TaxTMI 
TaxTMI 
2018 (8) TMI 1640
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....- ITA Nos. A.Y. Section under which penalty levied Penalty amount Nature 196/B/2014 2005-06 271D (violation of 269SS) 6,50,000 Accepting cash loan from one Shri Ashok Bhimappa Naik 197/B/2014 2006-07 271E (violation of 269T) 3,50,000 Repaying loans in cash to Shri Ashok Bhimappa Naik 198/B/2014 2007-08 271E (violation of 269T) 6,75,000 199/B/2014 2007-08 271D (violation of 269SS) 6,45,000 Accepting cash loan from Shri Ashok Bhimappa Naik 200/B/2014 2008-09 271D (violation of 269SS) 5,00,000 201/B/2014 2009-10 271D (violation of 269SS) 6,40,000 202/B/2014 2010-11 271D (violation of 269SS) 11,83,000 3. The Assessee is a Society running education institution for B.Ed. & D.Ed. courses. There was a Survey u/s.133A of the Act carried out at the office of the Assessee by the revenue on 6.10.2010. The case of the revenue was that the documents impounded at the t....
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....posing penalty, holding that there was nothing to show in the impounded documents that the Assessee accepted or repaid loans in cash contrary to the provisions of Sec.269SS and 269T of the Act. 5. The revenue filed appeal before the Tribunal against the order of the first appellate authority and the Tribunal in its order dated 22.1.2015 was pleased to uphold the order of the first appellate authority, holding as follows:- "12. A reading of the remand report clearly shows that the AO had verified the revised financial statements furnished by the assessee before the CIT(A). In the remand proceedings it is mentioned that the revised statements were tallying with the books of account and other impounded material. It is also mentioned that date of receipt and payment of cash loan, if any, was not ascertainable. For levy of penalty u/s. 271D as well as 271E, it is required for the AO to establish that assessee had accepted or repaid a loan or deposit in contravention of section 269SS/269T, as the case may be. This, in turn, requires to be shown that assessee had accepted loan or deposit in cash which is Rs. 20,000 or above, or repaid similar amount in cash. Without the detail....
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....that the impounded books have been replaced/tampered to remove all evidence of handloans from and to Chairman. These handloans are in the audited accounts, audited by the Chartered Accountant Sri. D.V. Daga, Membership No.213650, which were filed along with the Return of Income, after the survey. The Chartered Accountant Sri.D.V. Daga and Sri.Bhimappa B Chandargi, Accountant of the assessee, met the undersigned on 23.01.2015 and explained that the books/documents impounded during the course of survey were the primary basic accounts maintained by the Principal. These were then written fair by the Accountant Sri.B.B. Chandargi and then audited by the Chartered Accountant Sri.D.V. Daga. The final books of account based on these carried the signatures of the accountant and the auditor. These were not found during the survey. From this it is clear that the assessee's claim that proper books of account were not being maintained is incorrect. The Audited statement of accounts along with the audit report by a Chartered Accountant are filed with the returns are as back as 2005, 2006, 2007, 2008, 2009 and 2010. The final books of account were prepared by Sri. Chandragi, Accountant and au....
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....0.3.2015, after the order dated 22.1.2015 passed by the Tribunal, the revenue lodged a complaint with the police alleging tampering of the impounded documents. Even prior to the hearing of the appeal i.e., as early as 9.5.2014 the CIT, Belagavi vide letter dated 9.5.2014 addressed to the JCIT, VR Vijaypur, who was the appellant in the appeals before the Tribunal, intimated that it was not ascertainable as to who and when exactly replacement of books had taken place. In fact in page-3 of the police complaint dated 10.3.2015 it has been specifically stated so. Therefore, the revenue did not bring to the notice of the Tribunal any of the facts with regard to alleged tampering despite its knowledge that there were allegations of tampering. 8. The learned counsel for the revenue reiterated before us the stand taken by the revenue in the application for rectification and reiterated the prayer made by the revenue in this application. The prayer of the revenue in this regard has been extracted in the earlier part of this order. In short, the prayer is that the order of the Tribunal should be recalled and modified by setting aside the order of the CIT(A) cancelling penalties imposed on t....
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.... of the order of the Tribunal. (iii) The MA is silent as to when some of the impounded documents were tampered and that it was the Assessee who was responsible for the alleged tampering. In any event there is no conclusive evidence to show that there was in fact tampering of the records and therefore the MA filed on the ground that there had been tampering of documents is misconceived. Finally it was pointed out that the CBI/ACB/Bangalore in the report of investigation conducted in RC 16(A)/2016-CBI/ACB/Bangalore has filed its final report dated 25.1.2018 in the District Court, Dharwad, in CR No.567/18 wherein they have recommended closure of the case on the ground that investigation could not bring out credible evidence to identify the persons responsible for tampering of records and other facts such as when, where, who and how it was done. A copy of the report was filed before the Court. 10. We have given a careful consideration to the rival submissions. The power of the tribunal to recall or rectify its order u/s.254(2) of the Act can be invoked only when it is shown that there has been error apparent on the face of the order of the Tribunal. Admittedly, when the app....