M/S. SOFITRA IMPEX PVT. LTD.,NEW DELHI vs. ADDL. CIT, NEW DELHI

2. Since the facts involved in both the appeals are common, hence, for the sake of convenience, the same are being disposed off together by this consolidated order.

The brief facts of the case are that during the scrutiny proceedings of the assessee company, the Assessing Officer noted that the assessee company had received cash of Rs.6,29,000/- from Anwar Jalil Ahmed Khan, Rs. 7,30,000/- from Sofia Praveen Khan, both directors of the assessee-company and Rs.27,244/- from M/s. Softech Solutions Pvt. Ltd. On being apprised of the fact by the Assessing Officer, the assessee at first instance claimed before the AO that the assessee company had not accepted any cash deposit and in support submitted a cash book where there was no mention of receipts of the above amounts. The Assessing Officer treated the said cash book as unauthentic as it was not prepared as per accounting principles. The Assessing Officer also observed in the assessment proceedings that the auditor of the company in column No. 24(a) & (b) of Form 3CD, has not reported the details of amounts received and repaid in view of the provisions of section 269SS & 269T, whereas the Assessing Officer on scrutiny of accounts found that the assessee company has taken loan in cash on different dates & repaid the same in cash in contravention of section 269SS & 269T of the Act.

On the basis of above facts, the Assessing Officer initiated penalty proceedings u/s. 271D & 271E of the Act. In the penalty proceedings, the 1748 & 1749/Del/2012 assessee submitted that the money was received from director Smt. Sofia Praveen Khan as share application money for allotment of share capital, but the Board rejected the allotment of share and the money so received was repaid to her in cash. The Assessing Officer observed that it was neither a loan nor share application money, but was a temporary deposits with the company, as no interest is said to have been paid by the assessee on its repayment which is the precondition of a loan. The Assessing Officer, therefore, concluded that the assessee has received the money in cash in violation of section 269SS and repaid the same in cash in violation of section 269T of the Act and imposed a penalty of Rs.13,86,244/- u/s. 271D and Rs.2,95,500/- u/s. 271E of the Act. The assessee carried the matter in appeals before the ld. CIT(A), who after considering the penalty orders and the submissions of the assessee, confirmed the penalty orders passed by the Assessing Officer.

Thereafter the assessee had approached the Tribunal and by order dated 10.01.2017 the Tribunal has disposed of the appeals collectively with following findings :

The ld. DR, on the other hand, relied on the orders of the Assessing Officer and submitted that the assessee clearly violated the provisions of section 269SS and 269T of the Act and all the case laws relied by the ld. DR do not support the case of assessee because the assessee could not be able to submit any reasonable cause under which it received the money in cash and repaid the same in cash. The AO noted in the assessment order at page No. 2 & 3 that the cash book submitted was not authentic and manipulated one. The Tax Auditor has also hidden the actual cash payments received and paid in violation of section 269SS and 269T in its tax audit report.

We have considered the rival submissions and have gone through the entire material available on record and we find that the assessee has taken diverse stands at different points of time. In the assessment proceedings, initially the assessee stated that no cash payment has been received. In the penalty proceedings, it was stated that cash payment was received as share application money and was repaid to Sofia Praveen Khan on rejection of the offer by the Board of Directors. The appellant could not bring any evidence on record to support his claim regarding the amount received from Sofia Praveen Khan towards share application money and the rejection of the share capital allotment by the Board. The appellant has also failed to rebut the finding of the authorities below that once, both the depositors were the directors of assessee company, there was no reason to believe that the proposed offer of share capital allotment was withdrawn, for which no evidence is laid on record. The assessee also could not adduce any evidence before us to support its stand that the amount so received from 1748 & 1749/Del/2012 Sofia Praveen Khan was repaid by way of cheques or the amounts received from Sofia Praveen Khan was mentioned twice by the AO. The cash book submitted was not found authentic, as it was an extract typed on A-4 size paper as mentioned by the ld. CIT(A) in the impugned order. There is also no plausible explanation with respect to the amount received from M/s. Softech Solutions Pvt. Ltd. The Tax Auditor has also not reported true facts in respective columns of tax audit report as mentioned above. In presence of all these facts, we do not find any justification to interfere with the conclusions of the ld. Authorities below that the appellant has taken loan in contravention of section 269SS and has repaid the same in contravention of section 269T of the Act entailing penalty u/s. 271D and 271E of the Act. The case laws relied on behalf of the appellant do not render support to the appellant, as the appellant in the instant case has failed to explain any reasonable cause under which it received and repaid the loan in cash in violation of section 269SS and 269T of the Act. The ld. CIT(A) has dealt with the issue in detail and has passed a reasoned order. We accordingly, find no justification to interfere with the orders of the ld. CIT(A). As a result, both the appeals of the assessee deserve to be dismissed.

In the result, both the appeals of the assessee are dismissed.”

M.A. has been filed before us arguing that the two case laws of the Supreme Court have not been considered by the Bench while adjudicating the issue of penalty levied u/s 269 SS and 269T.

After giving thoughtful consideration to the matter on record and the submissions made, the Bench is of considered view that the two judgments cited by Ld. AR in no way of effects the merits of the case as discussed in para 7 of the order dated 10.01.2017 and reproduced above. The bench has duly appreciated the conduct of assessee as with regard to change of stand and how the assessee company was unable to establish before the Tax Authorities on the basis of any evidence that the disputed loans received in cash was even a genuine loan transaction.

The Bench is of considered opinion that violation was of Section 269SS of the Act which deals with the modes of accepting certain loans deposits and specified sums and Section 269T of the Act which deals with the modes of repayment of certain loans for deposits are violation which are not to be examined from the perspective the person who has given the loan or to whom the loan was returned but from the perspective of the recipient of the loan. Thus, the innocence pleaded on account of ignorance of law of Directors who are claimed to be non-resident is insignificant. There is no question of any benefit to the assessee company on the basis of claim of bona fides of the Directors.