ARUN KUMAR SAHA HUF,MUMBAI vs. JT CIT RG 23(1), MUMBAI

order ,dated 27/01/2017 of the CIT(A)-32,Mumbai the assessee has filed the present appeal.Assessee-HUF filed its return of income on 29/07/2012, declaring income of Rs. 3,475/-. The effective ground of appeal is about levy of penalty u/s.271D of the Act. 2.During the assessment proceedings,the AO observed that verification of the books of accounts and entries revealed that a sum of Rs. 29.92 lakhs was paid from the account of AKS (individual) to a Builder, that the amount in question was shown as loan in the books of the assessee through passing of accounting entries. He held that acceptance of loan by the assessee was contravention of section 269SS. He levied a penalty of Rs. 29, 92, 488/-, u/s.271D of the Act. 3.Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority (FAA)and made elaborate submissions. It also relied upon certain case laws. After considering the available material, the FAA held that the loan of Rs. 29.92 lakh was received by way of Journal entry, that there was no genuine reason for contravening the provisions of section 269SS, that the fact that assessee did not have adequate balance in the bank account cannot be treated as reasonable cause, that there was no urgency to make the said payment. Finally he held that assessee had received loan/deposit above Rs. 20,000 otherwise than by account payee cheque, that the AO was justified in living the penalty. 4.Before us, the authorised representative argued that there was reasonable cause for making the payment to the builder, that the assessee was not having sufficient balance in the bank account, that transaction between the assessee and the individual was transaction between the 1303/M/17-(12-13) Arun Kumar Saha(HUF)

same person, that the individual was acting as a karta of HUF also, that there were no two separate individuals, that the same individual was acting in dual capacity,that for registration purposes of the documents it was necessary that the stamp duty was paid and that there was an obligation to make the payment of VAT.He relied upon the case of Lodha builders (P) Ltd. (163 TTJ 778). The departmental representative supported the order of the FAA.. 5.We have heard the rival submissions and perused the material before us.It is said that levy of penalties u/s.271D/272 of the Act,is not automatic. In order to bring in application of those sections in the backdrop of the overriding non obstante clause in section 273B , absence of reasonable cause, existence of which has to be established, is a sine qua non. Before levying penalty, the AO is required to find out that even if there was any omission or commission on part of an assessee,the same was without reasonable cause.The initial burden is on the assessee to show that there existed a reasonable cause for the failure.Thereafter,AO has to consider whether the explanation offered by the assessee or other person as regards the reason for failure, was on account of reasonable cause.Reasonableness of a cause depends on the facts and circumstances of each case,though the phrase signifies existence of a cause that would convince even a common man that there was abnormal situation that compelled the person to commit default.It is not a case of non contravention of provision of law,but presence of some reason that explains the infringement.In the case under consideration the assessee was not having sufficient fund in the bank and it had to make payments for registration and other charges with regard to purchase of an immovable property.It is also a fact that the Individual had made payment on behalf of the HUF and that the same Individual is also Karta of the assessee-HUF.The FAA has mentioned that alleged loan was taken by passing Journal entries.thus, the genuineness of the transaction is not in doubt.Here, we would like to refer to the matter of Lodha Builders (supra) wherein the Tribunal has held as under: “(ii) That there was no finding of the Assessing Officer during the assessment proceedings that the transactions constituted unaccounted money and were not bona fide or not genuine. The transactions by way of journal entries were aimed at the extinguishment of mutual liabilities between the assessees and the sister concerns of the group and such reasons constituted a reasonable cause. The cause shown by the assessee for receiving or repayment of the loan or deposit otherwise than by account-payee cheque or bank draft, was on account of alternate mode of raising funds, assignment of receivables, squaring up transactions, operational efficiencies, consolidation of family members’ debts, correction of errors, and loans taken in case. All these reasons were commercial in nature and could not be described as non-business by any means. Further, there was no point in issuing hundreds of account payee cheques or account payee bank drafts between concerns of the group, when transactions could be accounted in books using journal entries, which was also an accepted mode of accounting. The Assessing Officer had not made out in the assessment that the 2