DCIT, JAIPUR vs. SMT VIJESH DEVI, JAIPUR

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.

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.

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 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.

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

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.

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.

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).

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