TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 1182
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioner Income Tax (Appeals-2), Udaipur. The appellants have sought setting aside of the appellate orders, consequent to favorable adjudication of the following questions of law, which according to them are substantial questions of law: "1. "Whether the learned ITAT is justified in deleting the penalty u/s 271E without considering that the repayment of deposits of Rs. 54,93,095/- in cash made by the assessee to her related persons and which are self-evident from the cash book submitted by the assessee herself are squarely covered by the provisions of Section 269T?" 2. "Whether the learned ITAT is justified in treating the "repayments of deposits in cash" to a related person as reflected from the assessee's cash book as not covered under th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....epayment of loan or deposit attracting penalty under Section 271E of the Act of 1961. The Joint Commissioner, Income Tax, however, held that there was no occasion for the assessee to make huge payment in cash and such cash payment was a violation of provisions of Section 269T of the Act of 1961, calling for imposition of penalty under Section 271E of the Act of 1961. He thus inflicted a penalty of Rs. 54,93,095/-, vide its order dated 28.08.2015. Feeling aggrieved with the said imposition of penalty, the respondent preferred an appeal under Section 250 of the Act of 1961, which came to be allowed by the commissioner of Income Tax (Appeals-2), Udaipur vide his order dated 16.06.2017. The learned appellate authority observed that it is true....
X X X X Extracts X X X X
X X X X Extracts X X X X
....payee cheque or draft. Thus, following are the necessary ingredients for application of section 269T a. There is transaction of loan or deposits b. There is repayment of such loan or deposits c. Repayment is made otherwise than way of specified modes d. Repayment is made to any person 3.4.2 It is well settled judicial principle that burden of proof in relation to penalty proceedings is on the revenue, however, in the instant case, the JCIT has failed to establish with a finding as to whether (i) there is transaction of loan or deposit, (ii), there is repayment of such loan or deposit and (iii) there is repayment made otherwise than by way of specified mode. In the instant case, it has not been established whether deposit was taken,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was on the Revenue and that the Assessing Officer has failed to establish that the amount of Rs. 54,93,075/- in ACCS's account was towards a repayment of loan/ deposit, which by no stretch of imagination can be termed as her contribution towards Society. Mr. Bissa, learned counsel for the appellant contended that the learned Members of the Tribunal have erred in holding that the burden of proof in cases of penalty proceedings is on the Revenue. He argued that the onus lay upon the assessee to establish that the payment in cash, which has been made in the account of ACCS was not in violation of the provisions of Section 269T of the Act of 1961. We have considered the arguments advanced by Mr. Bissa and perused the material availabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an or advance by the ACCS, the cash payment made to it does not fall foul to Section 269T of the Act of 1961. There is nothing on record to show that there existed a loan or advance by said ACCS, repayment whereof has been made in cash. Argument of Mr. Bissa that the burden was on assessee to show that the payment was not in violation to Section 269T is misconceived and ex-facie contrary to settled canon of burden of proof. It is a settled proposition that the burden to prove lies upon a person who asserts a fact. In the facts of the present case assessee put forth her explanation and took a stand that there existed no loan or advance from ACCS and the amount was paid towards her contribution in the society. As such the burden enti....