SH. PREM SINGH SAINI,SIKAR vs. ADDL. CIT, SIKAR, SIKAR

Therefore, for the purpose of the present discussions, the is taken as a lead case. Based on the grounds are similar, facts are similar, and arguments were similar and therefore, were heard together and are disposed by taking lead case facts, grounds, and arguments from the folder in ITA No.

951/JP/2024.

“1. The Ld. CIT(A), NFAC has erred on facts and in law in confirming the levy of penalty of Rs. 8,47,900/- u/s 271D of the Act. 2. The appellant craves to alter, amend & modify any ground of appeal

3. Necessary cost be awarded to the assessee.”

5. The fact as culled out from the records is that the Additional Commissioner of Income Tax, Sikkar Range, Sikar was informed by the Income Tax Officer, Ward-1, Sikar that the assessee had accepted total cash deposits of Rs. 8,47,900/- in his bank account as detailed here in below :

As the assessee has accepted the cash deposit of Rs. 8,47,900/- in contravention of the provision of section 269SS. Accordingly, assessee was issued show cause notice on 30.07.2015 to explain why penalty u/s. 271D of the Act may not be imposed for contravention of provisions of section 269SS.

To this effect notice was issued on 07.08.2015 to file explanation and evidence. In response the assessee has filed a written submission dated 19.08.2015 in which the assessee has stated that amount of Rs. 8,47,900/- deposited in his bank account was not loan from other persons but the amount belonged to different persons who had deposited the same in his bank account for purpose of purchasing Demand Draft as tender amount in respect of their applications for allotment of liquor license by Excise Department and since the license was not allotted, the amount was amount did not represent any loan or deposit as the same belonged to other persons all the time and his bank account only was used by these persons. Assessee was asked to file evidence in support to his claim/plea taken in his written reply dated 19.08.2015. The next date for hearing was fixed on 26.08.2015. On this date the assessee appeared and stated that he has no evidences or further submission to file.

The explanation submitted by the assessee is not found to be satisfactory in absence of supporting evidences. Admittedly the amount of Rs.8,47,900/- represented cash deposited in assessee's bank account by different persons as mentioned in para 1 above.

Prima facie the amount lying in assessee's bank account belongs to the assessee, the source of which is explained to be the amount received from different persons. The assessee has failed to produce any satisfactory evidence to substantiate his claim that the amount deposited in his bank account was owned by these depositors and used by them for their own purpose and that his account was merely used as a facilitating mechanism to help such depositors. Therefore the deposit of Rs.8,47,900/- represents loan deposit was accepted by the assessee in cash, provisions of Section 269SS of the Act have been contravened. As per section 271D, if a person takes or accepts any loan or deposit in contravention of provisions of section 269SS, he shall be liable for penalty. Having considered the explanation filed by the assessee and the provisions of section 269SS and section 271D. The assessee liable for penalty u/s 271D.

6. Aggrieved from the order of Additional Commissioner of Income Tax, Sikar Range, Sikar levying the penalty u/s. 271D of the Act, assessee preferred an appeal before the ld. CIT(A).

Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:

“5. Decision:- I have gone through any duly considered the grounds of appeal raised by the appellant, penalty order of the AO, written submission of the appellant and other facts of the case available on the record. 5.1. The appellant is an individual and during the FY 2010-11 relevant to the AY 2011-12, the appellant accepted the amount of Rs.8,47,900/- otherwise than by way of account payee cheques thereby violating the provisions of section 269SS of the Act. Therefore the AO levied the penalty of Rs.8,47,900/- u/s 271D of the Act on 26/08/2015 for violation of provisions of section 269SS of the Act. 5.2. Section 269SS of the Act prevents any assessee from acceptance of loan/deposits otherwise than by way of an account payee cheque or other banking channels. Violation of provisions of section 269SS of the & 952/JP/2024 Sh. Prem Singh Saini vs. Addl. CIT Act attract the levy of penalty u/s 271D of the Act for an amount equal to the amount of loan/deposit accepted by mode other than those specified in section 269SS of the Act. In view of the facts narrated above, the appellant accepted an amount of Rs.8,47,900/- in cash in violation of provisions of section 269SS of the Act and hence the AO levied the penalty u/s 271D of the Act for an amount of Rs.8,47,900/-. 5.3. During the appellate proceedings, the appellant claimed that he accepted the deposits from 10 persons in order to apply for liquor license with the Excise Department and utilized such amount to draw Demand Draft in favour of excise Department. He further claimed that all these persons were not having any bank account and hence he used his bank account to deposit the cash received and then draw the demand drafts. After the procedure of liquor license was completed, the appellant received back the impugned demand drafts from the Excise Department and he claimed to have repaid the amount to these 10 persons in cash after cancellation of demand drafts. It is very much hard to believe that the persons interested in doing liquor business were not having any bank account and hence the appellant accepted & repaid the amount form these persons in cash. Thus the appellant accepted the amounts in cash without any reasonable cause. Therefore I do not find any excuse to take a divergent view from the view of the AO. Hence I uphold the order of the AO wherein the penalty u/s 271D of the Act for an amount of Rs.8,47,900/- was levied. Accordingly, all the grounds of appeal are dismissed.

6. In a result, the appeal is dismissed.”

7. As the assessee did not find any favors from the order so passed by the ld. CIT(A) the appeal has been preferred the present appeal before this tribunal on the grounds as reproduced here in above. The ld. AR appearing on behalf of the assessee has placed his written submission to support the grounds so raised and written submission reads as follows :

S. Name of Person/ Amount Details of Demand Drafts No. Depositor received (in Rs.) Date DD No. Amount (in Rs.)

1. Vinod Kumar S/o 90,000/- 22.02.2011 806/831, 833/821 85,800/- Sh. Prahalad Rai

2. Dhanna Lal S/o 90,000/- 24.02.2011 808/823, 805/815 95,700/- Sh. Govind Ram Saini

3. Ram Singh S/o 45,000/- 24.02.2011 832/830 42,900/- Sh. Hanuman Singh

4. Lokesh S/o 90,000/- 24.02.2011 813/827, 809/824 1,27,094/- Sundar Lal

7. Sonia W/o Prem 1,25,000/- 26.02.2011 803/818, 802/817 1,05,600/- Singh Saini

8. Mahendra Kumar 1,20,000/- 26.02.2011 810/825 42,900/- S/o Hanuman Singh

9. Babita D/o 32,900/- 26.02.2011 814/828 84,194/- Sundar Mal

2. The assessee filed the return on 27.07.2011 declaring total income of Rs.4,93,050/- which was revised on 07.09.2011 declaring total income of Rs.6,43,050/-. The assessment was completed on 31.12.2013 u/s 143(3) at total income of Rs.6,46,150/- but in the assessment order no reference was made for referring the matter to the Addl. CIT for initiating penalty proceedings u/s 271D & 271E of the Act.

3. The Addl. CIT issued show cause notice dt. 01.08.2014 u/s 271E of the Act and imposed penalty of Rs.8,47,900/- vide order dt. 26.02.2015 for the reason that assessee neither attended the office personally nor filed the written submission.

4. Thereafter the Addl. CIT issued show cause notice dt. 30.07.2015 u/s 271D of the Act. The assessee explained that amount of Rs.8,47,900/- deposited in the bank account was not loan but the amount belong to the different persons who have deposited the same in his bank account for the purpose of purchasing the demand draft in respect of their application for allotment of liquor license by the Excise department and since the license was not allotted the amount was repaid to such depositors. The AO, however, rejected the explanation of assessee by holding that the assessee has failed to produce any satisfactory evidences to substantiate his claim that the amount deposited in his bank account was owned by these depositors and used by them for their own purpose and that his account was merely used as a facilitating mechanism to help such depositors. Accordingly he treated the same as loan or deposit in the name of different persons received in cash which is in contravention of provision of sec. 269SS of the Act and thus imposed penalty of Rs.8,47,900/- u/s 271D vide order dt. 26.08.2015.

5. Before CIT(A) assessee filed detailed submission along with additional evidences. The Ld. CIT(A) called for remand report. The remand report dt. 20.03.2018 submitted by AO to CIT(A) is at PB 5-8. The assessee’s submission in response to above remand report is at PB 8A & 9-16.

6. The Ld. CIT(A), NFAC held that it is very hard to believe that the persons interested in doing liquor business were not having any bank account and hence the appellant accepted & repaid the amount from/to these persons in cash. Thus the appellant accepted/repaid the amounts in cash without any reasonable cause. Accordingly he confirmed penalty of Rs.8,47,900/- u/s 271D of the Act and penalty of Rs.8,47,900/- u/s 271E of the Act.

Submission:- 1. It is submitted that section 269SS provides that no person shall take or accept from any other person any loan or deposit exceeding the specified amount otherwise than by account payee cheque/bank draft. Similarly section 269T provides that no person shall repay any loan or deposit made with it otherwise than by account payee cheque/bank draft. The explanation to section 269SS provides that loan or deposit means loan or deposit of money. Therefore section 269SS/269T would be attracted only when a person take or accept loan or deposit of money or repay such loan or deposit of money by a mode otherwise than that specified in the section.

Even otherwise the initiation of penalty proceedings U/s 271D and 271E of the Act is based on the premises that the assessee has taken this amount of Rs. 3,36,000/- from one Shri Shreeram and it was also repaid by the assessee to the said person but since the receipt and payment was in cash, therefore, it was held to be in violation of provisions of Section 269SS and 269T of the Act. It is pertinent to note that when the explanation of the assessee that the said amount was deposited by the said person in the bank account of the assessee for the purpose of taking a D.D. in favour of the Excise Department for participating in the tender of liquor shops then it would not fall in the ambit of loan or deposits as contemplated in the provisions of Section 269SS and 269T of the Act. Therefore, once it is not a loan taken by the assessee for his requirement but the explanation was accepted by the Assessing Officer that this amount was deposited by Shri Shreeram for his requirement of & 952/JP/2024 Sh. Prem Singh Saini vs. Addl. CIT participating in the tender of the liquor shops then in absence of any fresh material or contrary record to show that the amount was taken as a loan by the assessee for assessee’s requirement, the penalty levied U/s 271D and 271E are not justified.

In the present case also, the cash amount has been deposited in the assessee’s bank account. The amount so deposited has been used for making the demand draft in favour of the Excise department in support of which the application filed by these persons along with the details of bank draft is placed at PB 22-43. The affidavit of all these persons were also filed (PB 44-58). Thus the amount credited in the bank account of the assessee in cash is “amanat” amount or the amount received in “trust” which is neither a loan nor a deposit. Hence, there is no contravention of section 269SS/269T and consequently no penalty u/s 271D/271E is leviable.

32.1 Unaccounted cash found in the course of searches carried out by the Income- tax Department is often explained by taxpayers as representing loans taken from or deposits made by various persons. Unaccounted income is also brought into the books of account in the form of such loans and deposits and taxpayers are also able to get confirmatory letters from such persons in support of their explanation.

32.2 With a view to countering this device, which enables taxpayers to explain away unaccounted cash or unaccounted deposits, the Finance Act has inserted a new section 269SS in the Income-tax Act debarring persons from taking or accepting, after 30th June, 1984, from any other person any loan or deposit otherwise than by an account payee cheque or account payee bank draft if the amount of such loan or deposit or the aggregate amount of such loan and deposit is Rs. 10,000 or more. This prohibition will also apply in cases where on the date of taking or accepting such loan or deposit, any loan or deposit taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment has fallen due or not), and the amount or the aggregate amount remaining unpaid is Rs. 10,000 or more. The prohibition will also apply in cases where the amount of such loan or deposit, together with the aggregate amount remaining unpaid on the date on which such loan or deposit is proposed to be taken, is Rs. 10,000 or more.

Hon’ble Supreme Court in case of ADIT(Inv.) Vs. Kum. A.B. Shanthi (2002) 255 ITR 258, 263 has also observed that the object of introducing s. 269SS is to ensure that a taxpayer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he & 952/JP/2024 Sh. Prem Singh Saini vs. Addl. CIT shall not escape by giving false explanation for the same. During search and seizures, unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends and it is easy for the so-called lender also to manipulate his records later to suit the plea of the taxpayer. The main object of s. 269SS was to curb this menace.

From the above it can be noted that the object for enacting section 269SS is to prohibit the tax payers in explaining the unaccounted cash found in course of search as representing loan taken from or deposit made by various persons. In the present case the genuineness of transaction is not in dispute, it is not a case of explaining any undisclosed income in garb of acceptance of loan or deposit and the AO himself has verified the source of such cash amount by accepting the return of assessee. Hence it is not a case of bringing any unaccounted income in the bank account of the assessee and therefore even on the basis of the intent and purpose for which this section was brought into the statute, no adverse inference of violation of section 269SS/269T is required to be drawn and therefore the penalty levied u/s 271D/271E is unjustified.

4. It has been held in number of cases that where asseessee has given a reasonable explanation for receiving the amount in cash, acted in bonafide manner or default is of technical nature, no penalty u/s 271D/ 271E is leviable. Reliance in this connection is placed on the following cases:-

CIT Vs. Maheshwari Nirman Udyog (2008) 302 ITR 201 (Raj.) (HC) The Hon’ble High Court at Para 7 to 10 of this judgment held as under:-

& 952/JP/2024 Sh. Prem Singh Saini vs. Addl. CIT "Notwithstanding anything contained in the provision of s. 271D, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure, referred to in the said provision if he proves that there was reasonable cause for the said failure."

8. The question requires consideration is that whether the transaction in question can be said to be a genuine transaction or not. In this behalf, the first appellate authority after appreciating the evidence on record has observed in para 3 of its judgment as under:

After careful consideration of the matter, I find that the appellant is a contractor doing business in a remote area of Nokha Tehsil. The appellant had to make spot payments to the labour, etc. and for that the appellant needed cash. Therefore, the appellant borrowed the money from sister concern at the work site. Therefore, it is only a technical breach of law and for a mere technical breach, no penalty is exigible. Therefore, the penalty levied by the Dy. CIT, Bikaner, is cancelled because the source of the deposits has not been disbelieved by the AO. Therefore, the penalty is cancelled.

"We have considered the rival submissions. The learned Authorised Representative. contended that the transactions between two sister concerns are not covered by the provisions of s. 269SS. For the purpose he has relied upon four judgments. In the case of Muthoot M. George Bankers vs. Asstt. CIT (1993) 47 TTJ (Coch) 434: (1993) 46 ITD 10 (Coch) it was held as under (headnote):

‘In the instant case, there was no evidence to show that money was loaned or kept deposited for a fixed period or repayable on demand. Further, the sister concerns and the assessee were owned by the same family group of people with a common managing partner with centralised accounts under the same roof. Transfer of funds had taken place in a whimsical manner. Therefore, it was rather difficult to say that the transactions were in the nature of deposits or loans with certain conditions attached to them, either as regards the period of such deposits or loans or with regard to their repayments. From the copies of the accounts furnished all that could be gathered was that funds had been transferred from and to the sister concerns as and when required and since the managing partner was common to all the sister concerns, the decision to transfer the funds from one concern to another concern or to repay the funds could be said to have been largely influenced by the same individual. In such circumstances of the case, the transactions inter se between the sister concerns and the assessee could not partake of the nature of either ‘deposit’ or ‘loan’ though interest might have been paid on the same.’ & 952/JP/2024 Sh. Prem Singh Saini vs. Addl. CIT Therefore, we find that the funds had been borrowed from the sister concern not at Nokha where the assessee had bank account but in Sriganganagar District for engagement of fresh labourers. Therefore, we agree with the contention of the learned Authorised Representative on this ground. The assessee had undertaken various sites at remote area at a time where no banking facilities are available and money was urgently required and there were no banks at the sites. This is considered to be a reasonable cause."

10. Accordingly, both the fact-finding authorities found that the transaction in question is a genuine transaction and the explanation given by the respondent-assessee has been accepted by the CIT(A)-I, Jodhpur, as well as by the Tribunal, Jodhpur Bench, Jodhpur. Though learned counsel Mr. K.K. Bissa submitted that the finding of fact given by the authorities below is not correct finding of fact as other view is possible. We are afraid, we cannot go into the aspect whether the finding of fact arrived at by the authorities below is proper or not. It is required to be noted that the powers of this Court are limited as to correct substantial error of law, if any. Whether a particular transaction is genuine or otherwise is a question of fact and if it has been found by the appellate authority that the assessee had shown reasonable cause for accepting the money in cash, the finding of fact given by the appellate authority, which is affirmed by the Tribunal is not required to be interfered with by this Court as it cannot be said that any substantial question of law arises for determination of this Court and whether the assessee has made out a case for accepting the amount in cash, finding on such aspect can be said to be finding of facts based on material on record. Whether a particular finding of fact is correct or not, is not a question which could be examined by this Court in this appeal.”

CIT Vs. Speedways Rubber (P) Ltd (2010) 326 ITR 31 (P&H) (HC) The head note of this case is as under:-

Penalty under s. 271D—Contravention of s. 269SS—Assessee accepted share application money being Rs. 20,000 in cash—Penalty levied under s. 271D deleted by CIT(A) holding that transaction was bona fide and default was of technical nature—Tribunal affirmed the order of CIT(A)—Finding to the effect that the transaction was bona fide and the default was of technical nature which did not justify levy of penalty is not shown to be, in any manner, perverse or unreasonable—No substantial question of law arises Smt. Vijapurapu Sudha Rao Vs. ITO (2024) 234 DTR 276 (Visakha) (Trib.) Since the cash received by the assessee on sale of immovable property has been immediately deposited by him in his bank account, provisions of sec. 269SS are not attracted and therefore, penalty u/s 271D levied by the AO is not sustainable more so as the explanation offered by the assessee for accepting receipt of cash that it was a distress sale constitutes a reasonable cause as contemplated in sec. 273B.

Penalty u/s 271D—Penalty for failure to comply with the provisions of section 269SS—Assessee carried on proprietor business under the name of ''X'' and her husband was also a Proprietor of another concern—During assessment proceedings, AO found that Assessee had received cash loans from her husband— AO initiated penalty proceedings u/s 271D asking Assessee to show cause as to why penalty should not be imposed as cash deposits with in contravention of Section 269SS— AO was however, not satisfied with explanation and imposed penalty u/s 271D holding that Assessee had no reasonable cause and explanation was based on bald statement that husband was managing the affairs of Assessee's business— CIT(A) upheld Order of AO on ground that no exceptional circumstances or exigencies of business could be substantiated by Assessee and Assessee's case did not fall in exempted category prescribed in first proviso to Section 269SS—Held, From record there was no shred of doubt about genuineness of transactions and their disclosure in the books of account and returns of both the Assessee who happen to be husband and wife, carrying on the business as sister concerns— Section 271D read with Section 269SS was introduced by legislature to discourage the menace of black money— Since those transactions were genuine, this element of black money was totally ruled out—Assessee had given an explanation that was not unreasonable and based on business exigencies also for payments to labourers and lenders— Transactions being genuine and Assessee having offered reasonable explanation justifying those cash transactions, impugned penalty u/s 271D was not leviable—Penalty imposed on Assessee deleted—Assessee's Appeal allowed.

In view of above, penalty of Rs.8,47,900/- confirmed by Ld. CIT(A) u/s 271D & 271E is uncalled for and be directed to be deleted.

Case laws relied upon:

S. No. Particulars Pg No. Copy of decision of Hon’ble ITAT Jaipur Bench in case of Sunil Kumar 1. 1-3 Vs. Addl. CIT & 204/JP/2018 order dated 09.01.2019 2. Copy of decision of Hon’ble Rajasthan High Court in case of CIT Vs. 4-14 Maheshwari Nirman Udyog (2008) 302 ITR 201 3. Copy of decision of Hon’ble P&H High Court in case of CIT Vs. 15-16 Speedways Rubber (P) Ltd (2010) 326 ITR 31 4. Copy of decision of Hon’ble ITAT Visakhapatnam Bench in case of 17-20 Smt. Vijapurapu Sudha Rao Vs. ITO (2024) 234 DTR 276 5. Copy of decision of Hon’ble ITAT Jaipur Bench in case of Kusum 21-26 Dhamani Vs. Additional CIT (2015) 152 ITD 481 submission so filed vehemently argued that the assessee the assessee is salaried person working in an insurance company as sales manager. The assessee along with his wife his friends and close relatives decided to apply for liquor license with Abkari Department. Since these persons were not having the bank account, they used the assessee’s bank account whereby the cash amount received of Rs.8,47,900/- from 10 persons was deposited in the bank account of assessee for making the demand draft in favour of Abkari Department. To support the assessee has placed on record affidavit, application made by those persons for allotment of liquor shop. The ld. AO considered the explanation of the assessee and the assessment was completed u/s. 143(3) of the Act without making any addition. Considering this set of facts and provision of section 269SS cover the loan or deposit and the transaction is out of the ambit of that loan or deposit even that aspect did not attract the penalty. The ld. AR in support of the arguments also relied upon the decisions as cited herein above. authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). The ld. DR vehemently opposed to the contention of the assessee that the 10 persons alleged to have given the money for making the DD were not having bank account. As is evident from the affidavit from the affidavit of Shri Vinod Kumar Saini and Shri Ramsingh that he does not have any bank account and is having the PAN issued by the Income Tax department. Whereas Shri Dhanalal, Shri Lokesh, Smt.

Usha Kumari, Shri Hanuman, Shri Mahendra Kumar Ms. Babita are doing agricultural activity not having bank account cannot be believed. So far as regards the money received from Shri Tulsi Ram having bank account but not having cheque book is also not correct not only Smt. Soniya wife of the assessee who is school teacher and how it can be believed that he does not have any bank account. The ld. DR also relying on the same affidavit stated that the affidavit says at the time of making the DD they did not have bank account, but it is not clear whether at the time when the money received back they were having the bank account or not. So both the matters are inter related and is requires the remand to the the assessee on facts needs a detailed inquiry. Assessee cannot use the saving bank account for making the banking transaction for others and is not permitted also. The reasons thus, advanced does not provide immunity as per provision of section 273B of the Act.

As the facts of the case law relied upon are different from that of the facts of the assessee the same are differentiated.

Thus, looking to all these aspects of the matter and the submission of the rival parties we are of the view that the case of the assessee need to be verified and on facts are based on half- truth, as the affidavit did not deal the position prevailing when the money received back needs to be examined so as to render justice to the rival parties. Based on this aspect of the matter we remand the matter to the file of the Additional / Joint Commissioner we has passed the penalty order to verify the contention of the affidavit with the respective two alleged default made by the assessee. deem it fit to remand the matter to the file of the ld. AO [ Addl/ JCIT ] who will considered the factual aspect of the matter as raised by the rival parties as discussed herein above and after due verification of the facts and levy the penalty / drop the proceeding in the hands of the assessee after affording due opportunity of being heard to the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. AO.

In terms of these observations, the appeal of the assessee in is allowed for statistical purposes.

In the result, both appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on 09/09/2024.

Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 09/09/2024 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sh. Prem Singh Saini, Sikar 2. izR;FkhZ@ The Respondent- Addl. CIT, Sikar, Sikar 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA Nos. 951 & 952/JP/2024}

सहायक पंजीकार@Aेेज. त्महपेजतंत