2008 (2) TMI 114

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....he provisions of section 269SS when the assessee transferred the purchase price as Sarafi?" 2. The Assessment Year is 1991. The assessee, a limited company, is a subsidiary of another limited company M/s. Lallubhai Amichand and Company Limited (the creditor company). The assessee purchased goods from time to time from the creditor company as per following details : "Date Amount Rs. Rs.   26-5-1989 27-5-1989 7-6-1989 8-6-1989 8-6-1989 5,65,858 3,59,050 9,24,908       14,08,165 4,65,613 4,62,946 4,79,606   23,33,037"   3. As the assessee was not in a position to make payment of the outstanding purchase price immediately the parties arrived at....

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....ted. The assessee carried the matter in Appeal before the Commissioner (Appeals) who vide order dated 15.02.1994 confirmed the levy of penalty. The assessee carried the matter in Second Appeal before the Tribunal who has allowed the Appeal vide impugned order dated 30.11.1995. 5. Mr. B. B.Naik, learned Standing Counsel for applicant-Revenue has assailed the impugned order of Tribunal on the ground that the reasons assigned by the Tribunal are dehors the provisions of the Act. That for the purpose of imposing penalty the only thing which was material was the provision of Section 269SS of the Act which provides that no person shall after the specified date take or accept from any other person any loan or deposit otherwise than by an Accoun....

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....al or technical breach which does not warrant penalty as laid down by the Apex Court. That there was difference between the terms 'loan' and 'deposit'. The authorities below had treated both the terms as synonymous and therefore also no penalty was leviable in absence of any firm conclusion as to the nature of transaction. In support of the propositions reliance has been placed on the following decisions : [1] Asstt. Director of Inspection Vs. Kum A.B. Shanthi (2002)255 ITR 258 SC. [2] Hindustan Steel Ltd. Vs. State of Orissa, (1972) 83 ITR 26 SC.[1970] 25 STC 211 (SC) [3] CIT Vs. Saini Medical Store (2005) 277 ITR 420 (P&H). [4] CIT Vs. Bhagwati Prasad Bajoria (HUF) (2003) 263 ITR 487 (Gauhati). [5] Baidya Nath Plastic Indus....