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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH & SHRI RAMIT KOCHAR
Revenue by : Shri. S.K. Mitra , DR सुनवाई की तारीख /Date of Hearing : 05.09.2018 घोषणा की तारीख /Date of Pronouncement : 24.10.2018 आदेश / O R D E R
PER RAMIT KOCHAR, Accountant Member:
This appeal, filed by assessee, being 30.06.2016 passed by learned Commissioner of Income Tax (Appeals)-26, Mumbai (hereinafter called “the CIT(A)”), for assessment year 2009-10, the appellate proceedings had arisen before learned CIT(A) from penalty order dated 03.03.2014 passed by learned Assessing Officer (hereinafter called “the AO”) u/s 271D of the Income-tax Act, 1961 (hereinafter called “the Act”) for AY 2009-10.
This appeal has been filed late by the assessee by 183 days beyond the time stipulated u/s 253(3) of the 1961 Act . The assessee has filed application praying for condonation of delay of 183 days which is supported by an affidavit dated 27.02.2017 executed by deponent- assessee, Mrs. Nazima Akbar Kazi. The assessee has submitted in her aforesaid application and affidavit praying for condonation of delay that the assessee had handed over appellate order dated 30.06.2016 passed by Ld. CIT(A) to her erstwhile CA Ms. Divya Chandramouli who was handling her tax matters for taking further steps but unfortunately the said CA did not file an second appeal with the tribunal .It was submitted that she was made by her said CA to pay 15% of penalty amount in order to get the balance amount of demand stayed by Revenue . It was averred in said affidavit that she was under a bonafide belief that necessary steps were been taken by her erstwhile CA , Ms Divya Chandramouli. It is submitted in her application and also in affidavit that later when Revenue initiated prosecution against the assessee u/s 276C of the 1961 Act , she got alerted and assigned the job related to her tax-matters to new counsels . It is averred in affidavit that the prosecution proceedings were dropped by Revenue but the new counsel invited attention of assessee that appeal is required to be filed with the tribunal against the appellate order dated 30.06.2016 passed by learned CIT(A). It was submitted that the assessee was not aware of these procedures and then after being advised by new tax-counsels she took out order of learned CIT(A) dated 30.06.2016 from the files which took time to retrieve and then the appeal was filed with tribunal which is late by 183 days beyond the time stipulated u/s 253(3) of the 1961 Act for which prayers are made to condone the same. The learned DR objected to condonation of delay in filing this appeal with tribunal by the assessee late by 183 days beyond the time prescribed in statute as filing of an appeal is a statutory right arising from statute itself which provided time limit for filing appeal with tribunal.. 3. We have gone through the content of application supported with affidavit dated 27.02.2017 filed by the assessee praying for condonation of delay in filing this appeal with tribunal late by 183 days beyond the time stipulated u/s 253(3) of the 1961 Act. We are of the considered view that this delay in filing of appeal late by 183 days beyond time stipulated u/s 253(3) of the 1961 Act need to be condoned and the appeal is required to be admitted in the interest of justice, as the assessee has shown reasonable and sufficient cause and her bonafide in not filing this appeal with tribunal in time. The assessee received the appellate order dated 30.06.2016 passed by Ld. CIT(A) which was decided against the assessee and the assessee on being advised by her erstwhile CA paid 15% of the demand raised to enable her to get remaining demand stayed till the matter is adjudicated by higher appellate forums . But unfortunately lapse happened on part of her erstwhile CA in not filing this appeal with tribunal in time within time prescribed u/s 253(3) of the 1961 Act. The Revenue initiated prosecution proceedings against the assessee u/s 276C which led her to appoint new tax-counsels to properly and effectively represent her before the appropriate authorities. The said prosecution proceedings is stated to have been dropped by Revenue. On coming to know of the default/lapse committed by her erstwhile CA of not filing an appeal before tribunal against appellate order dated 30.06.2016 passed by learned CIT(A) in time , as notified by new tax- counsels to her she immediately took effective steps in filing appeal with tribunal which reflects her bonafide. Keeping in view the bonafide of the assessee and sufficient cause shown as explained by her, we accept her contentions as to reasonable /sufficient cause and bonafide in not filing this appeal with tribunal within time prescribed u/s 253(3) of the 1961 Act and are inclined to condone the delay in filing appeal late by the assessee by 183 days beyond the time stipulated u/s 253(3) and admit this appeal to be adjudicated on merits in accordance with law. It is well established principal of jurisprudence when technicalities are pitted against substantial justice, Courts are inclined to lean in favour of substantial justice unless malafide on the part of litigant is at writ large. We order admission of this appeal albeit filed late by 183 days beyond time prescribed u/s 253(1) of the 1961 Act in exercise of powers conferred on us u/s 253(5) of the 1961 Act. We order accordingly. 4. The grounds of appeal
raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) read as under:- “1. The Ld. Commissioner of Income tax (Appeals) erred in upholding the penalty of Rs. 580,000/- levied under section 271D of the Act by the Assessing Officer.”
5. During the course of assessment proceedings conducted by the AO u/s 143(3) read with Section 143(2) of the 1961 Act, it was observed by the AO that the assessee has received cash loan of Rs. 5,80,000/- from M/s. Evergreen Enterprises , as per detail below:- Date Amount 04.09.2008 15,000/- 11.09.2008 10,000/- 27.09.2008 15,000/- 01.10.2008 15,000/- 07.10.2008 12,500/- 15.10,2008 12,500/- 28.10.2008 17,500/- 03.11.2008 15,000/- 11.11.2008 17,000/- 15.11.2008 15,000/- 25.11.2008 15,000/- 29.11.2008 10,000/- 15.12.2008 15,000/- 22.12.2008 15,000/- 29.12.2008 10,000/- 03.01.2009 15,000/- 07.01.2009 15,000/- 19.01.2009 10,000/- 28.01.2009 15,000/- 05.02.2009 15,000/- 10.02.2009 10,000/- 27,02.2009 15,000/- 02.03.2009 15,000/- 07.03.2009 15,000/- 10.03.2009 14,700/- 13.03.2009 15,000/- 14.03.2009 15,000/- 16.03.2009 15,000/- 17.03.2009 10,000/- 18.03.2009 18,000/- 19.03.2009 15,000/- 20.03.2009 10,000/- 23.03.2009 15,000/- 24.03.2009 18,000,/- 25.03.2009 19,500/- 26.03.2009 17,500/- 27.03.2009 19,000/- 28.03.2009 19,000/- 30.03.2009 15,000/- 31.03.2009 10,000/- The AO observed that there is a prima facie violation of provision of Section 269SS of the 1961 Act and accordingly penalty proceedings u/s 271D of the 1961 Act was initiated against the assessee by issue of a notice dated 19.09.2013 wherein the assessee was asked to explain as to why penalty u/s. 271D be not imposed against the assessee. The assessee in reply submitted before the AO as under:- “(i) We are contractor, we need cash daily for material & labour, therefore we have accept some temporary loan from relatives & friends. We have taken loan below Rs.20000/- each time but because of urgency in the business, we cannot avoid to take loan from per person Rs, 20,000/-. (ii) We have not hide any income, paid taxes on all the profits. Our intention was not to hide the income or non payment of taxes. Even the detail loan statement is attached with the Balance Sheet. This shows that there is clear intention regarding transferancy of accounts. (iii) We have paid regular taxes at a time of filing return and also we have paid taxes levied at the time of assessment. This shows that we don't have any intention to hide income or non-payment on taxes. (iv) Also with this letter we are promising that in future we will try not to behave again section 271D. We will take all due care." The AO rejected the contentions of the assessee and observed that there is violation of section 269SS of the 1961 Act and assessee has failed to prove urgency of loan as well as no bonafide reasons were demonstrated by the assessee which constituted existence of circumstances and reasonable cause for taking these cash loans. The AO after relying on several case laws as are mentioned in the assessment order levied penalty of Rs. 5,80,000/- on the assessee u/s. 271D r.w.s. 269SS of the 1961 Act , equivalent to cash loan of Rs. 5,80,000/- accepted by the assessee, vide penalty order dated 03.03.2014 passed by the AO u/s 271D of the 1961 Act.
6. Aggrieved by the penalty of Rs. 5,80,000/- levied by the AO u/s 271D of the 1961 Act, the assessee filed first appeal before the Ld. CIT(A) . The contentions were raised before learned CIT(A) that the assessee is a contractor and has to pay to sub-contractor and labourers who were even required to be paid cash on holidays or at the end of the day, when the banking hour are over . It was submitted that due to these reasons the assessee has to accept cash loan which were raised from Evergreen Enterprises. Some of the instances justifying reasonable and bonafide reasons for raising cash loans were brought to the notice of the Ld. CIT(A) , as under:- “2....... ..........
1. In the penalty order of Joint Commissioner the below mentioned dates on which cash was accepted falls on the days on which the bank was closed due to holidays – Date Amount Holiday 04-09-2008 15000 Ganesh Chaturti 07-10-2008 72500 Dussera 28-10-2008 17500 Diwali 07-03-2009 75000 Mahavir Jayanthi 31-03-2009 10000 Bank Year closing --------- Total 70000 2. The following dotes as mentioned in the penalty order fall on Saturdays. As the appellant was in urgent need of money to pay our laborers, staff the appellant had to take cash from M/s.Evergreen Enterprise as the bank had closed at half day Day Date Amount 27- 15000 Saturday 09- 2008 15- 15000 Saturday 11- 2008 29- 10000 Saturday 11- 2008 Saturday 3-01- 15000 2009 14- 15000 Saturday 03- 2009 28- 19000 Saturday 03- 2009 Total 89000
3. On 27-02-2009 being the appellant's wedding anniversary, she had taken Rs. 15000 for the purpose of celebrations. As she was outside and decided at the last moment to celebrate the same she had to take cash from Evergreen Enterprise as she did not have any cash-in- hand with her at that time. On 11-11-2009 to celebrate the birthday of the appellant's brother Hasam Sauadi which was on 10-11-2009 (as he was not there on 10th November), she decided to celebrate it on 11fh November after he arrived in town and as she needed cash for the celebrations took, the same was taken from M/s.Evergreen Enterprise amounting to Rs. 17,000.
4. On 02-03-2009 cash was taken Rs.15000 from Evergreen Enterprise as Rs.12,000 was deposited in bank on 03-03-2009 as cheque issued for secured loan instalment for Zen Rs.63000 and for a/c. No.1273, Rs.5500 would be presented and the appellant did not want the cheque to bounce for the lack of funds. 5. On 13-03-2009 Motor car Xylo was purchased. On 18- 03-2009 opening cash balance was 155540.80 out of which Rs.1 lakh was deposited in the appellant's bank account - Parsik A/c 9723 so then available cash in hand was Rs.55540.80. But as car had been purchased the appellant needed to make urgent cash payment to out car vendor on a/c of following - Road tax Rs. 53720} for the car Insurance charges Rs. 30661} was needed And so Rs. 18000/- was taken from Evergreen on 18-03- 2009 and Rs. 15,000/- was taken on 19-03-2009 to remove the appellant's financial hardship.
On 30th March, 2008, after the bank had closed certain payments had to be made on priority basis and again as 31st March, 2008 being half yearly closing an amount of Rs.15000/- was taken from M/s.Evergreen Enterprises to make payment for postage & telegram, Tea Vendor Rs.6824/-, Printing & Stationery Rs.3046/- and other personal expenses Rs.5130/-.
On 1st October,2008 and 15th October 2008 it being the festival week of Diwali, Dussera the amount of Rs. 15,000 and Rs. 12500 was taken for the purpose of giving Diwali Bonus to all Staff, Driver etc as the appellant did not have cash in hand.
8. On 20th March, 2008 Rs.10,000/-, 23 March Rs.15,000/-, 24 March Rs.18,000/-, on 25th March Rs. 19,500/-, 26 March 17500 and on 27 March Rs. 19000/- was taken to meet some urgent financial obligations as the appellant was out of town and was short of cash in hand.
9. As the appellant is in the business of labour contracts mainly she travels a lot by car to meet various clients, sub- contractors and on the following days i.e., 11-09-2008 amount of Rs.10,000/-, 15-12-2008 amount of Rs.15,000/-, on 19 January 2008 amount of Rs.10,000/-, 17 January amount of Rs.10,000/- and on 16 March amount of Rs.15,000 was spent on petrol, food etc. - As the appellant was travelling she was short of cash in hand and hence the same had to be taken from M/s Evergreen Enterprises to meet her financial hardship.
On 22 Dec. 2008 Rs.15,000 and on 29 Dec. 2008 Rs.10,000 was paid as advance to hotel for new year party and as the appellant was having a shortfall of cash - the same was taken from M/s. Evergreen Enterprises to meet her financial hardship.
On 10 March 2009 as it was EID, an amount of Rs. 14,700/- was taken by the appellant from M/s Evergreen Enterprises for purchase of sweets & snacks as it was evening and bank had already closed for the day.
On 13 March 2009 an amount of Rs.15,000/- was paid to the hotel for EID celebrations. As the appellant was not having much cash at that time, the same was taken from M/s Evergreen Enterprises to meet her financial hardship. 13. On 03.11.2008 and 07.01.2009 and amount of Rs.15,000/- each was taken to purchase mobiles for the appellant's brother and his son. As the appellant was travelling and was not carrying cash, the same had to be taken from M/s Evergreen Enterprises to meet her financial hardship. 14. On 25-11-2008 Rs.15,000 was taken from M/s Evergreen Enterprises for purchase of mobile for the appellant's mother as she was not having cash at that time. 15. On 28.01.2009 Rs.15,000, on 05.02.2009 Rs.15000 and on 10.02.2009 Rs.10,000 was taken /or purchase of computer and its accessories for the appellant's nephew (brother's son) from M/s Evergreen Enterprises to meet the appellant's financial hardship. Hence there being a reasonable cause being shown, request you kindly waive the penalty amount of Rs.5,80,000/-. Hope the above ground of appeal is valid for taking the matter in appeal and also cash accepted from M/s Evergreen Enterprise on various dates mentioned above was done on reasonable grounds and to meet the financial hardship of the appellant.” The Ld. CIT(A) rejected the contentions of the assessee as the assessee could not demonstrate evidences as to existence of reasonable cause for taking cash loans. It was observed by learned CIT(A) that even cash book was not produced to show the requirement of cash and utilisation of cash loans. It was observed that no supportive evidences were filed by the assessee to support its contentions and some of the reasons advanced do not come within ambit of reasonable cause and some of the reasons advanced are frivolous as enumerated by learned CIT(A) in his appellate order dated 30.06.2016. Further, it was also observed by learned CIT(A) that the assessee had submitted five self made payment vouchers as samples which were sent by learned CIT(A) in original to India Security Press, Nasik for verification of revenue stamps affixed on these vouchers . It was confirmed by the India Security Press that these revenue stamps were printed on 15-07-2014 which is more than 5 years after the period in which payments were allegedly made in October/December 2008. The assessee was confronted and the assessee submitted that she did not manipulated any evidence. The learned CIT(A) observed that the assessee has manipulated evidences and also no cash book was produced even before him. The learned CIT(A) considering the entire material on record confirmed penalty levied by the AO vide appellate order dated 30.06.2016 passed by learned CIT(A).
7. Now the assessee being aggrieved by the dismissal of appeal by learned CIT(A) has filed an appeal before the tribunal. At the outset Ld. Counsel for the assessees submitted that penalty of Rs. 5,80,000/- was levied u/s. 271D r.w.s. 269SS of the 1961 Act on cash loans received from M/s Evergreen Enterprises. It was submitted that detailed reasonable causes were submitted before the authorities below and they have failed to consider the same in the right perspective . It was also submitted that these were loan raised in cash from M/s. Evergreen Enterprises who is a proprietary concern of husband of the assessee Shri. Akbar Mohammadli Kazi who is also having income from agriculture. Income Tax return of Shri. Akbar Mohammadli Kazi for AY 2017-18 was enclosed which is placed in file to show that the said concern Evergreen Enterprises is proprietary concern of husband of the assessee. It was submitted that authorities below have failed to the consider the contentions of the assessee in right perspective . It was also submitted that the assessee raised these cash loans from her husband and this contention was not taken before the lower authorities that cash loans raised were from husband which are not hit by provisions of Section 271D r.w.s. 269SS of the 1961 Act , as held by several judicial decisions of Hon’ble Courts. it was prayed that the matter could be restored to the file of the AO who can consider the submission of the assessee on merits in accordance with law and re-adjudicated the issue de-novo on merits in accordance with law. The assessee relied upon the decision of Hon’ble Gauhati High Court in the case of CIT v. Bhagwati Prasad Bajoria(HUF) in of 2001 decided on 17th July, 2003 reported in (2003) 263 ITR 0487 (Gau) and also decision of Hon’ble High Gujarat High Court in the case of Dr. Rajaram Lakhani decided on 22nd June, 2016 in ITA no. 554 of 2007 reported in (2017) 395 ITR 0497(Guj).It was submitted that the assessee will produce all necessary evidences such as cash books , confirmations of cash loans, evidences for utilisation of cash loans etc to substantiate that there were urgent requirement of cash after banking hours or during holidays which was then utilised for urgent requirements. The Ld. DR on the other hand relied upon decision of Ld. CIT(A).
We have considered rival contentions and perused the material on record. We have observed that the assessee is a contractor . The assessee has raised certain loans in cash which are purportedly received from M/s. Evergreen Enterprises to the tune of Rs. 5,80,000/- as per detailed below submitted by the assessee before the authorities below:
Date Amount 04.09.2008 15,000/- 11.09.2008 10,000/- 27.09.2008 15,000/- 01.10.2008 15,000/- 07.10.2008 12,500/- 15.10,2008 12,500/- 28.10.2008 17,500/- 03.11.2008 15,000/- 11.11.2008 17,000/- 15.11.2008 15,000/- 25.11.2008 15,000/- 29.11.2008 10,000/- 15.12.2008 15,000/- 22.12.2008 15,000/- 29.12.2008 10,000/- 03.01.2009 15,000/- 07.01.2009 15,000/- 19.01.2009 10,000/- 28.01.2009 15,000/- 05.02.2009 15,000/- 10.02.2009 10,000/- 27,02.2009 15,000/- 02.03.2009 15,000/- 07.03.2009 15,000/- 10.03.2009 14,700/- 13.03.2009 15,000/- 14.03.2009 15,000/- 16.03.2009 15,000/- 17.03.2009 10,000/- 18.03.2009 18,000/- 19.03.2009 15,000/- 20.03.2009 10,000/- 23.03.2009 15,000/- 24.03.2009 18,000,/- 25.03.2009 19,500/- 26.03.2009 17,500/- 27.03.2009 19,000/- 28.03.2009 19,000/- 30.03.2009 15,000/- 31.03.2009 10,000/- The assessee has for the first time claimed before us that the said concern M/s. Evergreen Enterprises is owned by husband of the assessee Shri. Akbar Mohammadli Kazi. The assessee has placed on record his income-tax return filed for AY 2017-18 to contend that Shri. Akbar Mohammadli Kazi, is husband of the assessee and that he is proprietor of the concern Evergreen Enterprise having income from agriculture also.. The said return is albeit for AY 2017-18 and not for the relevant year under consideration. The assessee has undertaken to produce all necessary evidences to substantiate that the assessee had reasonable/sufficient cause for taking cash loans of Rs. 5,80,000/- which is covered by provisions of Section 273B and no penalty u/s 269SS read with Section 271D is exigible. The assessee relied upon the decision of Hon’ble Gauhati High Court in the case of CIT v. Bhagwati Prasad Bajoria(HUF) in of 2001 decided on 17th July, 2003 reported in (2003) 263 ITR 0487 (Gau) and also decision of Hon’ble High Gujarat High Court in the case of Dr. Rajaram Lakhani decided on 22nd June, 2016 in ITA no. 554 of 2007 reported in (2017) 395 ITR 0497(Guj). The claim of the assessee is that under these circumstances , penalty is not exigible on the 14 assessee After considering entire material on record and without commenting on the merits of the issue under consideration, we are of the considered view that the contention of the assessee need verification by authorities below on merits in accordance with law and the matter need to be set aside and restored to the file of AO for fresh de-novo adjudication of the issue in accordance with law on merits. Needless to say the AO shall provide proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law. The AO shall admit evidences/explanations submitted by assessee in its defence which shall be adjudicated on merits in accordance with law. This appeal is allowed for statistical purposes. We clarify that the onus is on the assessee to prove with cogent evidences that these cash loans are not hit by provisions of Section 269SS read with Section 271D of the 1961 Act . The appeal of the assessee is allowed for statistical purposes. We order accordingly.
In the result appeal of the assessee in AY 2009-10 is allowed for statistical purposes. Order pronounced in the open court on 24.10.2018. आदेश की घोषणा खुऱे न्यायाऱय में ददनांकः 24.10.2018 को की गई Sd/- Sd/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, dated: 24.10.2018 Nishant Verma Sr. Private Secretary copy to… 1. The appellant The Respondent 2. The CIT(A) – Concerned, Mumbai 3. 15