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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
PER MAHAVIR SINGH, JM:
These two appeals by the assessee are arising out of the different orders of Commissioner of Income Tax (Appeals)-28, Mumbai, [in short CIT(A)] in appeal No. CIT(A)-28/IT- 596 & 597/ACIT-17(2)/2014-15 dated
ITA Nos. 365 & 366/Mum/2017 10.10.2016. The order under section 271D & 271E was passed vide order dated 19.03.2014.
In ITA No. 366/Mum/2017, the issue is as regards to levy of penalty under section 271D of the Act on the amount of ₹ 4 lacs. The assessee has raised the following grounds: -
“1. Penalty Proceedings under s. 271D
The Id. ClT(A) erred on facts and in law in confirming the impugned Order of penalty under s. 271D of the Income Tax Act. 1961.
Relief Claimed: The Order be cancelled
Attraction of provisions of s. 269SS . .
The Id. CIT(A) erred on facts and in law in not appreciating the fact that then was no loan or deposit accepted by the appellant during the Financial Year 2007-08 relevant to the Assessment Year 2008-09 so as to attract provisions of s. 269SS
Relief Claimed: The Order be cancelled.”
Similarly, in ITA No 365/Mum/2017, the issue is as regards to levy of penalty under section 271E of the Act. For this assessee has raised the following grounds: -.
“1. Penalty Proceedings under s. 271E
ITA Nos. 365 & 366/Mum/2017 The Id. ClT(A) erred on facts and in law in confirming the impugned Order of penalty under s. 271D of the Income Tax Act. 1961.
Relief Claimed: The Order be cancelled
Attraction of provisions of s. 269ST . .
The Id. CIT(A) erred on facts and in law in not appreciating the fact that then was no loan or deposit repaid by the appellant during the Financial Year 2007-08 relevant to the Assessment Year 2008-09 so as to attract provisions of s. 269T
Relief Claimed: The Order be cancelled.
Treatment of payment Creditors as repayment of loans
The ld. CIT(A) erred on facts and in law in not appreciating the fact that were creditors paid and there was no repayment of loan or deposit by the appellant during the Financial Year 2007- 08 relevant to Assessment Year 2008-09 so as to attract provisions of s. 269T.
Relief Claimed: The order be cancelled.”
The learned Counsel for the assessee and learned Departmental Representative both fairly conceded that assessee has not represented before the AO in penalty proceedings for both the violation i.e. under section 271D and 271E of the Act and AO has passed ex-parte order.
ITA Nos. 365 & 366/Mum/2017 Similarly, the CIT(A) has also not discussed the factual aspect of the case. 5. After hearing both the sides and going through the orders of the AO i.e. penalty orders and the orders of CIT(A), we noticed that none of authorities below, has considered the facts relating to levy of penalty under section 271D and 271E of the Act. Hence, in the interest of justice, we restore these two penalties to the file of the AO and set aside the orders of the lower authorities. Accordingly, these two penalties will be decided by AO denovo after allowing reasonable opportunity of being heard to the assessee. 6. In the result, the appeals of assessee are allowed for statistical purposes. Order pronounced in the open court on 10-07-2018.
Sd/- Sd/- (राजेश कुमार /RAJESH KUMAR) (महावीर स िंह /MAHAVIR SINGH) (लेखा दस्य / ACCOUNTANT MEMBER) (न्याययक दस्य/ JUDICIAL MEMBER) मुिंबई, ददनािंक/ Mumbai, Dated: 10-07-2018 सुदीप सरकार, व.निजी सचिव / Sudip Sarkar, Sr.PS
5 ITA Nos. 365 & 366/Mum/2017 आदेश की प्रनिलिपप अग्रेपिि/Copy of the Order forwarded to : अपीलाथी / The Appellant 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त(अपील) / The CIT(A) 3. आयकर आयुक्त / CIT 4. ववभागीय प्रयतयनधि, आयकर अपीलीय अधिकरण, मुिंबई / DR, ITAT, 5. Mumbai गार्ड फाईल / Guard file. 6.
आदेशािुसार/ BY ORDER, त्यावपत प्रयत //True Copy// उप/सहायक पंजीकार (Asstt. Registrar) आयकर अपीिीय अचिकरण, मुिंबई / ITAT, Mumbai