2018 (11) TMI 1490

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....facts of the case. As such, the addition of Rs. 55,00,000/- is bad in law and may please be deleted. 3. That the ld. Commissioner of Income Tax (Appeals) has erred in law and facts of the case while making addition of Rs. 55,00,000/- under section 68 of the Income Tax Act, 1961 without appreciating the facts of the case and submissions of assessee. As such, the addition of Rs. 55,00,000/- is bad in law and may please be deleted. 4. That the ld. Commissioner of Income Tax (Appeals) has erred in law and facts of the case while confirming addition of Rs. 3,00,000/- under section 68 of the Income Tax Act, 1961 originally made by ld. AO under section 28(iv) of the Income Tax Act, 1961 without appreciating the facts of the case and submissions made by the assessee. As such, the addition of Rs. 3,00,000/- is bad in law and may please be deleted. 5. The assessee craves to add, alter, delete, modify or withdraw any of the above grounds at the time of hearing. 3. The brief facts of the case are that assessee filed his e-return of income on 25.9.2013 declaring net taxable income of Rs. 5,82,679/-. The return was processed u/s. 143(1) of the Income Tax Act, 1961 (in short "Act"). Later ....

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.... Rs. 58 lacs as unexplained cash u/s. 68 of the Act. Against the action of the Ld. CIT(A), Assessee is in appeal before the Tribunal. 4. Ld. AR for the assessee submitted that Ld. Commissioner of Income Tax (Appeals) has erred in law and facts of the case while enhancing addition of Rs. 3,00,000/- made by the AO to Rs. 58,00,000/- under section 68 of the Income Tax Act, 1961 which is beyond the powers of Ld. Commissioner of Income Tax (Appeals). As such, the addition of Rs. 55,00,000/- is bad in law and may please be deleted. He further submitted that Ld. CIT(A) has wrongly made the addition of Rs. 55,00,000/- under section 68 of the Income Tax Act, 1961. As such, the addition of Rs. 55,00,000/- is bad in law and may please be deleted. It was further submitted that Ld. Commissioner of Income Tax (Appeals) has erred in law and facts of the case while making addition of Rs. 55,00,000/- under section 68 of the Income Tax Act, 1961 without appreciating the facts of the case and submissions of assessee. As such, the addition of Rs. 55,00,000/- is bad in law and may please be deleted. It was further submitted that Ld. CIT(A) while confirming addition of Rs. 3,00,000/- under section 68 ....

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....grounds at the time of hearing. 8. In this case the AO has observed that assessee has shown loan of Rs. 88,00,000/- from his wife, Mrs. Shahina Quereshi, during the year under consideration. Out of Rs. 88,00,000/-, the assessee explained that Rs. 63,000/- was received from Mrs. Shahina Qureshi directly and Rs. 22,00,000/- received by the assessee as advance against sale of his proty and Rs. 3,00,000/- was wrongly considered in the name of his wife rather the same was transferred by assessee's own account and hence, should be considered as capital not unsecured loan. In respect of Rs. 22,00,000/-, received by the assessee as advance against sale of his property, the AO levied the penalty u/s. 271D of the Act and Ld. CIT(A) has also confirmed the penalty levied by the AO on the ground that the impugned amount is in the nature of loan. Against the Ld. CIT(A)'s action, the Assessee is in appeal before the Tribunal. 9. Ld. AR for the assessee submitted that Ld. CIT(A) has wrongly confirmed the penalty of Rs. 22 lacs u/s. 271D of the Act without appreciating that the provisions of Section 269SS of the Act are not applicable in the case of the assessee. As such, penalty of Rs. 22 lacs i....

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....edings should be initiated within a reasonable time. Since in the instant case such penalty proceedings have been initiated after a gap of more than four and half years from the completion of assessment proceedings u/s 143(3) of the Act, therefore, initiation of penalty proceedings, in our opinion, is barred by limitation. 9.1 Even otherwise also, the transaction is between husband and wife. Various benches of the Tribunal are holding that transaction of loan between husband and wife does not attract the provisions of section 269SS of the Act. The Kolkata Bench of the Tribunal in the case of Tuhinara Begum Hoogly Vs. JCIT Range 2, Hoogly ITA No. 2256/Kol/2014 order dated 04.10.2017 under somewhat similar circumstances cancelled the penalty levied u/s 271D of the Act by observing as under: "6. We have heard the rival submissions and we are of the view that the facts of the present case and the facts of the case referred to ITAT Kolkata in the case of Dr.B.G.Panda are identical . The Tribunal in the aforesaid case held as follows :- "Section 269SS is applicable to the deposits or loan. It is true that both in the case of a loan and in the case of a deposit, there is a relations....