted that there is contradiction in the submissions made in the form
of affidavit at the time of quantum proceedings and penalty proceedings.
She also vehemently pleaded that these persons were located in the city
like Jaipur and there was no dearth of banking system. Therefore, these
are not covered by the exceptions where cash loans are accepted and she
also pleaded to sustain the penalty levied U/s 271D of the Act.
I have heard the rival contentions of both the parties and perused
the material available on the record. It is very pertinent to note that in the
assessment order, the Assessing Officer has taken two views regarding
these amounts. He has made addition by invoking the provisions of Section
68 of the Act treating the amount as bogus cash credits and holding the
amount as assessee’s own. On the other hand, the Assessing Officer has
ITA 941/JP/2012 & 36/JP/2013_ 5 DCIT Vs. Vijesh Devi
also invoked the provisions of Section 269SS of the Act treating the amount
as cash loans received. The relevant para in respect of Shri Ramniwas
Chopra is as under:-
“Further, assessee has taken loan of Rs. 2,50,000/- in cash, hence violated the norms as per Section 269SS of I.T. Act, 1961. Further, as clear from statement of Sh. Ram Niwas Chopra that loan was also returned back in cash, hence assessee has violated provisions of Section 269T I.T. Act, 1961. Therefore, matter is being referred to Additional Commissioner of Income Tax, Range- 2, for initiation of penalty proceedings U/s 271D and 271E of the IT Act, 1961.
Similar findings have been also recorded in the case of Shr. Bheru Ram
Choudhary and Shri Rajveer Singh. Thus, the Assessing Officer himself was
not in belief whether the amount was a bogus cash credit or it was a loan
received in cash in violation of Section 269SS of the Act. The ld AR of the
assessee in his written submissions has stated that assessee’s husband was
an Army Officer, who was declared martyr during the Kargil war and the
Government of India awarded him “Gallantry Award” posthumously and
allotted a petrol pump for her livelihood and her children in the year 2001.
But she faced lots of problems in running of petrol pump due to paucity of
funds. Therefore, her relatives helped her. In Section 269SS of the Act, it is
held that no person shall take or accept from any other person any loan or
ITA 941/JP/2012 & 36/JP/2013_ 6 DCIT Vs. Vijesh Devi
deposit or any specified sum, otherwise than by an account payee cheque
or account payee bank draft or use of electronic clearings system through a
bank account, but in the present case, the persons, who helped her, are
her relatives or neighbours, who were also agriculturists having no bank
accounts at the time of funds given. The assessee has filed an affidavit by
stating that she has received the amounts as gifts and advances. The
assessee is a widow of an Army Officer and she was not educated. The
allotment of the petrol pump was given by the Government of India but
she was not perfect in conducting the business due to illiteracy. All these
facts make a reasonable cause where the assessee should not be visited by
the penalty U/s 271D of the Act towards the loans and deposits accepted
from the known persons and close relatives in the hours of distress. Further
it is also clear from the dwell stand taken by the Assessing Officer and
further relief granted in the quantum appeal by the higher authorities that
the assessee has not adopted this procedure to avoid or evade the tax.
Therefore, considering the various case laws on this issue, no penalty
should be imposed on the assessee for contravention of Section 271D of
the Act. The above view also get supports from the various case laws relied
by the ld AR of the assessee including decision of Hon’ble Rajasthan High
Court in the case of CIT Vs. Raj Kumar Sharma (2007) 294 ITR 131 (Raj)
and decision of ITAT, Jaipur Bench in the case of Smt. Kusum Dhamani Vs
ITA 941/JP/2012 & 36/JP/2013_ 7 DCIT Vs. Vijesh Devi ADDl.CIT in ITA No. 847/JP/2011. Therefore, by considering the totality of
facts and circumstances of the case, I delete the penalty sustained by the
ld. CIT(A).
In the result, the appeal of the revenue is dismissed and appeal of
the assessee is allowed.
Order pronounced in the open court on 31/01/2017. Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 31st January, 2017
*Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- The DCIT, Circle-2, Jaipur 1. izR;FkhZ@ The Respondent- Smt. Vijesh Devi, Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 941/JP/2012 & 36/JP/2013) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत