2013 (10) TMI 983

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....f law :        "(1) Whether, in view of the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in confirming the penalty of Rs. 1,92,000 under section 271D of the Income-tax Act, 1961 ?          (2) Whether the penalty can lawfully be imposed by assuming what the assessee could have done instead of what the assessee has actually done ?        (3) Whether the justification of explanation is to be judged on the basis what the assessee could have done instead of on the basis what the assessee has done ?" We have heard learned counsel for the parties and find that the appeal does not raise the ....

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....ment in order to avoid the penal action of the Excise department. The Commissioner of Income-tax (Appeals), vide his order dated November 23, 1993, accepted the explanation given by the assessee and set aside the impugned penalty under section 271D of the Act. Further, in appeal the Tribunal, vide order dated April 24, 2000, restored the order dated December 23, 1992, of the assessing authority and observed as under :            "17. In this case, from the explanation of the assessee, the urgency of disbursing bonus on March 8, 1991, does not seem to be plausible as the same could have been disbursed even on the next day also because in case the assessee had taken the amount by ed paye....

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.... same day. Hence, we conclude that in the existing circumstances of the case of the assessee, the Commissioner of Income-tax (Appeals) has failed in appreciating that there was absolutely no urgency in accepting the bearer cheque in disbursing the bonus to its workers by the assessee on March 8, 1991, as the same could have been easily postponed for at least one more day for making the payment to its workers. The learned Commissioner of Income-tax (Appeals) has further failed in appreciating that since both the parties were operating and had their bank accounts issued on March 8, 1991, could have been done on the same day and there was no justification in accepting the bearer cheque in violation of section 269SS of the Income-tax Act, 1961.....