2018 (3) TMI 1183 - AT - Income Tax

ITA overturns penalty under Section 271D for business income deposits

Shri Vakeel Singh Kansana Versus Addl. CIT, Range 3, Gwalior

The ITAT allowed the appeal, overturning the penalty of Rs. 1,70,000 imposed under Section 271D of the Income Tax Act. The ITAT held that the deposits, ... Penalty u/s 271D - assessee has received three loans in cash in contravention of provisions of Section 269SS - Held that:- From the bank account at page 6 of the assessment order, it is seen that the assessee has received cash from the five persons in SB Account No.881 and CD92 and as per CIT(A) order an amount of ₹ 1,68,500/- was deposited in A/c No. CD 92 as received in cash from Shri Arvind Sikarwar. Therefore, we find there is factual errorin the order of the lower authorities which the ld. DR could not reconcile with the support of relevant material evidence at the time of hearing. Merely stating that just because mischievously or erroneously the amount got treated by the CIT(A) as freight receipts admitted position that they were loans as such cannot be ignored is not sufficient to prove the charge of receipt of loans in cash, in contravention of provisions of Section 269SS of the Act. It is evident from the above that the freight receipt from dumpers as deposited in bank account SB No. 881 and CD 92 by the assessee were treated as business/freight receipt by the ld. CIT(A). As such, the charge framed for levy of penalty get changed by treating the cash deposits in the bank account of the assessee as freight receipts and estimating income therefrom. The ld. DR has not controverted these facts. Once the bank deposits are treated as freight receipt or business receipt for estimating income of the assessee, the same cannot be considered as loans in violation of Section 269SS of the Act. Penalty levied u/s 271D is hereby deleted. - Decided in favour of assessee Issues Involved:1. Whether the penalty under Section 271D of the Income Tax Act, 1961, was correctly imposed on the assessee for receiving loans in cash in contravention of Section 269SS.2. Whether the proper and reasonable opportunity was provided to the assessee before levying the penalty.3. Whether the amount considered as income by the CIT(A) and ITAT should affect the imposition of penalty under Section 271D.Detailed Analysis:Issue 1: Penalty under Section 271D for Receiving Loans in CashThe core issue revolves around the imposition of a penalty of Rs. 1,70,000 under Section 271D of the Income Tax Act for the assessee receiving loans in cash, violating Section 269SS. The Assessing Officer (AO) noticed that the assessee received three loans in cash totaling Rs. 1,70,000, which was in contravention of Section 269SS. The CIT(A) confirmed the penalty, stating that the loans were received in cash, and despite being treated as freight receipts, the violation of Section 269SS could not be ignored. The CIT(A) also noted that only 7.5% of the amount was taxed, not the entire sum, and since the loans were returned by account payee cheques, the penalty was justified. However, the ITAT found that the deposits in the bank accounts were treated as freight receipts by both the CIT(A) and the ITAT in the quantum appeal. Thus, the ITAT concluded that once the bank deposits are treated as business receipts, they cannot be considered loans in violation of Section 269SS, leading to the deletion of the penalty.Issue 2: Opportunity Provided to the AssesseeThe assessee argued that the penalty was imposed without providing a proper and reasonable opportunity. The CIT(A) and the ITAT considered the details and submissions provided by the assessee, including the explanation that the deposits were freight receipts, not loans. The ITAT noted that the CIT(A) and the AO had not reconciled the factual errors regarding the nature of the deposits. The ITAT emphasized that the charge of receiving loans in cash was not sufficiently proven, and the explanation provided by the assessee was not adequately countered by the Revenue.Issue 3: Treatment of Amount as IncomeThe CIT(A) and the ITAT in the quantum appeal treated the deposits in the bank accounts as freight receipts, applying a net profit rate of 7.5% on the total amount of Rs. 27,33,153. The ITAT confirmed that the income should be computed under Section 44AE, and any further addition would result in double taxation. The ITAT highlighted that the CIT(A) had already treated the deposits as business receipts, and thus, they could not be considered loans for the purpose of Section 269SS. The ITAT concluded that the penalty under Section 271D could not be imposed when the deposits were treated as business income.Conclusion:The ITAT allowed the appeal of the assessee, deleting the penalty of Rs. 1,70,000 under Section 271D. The ITAT held that the deposits treated as freight receipts and business income could not simultaneously be considered loans in violation of Section 269SS. The decision emphasized the need for a clear distinction between business receipts and loans, and the importance of providing a reasonable opportunity to the assessee before imposing penalties. The judgment underscored that once the nature of the deposits was established as business income, the basis for the penalty under Section 271D was invalidated.