2017 (2) TMI 460

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....(for short 'the Act') on the grounds inter alia that :- "1. The order of Ld. CIT (A) is not correct in law and facts. 2. On the facts and in the circumstances of the case as well as in law, the ld. CIT (A) has erred in deleting the penalty of Rs. 75,75,000/- imposed u/s 271E of the I.T. Act, 1961. 3. The appellant craves leave to add, amend any/all the grounds of appeal before or during the course of hearing of the appeal. 2. Briefly stated the facts necessary for adjudication of this case are : on the basis of assessment completed under section 143 (3) of the Act qua Assessment Year 200910, penalty proceedings u/s 271E of the Act were initiated calling upon the assessee to explain that the assessee company has made repayment of....

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....r before the ld. CIT (A) by way of filing appeal who has deleted the penalty. Feeling aggrieved, the revenue has come up before the Tribunal by way of filing the present appeal. 4. Assessee has not preferred to put in appearance despite issuance of the notice of 30.08.2016 and consequently, we proceeded to decide the present appeal with the assistance of the ld. DR as well as on the basis of documents available on the file. 5. We have heard the ld. Departmental Representative for the revenue to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 6. Undisputedly, assessee company has availed of the unsecured loan from M/s. Narsi Oil ....

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.... the company. The facts being so, I do not consider there is any merit in holding that the amount has been repaid in contravention of section 269T. Therefore I'm not inclined to sustain the action of the Addl, CIT in this regard. The decision of ITAT Pune bench in the case of Sunflower Builders Pvt. Ltd. vs DCIT 61 ITD 227 is directly on the point. The Hon'ble bench of ITAT has referred to the decisions of Hon'ble Supreme Court of India in the case of Bombay Steam Navigation Co Ltd (56 ITR 52) and decision of Hon'ble Gujarat High Court in the case of CIT 3 vs Ritu Rayon Pvt. Ltd. (TAXAP/2524/2009 4/4) and concluded that in case of transfer of loan through book entries, backed by letter of the lender to do so and acceptance l....

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....ment to M/s. Narsi Oil Refinery Private Limited and M/s. Gunvardhan Vyapaar Private Limited nor produced the balance sheet / books of account to prove the fact that payment is still pending in case of M/s. Fiscal Services Private Limited either during penalty proceedings or before the appellate proceedings before the ld. CIT (A). 10. Ld. CIT (A) has proceeded to delete the penalty by treating the averments made by the assessee company during appellate proceedings that they have repaid the money in case of first two companies by way of cheques and the payment to the third party is still pending, as a gospel truth without calling upon the assessee company to produce evidence to substantiate it's pleadings. 11. On the other hand, AO has cate....