M/S LOK VIKAS HOUSING FUNDS LTD.( NOW LOK VIKAS HOUSING FINANCE CORPORATION LTD. ,JAIPUR vs. THE ADDL.CIT RANGE-1, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,’A’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM deys’k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 452/JP/1999 fu/kZkj.k o"kZ@Assessment Year : 1995-96 cuke M/s Lok Vikas Housing Funds Ltd. The Addl. CIT Vs. (Now Lok Vikas Housing Finance Range-1 Corporation Ltd. Lok Vikas Jaipur Bhawan, 3F1, Shivanand Marg, Malviya Nagar, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADUPS 4022 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. P. C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehra (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 06/12/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 12/01/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, A.M.

This appeal preferred by the assessee and is arising from the order of the ld. CIT(A) for confirmation of penalty for Rs. 40,54,247/- u/s 271D read with section 269SS of the Act and to Rs. 53,95,338/- u/s 271E read with section 269D of the Act.

December, 2001 keeping in view of Rules 19 and 20 as well as the decision of Delhi Benches of Tribunal in the case of CIT vs. Multiplan (India) Ltd. 38 ITD 320. The appeal of the assessee was dismissed as unadmitted. Thereafter, miscellaneous application was filed in 2008 and the miscellaneous application was numbered as No. 21/JP/2008. The said miscellaneous application was disposed of by the Co-ordinate Bench vide order dated 15.02.2009. Thereafter, the assessee carried the matter before the Hon’ble Rajasthan High Court in ITA No. 634/JP/2009. The Hon’ble Rajasthan High Court remanded back the matter to the Income Tax Appellate Tribunal for deciding it afresh on merits. The appeal of the assessee after the matter was set aside by the Hon’ble High Court was listed for hearing on various occasions since from 12.04.2018 to 10.08.2019 more than 6 opportunities were given to the assessee. Nobody appeared despite various notices issued through RPAD. Consequent to this fact, the co- ordinate Bench decided the appeal of the assessee on merits vide order dated 09.08.2019. Thereafter, the assessee again filed miscellaneous application in MA No. 11/JP/2021 and expressly the purpose of this appeal as directed by the Hon’ble High Court which is to hear the contentions on its merits for which the reasons were stated in the affidavit filed, in support of MA filed. Considering the direction of the Hon’ble Jurisdictional High Court direction and filling of the detailed reasons by the assessee the MA was allowed and therefore, this appeal is decided after hearing of both the parties on merits with the above back ground.

3. The assessee has assailed following ground in this appeal:- “1. Under the facts and circumstances of the case the ld. CIT(A) is not justified in confirming the penalty of Rs. 4054247/- levied u/s 271D of IT Act 1961, for alleged violation of section 269SS of the Act.

2. Under the facts and circumstances of the case the ld. CIT(A) is not justified in confirming the penalty of Rs. 5395338/- levied u/s 271E of IT Act 1961, for alleged violation of section 269T of the Act.

3. Therefore it is prayed to cancel the penalty orders and delete the relevant demand.”

4. The ld. DR argued before the Bench that since there were two separate orders of lower authorities. The assessee should have filed two separate appeals and ld. DR submitted that the appeal of the assessee cannot be considered a single appeal when two separate orders under two separate defaults two appeal should have been filed and thus, the appeal of the assessee be disposed on this ground itself and is not maintainable.

4 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur 5. Per contra, the ld. AR objected the contentions of ld. DR and argued that the composite appeal is maintainable. In the case of Dalpatbhai Damjibhai v. CIT (1994) 205 ITR 144 (Guj), wherein orders under sections 143(3) and 171 were issued by same assessing officer on the same day and a single appeal was preferred against both orders. It was held that “if appeals are provided to the same authority against two or more orders passed by the Income Tax Officer, then merely because these appeals are provided by different clauses of section 254(1), it would be too technical to say that, for that reason, separate appeals should be filed and if a composite appeal is filed, then it should be regarded as incompetent. In a case where one of the two orders has become time barred, then it may not be regarded as improper not to entertain such a composite appeal. But where such a question does not arise and the appeal is otherwise not incompetent, there can be no justification in holding that a composite appeal of the type with which the court is concerned in this reference is not competent.”

6. Considering the above arguments and judicial decision of Hon’ble Gujarat High Court we are of the considered view that though two separate orders are there but the issue and the assessment year being same it would be too technical not to entertain one appeal of the assessee. Therefore, considering the ratio of judgement and the bench also noted that even the order of by the department to concede the issue raised by the ld. DR. Therefore, considering the decision of the Hon’ble Gujarat High Court, the appeal of the assessee is considered and decided by a single consolidated order even though there were two different orders of lower authorities on two separate defaults.

9. Aggrieved from the order of ld. DCIT, Range-1, Jaipur, the assessee has preferred an appeal before the ld. CIT(A). The relevant finding of ld. CIT(A) on the issue is as under:-

“24 In view of the above detailed discussion on the subject, I have come to the conclusion that for levying penalty u/s 271D of the 1.T.Act for violation of the provisions contained in Sec. 269SS, Expl. (iii) under that section says, loan or deposit" means that "loan or deposit of money". In this case, it has amply been proved by the facts mentioned in the order that the transaction between the two sister concerns partake the character of loan or deposit. Therefore, penalty u/s 271D of the 1.T.Act had correctly been levied by the Addl. CIT, Range-1, Jaipur 25 As regards the penalty levied u/s 271E of the IT Act for violation of the provisions contained in sec 269T of the IT Act, Expl. (ii) under that section lays down that deposit means any deposit of money which is repayable after a notice or repayable after a period. A period has not specifically been defined under the Act. Deposit can be for any length of period - say for a few days or a month or a year. The distinction between a loan or a deposit is that in the case of the former, it is ordinarily the duty of the debtor to seek out the creditor and to repay the money according to the agreement and in the case of the latter it is generally the duty of the depositor to go to the depositee and make a demand for it (Ref. 230 ITR 523 (Delhi). In this case, the borrower and the lender belong to the same group of companies and have common interest because of this fact, it cannot clearly be inferred whether the request of the creditor or the request of the debtor is involved Though there is thin distinction between the terms of loan or deposit, yet even the thin line of distinction as blurred in this case because of the common interest involved in both the companies in 9 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur these transactions Therefore, it can also be inferred that the repayment of money is also with regard to the deposits. Therefore, the penalty u/s 271E of the I.T Act has also correctly been levied by the Addl. CIT, Range-1, Jaipur.

10. The ld. AR appearing on behalf of the assessee has placed their written submission which is reiterated here in below; “1. The assessee is a non banking housing finance company. It is conducting its business under the same management and under one roof of M/s Rajasthan Lok Vikas Finance Resources Ltd., another company of the same group having common office premises, common managerial and working staff including common cashier. Sh. Lokesh Singh is the Managing Director of both the companies.

2. In order to minimize the operating cost, the entire affairs of the company are managed by personnel of M/s Rajasthan Lok Vikas Finance Resources Ltd., being principal company of the group. However, separate books of accounts are maintained by each company to record the transaction of each day.

3. In regular course of business, the common cashier makes payment on behalf of both the companies since he is holding cash of both the companies. The payments are made without ascertaining the cash balance of each company. Accordingly, a situation arises where there is excess of payment over receipt in both the companies. Therefore, when the day book is written, to meet the deficit, it is balanced by the cashier by passing entries towards transfer of cash from one company to another of a suitable and appropriate amount.

4. In course of assessment proceedings, AO in the assessment order u/s 143(3) dt. 12.01.1998 observed that assessee has accepted cash loans and deposits from M/s Rajasthan Lok Vikas Finance Resources Ltd. of Rs.40,54,247/- and repaid loan of Rs.53,95,338/- in cash which is in violation of section 269SS and section 269T of the Act. Interest is also paid on the amount of deposit. He therefore, initiated penalty proceedings u/s 271D and 271E of the Act.

10 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur 5. After initiating the penalty proceedings, the AO vide letter no.49 dt. 15.01.1998 referred the matter to Additional Commissioner of Income Tax for imposing the penalty. The Additional Commissioner of Income Tax after considering the submission of assessee held that assessee has violated section 269SS/269T and thus, imposed penalty of Rs.40,54,247/- u/s 271D and penalty of Rs.53,95,338/- u/s 271E of the Act.

6. Against the penalty order, assessee filed appeal before Ld. CIT(A) who upheld the levy of penalty as per Para 12 to 26 at Pg 15-22 of his order by holding that there is no unintentional intermingling of cash of the two sister concerns, interest has been paid on the outstanding amount of loan or deposit and therefore, there is violation of section 269SS & 269T of the Act and thus, the penalty levied u/s 271D & 271E is upheld.

7. Against the order of CIT(A) assessee filed appeal before Hon’ble ITAT but the same was dismissed ex-parte vide order dt. 07.12.2001. Against this order MA filed on 05.03.2008 by the assessee was dismissed vide order dt. 25.02.2009. However, the Hon’ble High Court vide order dt. 18.07.2017 quashed the orders of ITAT and directed the Tribunal to decide the merit afresh. Thereafter the Hon’ble ITAT vide its order dt. 09.08.2019 again dismissed the appeal of assessee ex-parte on merit. However, this order was not received but when passing of the order by Hon’ble ITAT came to assessee’s notice, assessee applied for certified copy of the order which was provided on 14.09.2020. After receipt of the order, again a MA was filed to recall the ex-parte order dt. 09.08.2019. The Hon’ble ITAT vide its order dt. 29.07.2022 allowed the MA and recalled the ex-parte order dt. 09.08.2019.

Submission:-

11 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur Resources Ltd. is of the nature of loan or deposit and if yes whether there is a reasonable cause for entering cash transaction.

"Deposit" and "loan"—These two are not identical in meaning. It is true that both in the case of a loan and in the case of a deposit there is a relationship of a debtor and a creditor between the party giving money and the party receiving money. But in the case of a deposit, the delivery of money is usually at the instance of the giver and it is for the benefit of the person who deposits the money—the benefit normally being earning of interest from a party who customarily accepts deposits. Deposits could also be for safe-keeping or as a security for the performance of an obligation undertaken by the depositor. In the case of a loan, however, it is the borrower at whose instance and for whose needs the money is advanced. The borrowing is primarily for the benefit of the borrower although the person who lends the money may also stand to gain thereby by earning interest on the amount lent. Ordinarily, though not always, in the case of a deposit, it is the depositor who is the prime mover while in the case of a loan, it is the borrower who is the prime mover. The other and more important distinction is in relation to the obligation to return the amount so received. In the case of a deposit which is payable on demand, the deposit would become payable when a demand is made. In the case of a loan, however, the obligation to repay the amount arises immediately on receipt of the loan. It is possible that in case of deposits which are for a fixed period or loans which are for a fixed period, the point of repayment may arise in a different manner. But by and large, the transaction of a loan and the transaction of making a deposit are not always considered identical."

When this meaning is applied to the facts of assessee’s case, it can be noted that it is not ascertainable as to who is the prime mover and when the amount is to be repaid. In fact the funds were transferred only considering the business exigencies since the cash was handled by the common cashier who was responsible for making payment. Therefore, whenever the payment was made which is not supported by the cash as per cash book but was made from the cash available in the books of 12 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur other concern, entry was made in the books of accounts by transferring the cash amount from that concern to the assessee’s cash book. Hence, such transaction cannot be characterized as loan or deposit and thus, there is no violation of section 269SS/269T of the Act. Reliance in this connection is placed on the following cases:-

Muthoot M. George Brothers Vs. ACIT 46 ITD 10 (Cochin) (Trib.) (Case Laws Compilation PB 1-9) The Hon’ble ITAT at Para 12 of the order held as under:-

There are transfer of funds from and to the sister concerns. There is 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 are owned by the same family group of people with a common managing partner with centralised accounts under the same roof. Transfer of funds has taken place in a whimsical manner. Therefore, it is rather difficult to say that the transactions are 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 before us all that can be gathered is that funds have been transferred from and to the sister concerns as and when required and since the managing partner is 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 other words, the decision to give and the decision to take rested with either the same group of people or with the same individual. In such circumstances of the case, we hold that the transactions inter se between the sister concerns and the assessee cannot partake of the nature of either "deposit" or "loan", though interest might have been paid on the same. Excepting for the transfer of funds being witnessed in the books of accounts of the concerned firms, no material is on record to show issue of receipt or pronote in evidence of accepting a deposit or accepting a loan. Therefore, we hold that the transactions as are found in the books of accounts of the assessee cannot be termed as deposits or loans as understood in common parlance. It only represents diversion of funds from one concern to another depending upon the exigencies of the business. Further, the transactions have not been impeached as non-genuine or bogus. Hence, the provisions of ss. 269SS and 269T are not attracted to the facts of the case. Even if they were to apply, in the facts and circumstances explained above, the action of the assessee firm in accepting the funds in cash or making refunds of such funds in cash can be ascribed to its bona fide belief that it would not attract the provisions of ss. 269SS or 269T given the nature of the transactions and the circumstances of its case. Bona fide belief coupled with the genuineness of the transactions will constitute reasonable cause for not invoking the provisions of ss. 271D

Gururaj Mini Roller Flour Mills Vs. ACIT (2015) 118 DTR 218/ 231 Taxman 662 (AP) (HC) (Case Laws Compilation PB 10-14) The Hon’ble High Court at Para 16, 17 & 18 of the order held as under:-

Ridhi Sidhi Infraprojects Pvt. Ltd. Vs. JCIT order dt. 18.03.2013 (Jodhpur) (Trib.) (Case Laws Compilation PB 36-57) The relevant Para 6, 8 & 9 of the order reads as under:-

14 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur ‘loan’ or ‘deposit’ as ‘loan or deposit of money’. The Chapter in which section 269SS falls reads as ‘mode of taking or accepting certain loans or deposits’. Thus, only loans/deposits fall under the definition of the term ‘certain money’ and not otherwise. In this case, the assessee has a running-account with M/s Om Prakash Mahesh Kumar & Party, i.e. the AOP. This fact has not been denied, rather, has been accepted by the A.O. himself. Hence, the money accepted by the assessee would not, per se, become a loan as there is no ‘principal’. It is in the nature of running a current account where the amount is credited by an amount received and debited by an amount paid. The assessee has not classified this account under the heading ‘loan funds’ in the balance sheet but has classified it as ‘other liability’ under the heading ‘current liabilities and provisions’. Such a receipt from and payment to of money according to availability of funds, inter se the assesseecompany and the AOP when the assessee-company has a substantial interest in it cannot be treated as receipt of loan, even if the interest is credited in this account on running outstanding balances.

8. Likewise, we are also in agreement with the ld. A.R. that these transactions can be treated as transactions between the two sister concerns and the transactions undertaken between the sister concerns definitely fall outside the purview of provisions of section 269SS of the Act. The A.O. has not accepted this theory propounded by the assessee on the reasoning that the nature of businesses, mainly of both the concerns are different, and there are no common accounts and management and the assessee has only 0.50% share in the AOP. According to the assessee, these are not relevant considerations to decide whether these are sister concerns or not. The A.O. as well as the ld. CIT(A) have tried to decide this issue only on the basis of the percentage of shares. They have stated that only when the assessee company has 10% beneficial interest in the other concern only then the transacting parties can be treated as sister concerns. Although the term ‘sister concern’ is not defined in the Act anywhere, but in common parlance, if two concerns have interest in each other, these are called as sister concerns. As per the provisions of sec. 40(a)(ii) of the Act where an assessee is an AOP, any payment of expenditure made to its member may be called for disallowance if it is excessive or unreasonable. Accordingly, the AOP and the assessee company have to be treated as ‘sister-concerns’. Apart from this, registered offices of both are situated in the same premises, namely, Ujjawal Apartments, Udaipur. The main Director, namely, Shri Mahendra Tak holds 80% shares in the company alongwith his wife and son; and he is also the main member of AOP holding 64.25% share in the profits along with wife and son. Thus Shri Mahendra Tak controls and manages the activities of both the concerns in such a manner that the transactions between the assessee and its AOP can surely be treated as a transaction between the two sister concerns. The A.O. has not disputed

15 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur and doubted the genuineness of the transaction. Therefore, when a genuine transaction is undertaken between the two sister concerns, by way of cash payments, in contravention of provisions of section 269SS, penalty u/s 271D is not leviable. Accordingly, on the cash transaction of Rs. 3.25 crores between the assessee and its AOP penalty u/s 271D is not leviable.

Hindustan Steel Ltd. Vs. State of Orissa (1972) 83 ITR 26 (SC) The Hon’ble Supreme Court at Para 5 of the order held as under:-

CIT Vs. Maheshwari Nirman Udyog (2008) 302 ITR 201 (Raj) (HC) (Case Laws Compilation PB 15-25) The Hon’ble High Court at Para 11 to 13 of the order held as under:-

11. Considering the aforesaid aspects of the matter, in our view, the finding given by the appellate authority as well as the Tribunal that the transaction in question is a genuine transaction, cannot be disturbed by this Court in the present appeal. It is also required to be noted that s. 269SS has to be read along with s. 273B of the Act and at the time of awarding penalty, the authority is required to consider whether there was a reasonable cause for the said failure as envisaged under s. 269SS of the Act. While examining the constitutional validity of s. 269SS, the hon'ble Supreme Court in the case of Asstt. Director of Inspection (Inv.) vs. Kum. A.B. Shanthi (2002) 174 CTR (SC) 513 : (2002) 255 ITR 258 (SC) has observed as under :

" It is important to note that another provision, namely, s. 273B was also incorporated which provides that notwithstanding any thing contained in the provisions 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 such failure and if the assessee proves that there was 17 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur reasonable cause for failure to take a loan otherwise than by account payee cheque or account payee demand draft, then the penalty may not be levied. Therefore, undue hardship is very much mitigated by the inclusion of s. 273B in the Act. If there was a genuine and bona fide transaction and if for any reason the taxpayer could not get a loan or deposit by account payee cheque or demand draft for some bona fide reasons, the authority vested with the power to impose penalty has got discretionary power."

12. Considering the aforesaid aspect of the matter and considering the fact that the appellate authority as well as the Tribunal has ultimately found that the respondent-assessee has given reasonable explanation for receiving such payment in cash and there was no mens rea on the part of the assessee. This aspect has also been examined by the Gauhati High Court in the case of CIT vs. Bhagwati Prasad Bajoria (HUF) (2003) 183 CTR (Gau) 484. While relying upon the decision of the hon'ble Supreme Court, the Gauhati High Court has observed in paragraph 7 of its judgment as under:

" Keeping in view the object of introducing s. 269SS the Legislature has given discretion to the assessing authority under section 273B of the Income-tax Act to levy the penalty as provided under s. 271D of the Act or not. Under s. 273B, if the Court finds that there was a reasonable and sufficient cause for not imposing the penalty on the assessee in the given facts and circumstances of the case the penalty shall not be levied.

The facts which emerged in the case are that as the result of advancement of the loan by Umadutta Jhunjunwalla on three differ ent dates the assessee has executed the promissory notes in favour of Umadutta Jhunjunwalla. The transaction of loan has found place in the books of account of the assessee as well as the lender of the loan. None of the authorities have reached the conclusion that the transaction of the loan was not genuine and it was a sham transaction to cover up the unaccounted money. It appears to us that the assessee felt need of money and thus he approached the money-lender for advancement of the money, the transaction is reflected in the promissory notes executed by the assessee in favour of the lender. When there is an immediate need of money the person cannot get such money from the nationalised bank to satisfy the immediate requirement. To satisfy the immediate requirement of money the person normally approaches the money-lender or his friend or relative who could lend money to him to satisfy his immediate requirement. In those circumstances it cannot be said that the assessee has entered into a transaction to avoid the payment of tax or to defraud the Revenue. The element of mens rea is not borne out from the nature and the manner in which the transaction was carried out. In these

18 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur circumstances we do not find any justification or reasonable cause to remand the matter for adjudication afresh by the Commissioner of Income-tax for consideration of reasonableness within the meaning of s. 273B of the Act. In the facts and circumstances of the case we hold that the Tribunal was justified and correct in law in upholding the judgment of the Commissioner of Income-tax in deleting the penalty of Rs. 4,50,000 imposed on the assessee under s. 271D of the Income- tax Act, though for the different reasons."

13. Considering the aforesaid aspect of the matter, in our view, it cannot be said that any substantial question of law arises for determination of the Court in the present appeal. We, therefore, do not find any substantial question of law in the present appeal and the same stands dismissed with no order as to costs.

CIT Vs. Balaji Traders (2008) 303 ITR 312 (Mad) (HC) (Case Laws Compilation PB 26-29) The Hon’ble High Court at Para 10 to 13 of the order held as under:-

11. In the instant case, the CIT(A) and the Appellate Tribunal found that (i) there was business exigency forcing the assessee to take cash loans for the purpose of honouring the commitment, viz., issuance of cheque on a particular date ; (ii) the creditors were genuine persons and the transactions were never doubted by the authorities below; and (iii) there was no revenue loss to the State exchequer, and satisfied that the assessee has shown reasonable cause for the above transactions.

12. The authorities have also noticed that all the transactions were brought into account of the assessee and there were corresponding entries in the books of account of the respective parties/creditors which satisfied the test of business exigency.

13. Once the said finding is arrived at by the Tribunal on the facts, as held by the Delhi High Court in CIT vs. Parma Nand (2003) 180 CTR (Del) 489 : (2004) 266 ITR 255 (Del), which was followed by this Court in CIT vs. Ratna Agencies (2006) 284 ITR 609 (Mad) that that the finding recorded by the Tribunal as to the reasonable cause is 19 M/s Lok Vikas Housing Funds Ltd. vs. Addl. CIT, Range-1, Jaipur essentially a finding of fact and no question of law much less a substantial question of law would arise, we do not have any hesitation to hold that it may not be proper for this Court to interfere with such a finding of fact. CIT Vs. Sunil Kumar Goel (2009) 315 ITR 163 (P&H) (HC) (Case Laws Compilation PB 30-35) The Hon’ble High Court at Para 14 of the order held as under:- 14. The Tribunal was right in recording its conclusion that a "reasonable cause" had been shown by the respondent assessee. The Tribunal relied on the fact that the respondent assessee had produced his cash books, depicting loans taken by him unilaterally before the Revenue. Another fact taken into consideration was that no prejudice was caused to the Revenue in the instant action of the respondent assessee inasmuch as the respondent assessee did not attempt by the impugned act to avoid any tax liability. Furthermore, there is no dispute about the fact that the instant cash transactions of the respondent assessee were with the sister concern, and that, these transactions were between the family, and due to business exigency. A family transaction, between two independent assessees, based on an act of casualness, specially in a case where the disclosure thereof is contained in the compilation of accounts, and which has no tax effect, in our view establishes "reasonable cause" under s. 273B of the Act. Since the respondent assessee had satisfactorily established "reasonable cause" under s. 273B of the Act, he must be deemed to have established sufficient cause for not invoking the penal provisions (ss. 271D and 271E of the Act) against him. In view of above, penalty confirmed by Ld. CIT(A) be directed to be deleted.”

The identity and genuineness of the transactions incurred not in question the liability of the cash in the respective company’s cash book is also not disputed by either company. Merely, the assessee company has paid the interest, transaction between sister concern company cannot be considered as equated with the stern provision of the Act. Based on the arguments, the ld. AR of the assessee heavily relied upon the decision of the Jurisdictional High Court in 302 ITR 201 (HC Raj).

12. Per contra, the ld. DR objected that there should be two separate appeals and the assessee has merely filed a single appeal in respect of two different penalty orders. On merits the ld. DR supported his arguments based on the findings recorded in the orders of the ld. DCIT, Range-1, Jaipur and order of ld. CIT(A) on merits. The ld. DR further submitted that this tribunal has decided the appeal of the assessee on facts and on its merits. The Tribunal has rightly pointed out in the earlier order that the assessee remained non-compliant and not presented the required record at the time of various opportunities granted. The fact that the assessee working through its various branches cannot take a plea that in all the branches no separate cashier available and maintained mixed record for cash transaction, no tax statute provides such type of adjustment in the cash transactions between the sister concern as permissible. In the light of the fact that the assessee has paid interest on such transactions which is clearly reflected in the balance-sheet as such and that is why the and therefore, the penalty levied u/s 271D and 271E of the Act should sustained.

13. We have considered the rival contentions and submission placed on record by both the parties, the orders of the lower authorities and also gone through the judicial decision cited before us to drive home to the contentions so raised. The bench noted that it is not disputed by the revenue that though the order of the ld. CIT(A) is a single order and was earlier decided by the co ordinate bench by a single order. The said issue was also not taken up before the Hon’ble High Court when the assessee moved before the High Court against the order of ITAT. The Hon’ble Jurisdictional High Court directed to decide this appeal on merits. Based on the arguments and decision of the Hon’ble Gujarat High Court in the case of Dalppatbhai Damjibhai Vs. CIT 205 ITR 144 (Guj) this appeal is considered as maintainable on this aspect. In view of these the appeal is decided with consolidated order for two separate defaults by the assessee. The Bench further noted that the levy of penalty is confirmed by the lower authority on account of receipt of cash and payment in cash between two companies i.e., assessee and M/s Rajasthan Lok Vikas Finance Resources Ltd. Both the companies are regularly assessed to tax. There is no dispute by the parties that the transactions between them are not genuine and unrecorded transaction in either of the assessee company. The source of cash already explained and there is no adverse observation on these aspects of cash recorded as paid and received from each other. The revenue has not controverted to the factual position that both the companies were operating from same premises and source of cash were out of the disclosed sources. As the cashier was operating for both the company used the cash of the either company and passed necessary entry to complete the books and record the correct state of affairs and there is no doubt about genuineness of the transactions recorded.

The bench noted that cashier makes payment on behalf of both the company, i.e. assessee and M/s. Rajasthan Lok Vikas Finance Resources Ltd. The cashier made the payment without ascertaining the cash balance of each company. Based on this action it has happen that in one company there is excess cash the cash book and this excess cash receipt or paid to each company is accounted in cash as per the availability of cash in each company. There is no question about the source of cash in each company by the revenue. Merely, the amount paid or received is in cash and interest is paid the same is considered as advances in violation of section 269SS/T and consequent thereupon considered it for levy of penalty u/s. 271D/E of the Act.

These transactions are made during the course of business and just to avoid the deficit of cash which is arisen on account of the common cashier. This regular transaction out of the disclosed sources and is not recorded with an intent to considered it as loan or deposit. Merely on the regular balance interest paid the transaction recorded by the cashier to settle the deficit in the cash between the two company is not a loan as it is construed with purpose for which the provisions are enacted in the law. The transfer of money from one company to another with a specific intention is a mere book adjustment and cannot be considered as loan or deposit. This regular, bonafide and genuine transaction recorded as book adjustment cannot be termed considered as 269SS/T. We have gone through the orders of lower authorities and various judicial decisions cited by the ld. AR of the assessee.

The ld. AR of the assessee cited decision of jurisdictional High Court in the case of CIT vs. Maheshwari Nirman Udyog reported in (2008) 302 ITR 201 (HC Raj) and the relevant part of the the judgment, is as under:-

“11. Considering the aforesaid aspects of the matter, in our view, the finding given by the appellate authority as well as the Tribunal that the transaction in question is a genuine transaction, cannot be disturbed by this Court in the present appeal. It is also required to be noted that s. 269SS has to be read along with s. 273B of the Act and at the time of awarding penalty, the authority is required to consider whether there was a reasonable cause for the said failure as envisaged under s. 269SS of the Act. While examining the constitutional validity of s. 269SS, the hon'ble Supreme Court in the case of Asstt. Director of Inspection (Inv.) vs. Kum. A.B. Shanthi (2002) 174 CTR (SC) 513 : (2002) 255 ITR 258 (SC) has observed as under : "It is important to note that another provision, namely, s. 273B was also incorporated which provides that notwithstanding any thing contained in the provisions 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 such failure and if the assessee proves that there was reasonable cause for failure to take a loan otherwise than by account payee cheque or account payee demand draft, then the penalty may not be levied. Therefore, undue hardship is very much mitigated by the Inclusion of s. 273B in the Act, there was a genuine and bona fide transaction and if for any reason the taxpayer could not get a loan or deposit by account payee cheque or demand draft for some bona fide reasons, the authority vested with the power to impose penalty has got discretionary power."

“Keeping in view the object of introducing s. 269SS the Legislature has given discretion to the assessing authority under section 273B of the Income-tax Act to levy the penalty as provided under s. 271D of the Act or not. Under s. 273B, if the Court finds that there was a reasonable and sufficient cause for not imposing the penalty on the assessee in the given facts and circumstances of the case the penalty shall not be levied. The facts which emerged in the case are that as the result of advancement of the loan by Umadutta Jhunjunwalla on three different dates the assessee has executed the promissory notes in favour of Umadutta Jhunjunwalla. The transaction of loan has found place in the books of account of the assessee as well as the lender of the loan. None of the authorities have reached the conclusion that the transaction of the loan was not genuine and it was a sham transaction to cover up the unaccounted money. It appears to us that the assessee felt need of money and thus he approached the money-lender for advancement of the money, the transaction is reflected in the promissory notes executed by the assessee in favour of the lender. When there is an immediate need of money the person cannot get such money from the nationalised bank to satisfy the immediate requirement. To satisfy the immediate requirement of money the person normally approaches the money-lender or his friend or relative who could lend money to him to satisfy his immediate requirement. In those circumstances it cannot be said that the assessee has entered into a transaction to avoid the payment of tax or to defraud the Revenue. The element of mens rea is not borne out from the nature and the manner in which the transaction was carried out. In these circumstances we do not find any justification or reasonable cause to remand the matter for adjudication afresh by the Commissioner of Income-tax for consideration of reasonableness within the meaning of s. 273B of the Act. In the facts and circumstances of the case we hold that the Tribunal was justified and correct in law in upholding the judgment of the Commissioner of Income-tax in deleting the penalty of Rs. 4,50,000 imposed on the assessee under s. 271D of the Income-tax Act, though for the different reasons."

keeping in mind the legislative intention of giving of the discretion u/s. 273B to levy the penalty or not based on the reasonable and sufficient cause, we feel the ratio of judgment cited by the assessee’s case is covered by that discretion. Following the judgment cited we are of the considered view that in this case also there exist a reasonable cause and plausible reason. The transactions are duly recorded in the books of the both companies and considering the explanation given the assessee and the judicial precedent of jurisdictional High Court we direct to the levy of penalty u/s. 271D and 271E of the Act in this case. Accordingly, the grounds of appeal raised by the assessee is allowed.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open Court on 12/01/2023.