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Income Tax Appellate Tribunal, DELHI BENCH ‘E’ NEW DELHI
Before: SHRI R.K. PANDA & SHRI SUDHANSHU SRIVASTAVAShri Naresh Kumar, vs JCIT,
PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
This appeal has been preferred by the assessee against the order dated 28.04.2014 wherein the ld. CIT(A) has confirmed imposition of penalty of Rs. 2 lakh imposed u/s 271D of the Income Tax Act, 1961.
The facts in brief are that information had been received by the ITO Ward 21(1) from ITO, Ward 37(3), New Delhi that the assessee had received/taken a loan of Rs. 2 lakh in cash from Mr. Ashok Arora during the financial year 2000-01. On a show ITA 3946/Del/2014 Assessment Year 2001-02 cause notice being served on the assessee, the assessee appeared before the income tax authorities and his statement was recorded wherein the assessee stated that he had taken the money from Shri Ashok Arora ranging from Rs. 5,000/- to Rs. 20,000/- on various occasions and that he had returned the same along with interest. The assessee also denied ever taking a loan of an amount exceeding Rs. 20,000/- in cash from Shri Ashok Arora.
The assessee also stated that Shri Ashok Arora had made him sign blank papers which had been misused. The Assessing Officer has recorded a finding in page 1 of the order passed u/s 271D that as per Annexure IV forwarded by the ITO, Ward 37(3) there was a copy of receipt stating that a sum of Rs. 2 lakh was being taken from Shri Ashok Arora by the assessee and that the assessee is giving post dated cheque of Rs. 3 lakh for the return of the aforesaid loan amount. The Assessing Officer proceeded to impose penalty of Rs. 2 lakh on the assessee for failure to comply with the provisions of Section 269SS of the Income Tax Act, 1961.
3. Aggrieved, the assessee preferred an appeal before the ld. CIT(A) who also confirmed the same. Now, the assessee has ITA 3946/Del/2014 Assessment Year 2001-02 approached the ITAT and has raised the following grounds of appeal:
“1. That the learned Assessing Authority has grossly erred and mistaken under law and according to the facts and in the circumstances of the case in imposing penalty u/s 271D.
2. That on the matter of fact and in the circumstances of the case, penalty has been imposed by the learned Assessing Authority without examining the authenticity and relevancy of the receipt.
That any additional ground may be taken at the time of hearing of the appeal.
None appeared for the assessee. A perusal of the order sheet shows that the case was earlier fixed for hearing on 20th February, 2017 but even on that date, none had appeared and even today, when the matter was called for hearing, none was present. Therefore, we proceed to adjudicate on the appeal ex parte the assessee.
Learned Departmental Representative supported the orders of the authorities below and vehemently argued that this was a fit case for imposition of penalty u/s 271D of the Act and, therefore, the same should be confirmed.
ITA 3946/Del/2014 Assessment Year 2001-02
We have heard the learned Departmental Representative and have also perused the material on record. A perusal of the impugned order passed by the CIT(A) shows that the penalty has been confirmed on the ground that there was a copy of receipt stating that a sum of Rs. 2 lakh had been taken by the assessee from Shri Ashok Arora for which the assessee had given a post dated cheque of Rs. 3 lakh in advance for the return of the loan amount. Ld. CIT(A) has noted that the case for acceptance of loan of Rs. 2 lakh in cash by the assessee was substantiated on account of preponderance of probability. Before the ld. CIT(A), the assessee had taken the ground that the penalty was imposed based on a forged receipt created by Shri Ashok Arora by putting the assessee’s forged signature on the receipt and that no such loan of Rs. 2 lakh in cash was ever taken by the assessee. He has also contended before the ld. CIT(A) that a complaint u/s 138 r/w 142 of the Negotiable Instrument Act as well as Section 420 of Indian Penal Code was pending before the Court of the Chief Metropolitan Magistrate, Delhi in Complaint No. T-15/2002 which had subsequently been decided in favour of the assessee, which proved that the receipt of Rs. 2 lakh was forged/fabricated.
On this, the ld. CIT(A) has observed that in absence of the ITA 3946/Del/2014 Assessment Year 2001-02 complete testimony of the complainant Shri Ashok Arora that the assessee (accused) had been acquitted of the offence alleged against him, it could not be inferred that the receipt of Rs. 2 lakh was a forged receipt.
On an overall factual matrix of the case, we deem it expedient in the interest of justice that the assessee be afforded another opportunity to produce relevant evidences in his favour before the ld. CIT(A). Therefore, without commenting on the merits of the case at this juncture, we restore the issue to the file of the ld. CIT(A) to re-examine the issue in the light of the evidences/explanations to be filed by the assessee in support of his case after affording due opportunity to the assessee. We also add that should the assessee fail to furnish the requisite evidences or appear without justifiable reason before the ld. CIT(A) on the appointed date, the ld. CIT(A) will be at liberty to draw a negative inference and adjudicate accordingly.
In the result, the appeal of the assessee stands allowed for statistical purposes.
ITA 3946/Del/2014 Assessment Year 2001-02 Order pronounced in the Open Court on 4th May, 2017.