TaxTMI 
TaxTMI 
2023 (10) TMI 125
X X X X Extracts X X X X
X X X X Extracts X X X X
.... records perused. 3. Briefly stated the facts leading to present appeals are such that the assessee is engaged in the business of sale of liquor and assessed regularly by Income-tax Department. A search u/s 132 was conducted on 07.01.2016 upon assessee wherein two documents inventorised as "LPS-01-Page 135" and "LPS-02-Page 48" were seized. Based on "LPS-01-Page 135", the AO framed a view that the assessee had taken/repaid cash-loans from/to Shri Laxmi Narayan Shivhare and based on "LPS-02-Page 48", he formed a view that the assessee had taken/repaid cash-loans from/to other persons; that all these loans were in contravention of sections 269SS/269T which attracted penalties u/s 271D/271E for AY 2013-14 to 2015-16. Therefore, during the course of assessment-proceeding, Ld. AO issued show-cause notice dated 19.07.2018 to assessee, in response to which the assessee made a written-submission and stated that he has never carried out any loan transaction. Subsequently, the AO initiated penalty-proceeding on the same premise that the transactions mentioned in those documents represented cash loans taken/repaid by assessee in violation of section 269SS/269T; finally he imposed penalties....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in his hands u/s 69/69A/69B of the act. Ld. AR strongly contended that no such exercise has been done by AO. He submitted that the AO has just drawn one-sided, self-made conclusion that the assessee has taken cash loans from Laxmi Narayan Shivhare. Without prejudice, Ld. AR also submitted that the entire "LPS-01-Page 135" does not even demonstrate that there were transactions of cash-loans done by assessee. In fact, there are transactions of Demand-Draft, Cheques, Plots, lands, etc. noted in the said document and at the end of document, there is a mention of deposit of Rs. 33,13,000/- at the show-room. How these transactions, Ld. AR argued, demonstrate that the assessee has taken/repaid loans? Ld. AR submitted that the inference taken by AO that the assessee has taken/repaid loan is totally vague and baseless. With these submissions, Ld. AR strongly contended that the AO has derived unsustainable conclusion and thereby visited the assessee with penalty, which must be deleted. 7. Per contra, Ld. DR vehemently supported the orders of lower authorities. 8. We have considered rival submissions of both sides and perused the material held on record. After a careful consideration, w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ply mutadis mutandis. Applying same, we delete the penalty of Rs. 11,00,000/-. 11. Regarding the penalty of Rs. 48,32,000/- qua the alleged loans taken from other persons, Ld. AR drew our attention to the seized document "LPS- 02-Page 48". Ld. AR submitted that the said document nowhere mentions that the assessee has taken any loan, it is a mere presumption and conjecture of AO that the notings in document represent cash-loans taken by assessee. He submitted that the assessee is engaged in liquor business and sometimes lump-sum cash is received/brought from shops through/with the help of different persons. He emphasized that during the course of proceedings before AO, the assessee has explained this fact of receipts from shops but the AO has rejected assessee's explanation as unsatisfactory and made a far-fetched inference that the assessee has taken cash-loans. 11.1 Ld. AR further submitted that if at all the AO believed that the assessee had taken loans from different persons, he must have made enquiries from those very persons. Moreover, it was legally incumbent upon the AO to call those persons to explain the sources of loans having been given to assessee and make necessa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unt of such loan and deposit is Rs. 10,000 or more. This prohibition will also apply in cases where on the date of taking or accepting such loan or deposit, any loan or deposit taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment has fallen due or not), and the amount or the aggregate amount remaining unpaid is Rs. 10,000 or more. The prohibition will also apply in cases where the amount of such loan or deposit, together with the aggregate amount remaining unpaid on the date on which such loan or deposit is proposed to be taken, is Rs. 10,000 or more." Ld. AR contended that the legislative intent of bringing section 269SS/269T as explained by CBDT clearly encompasses the assessee's case. Therefore also, the lower-authorities are not justified in imposing/confirming the penalties. 11.4 With these submissions, Ld. AR argued that the lower authorities have wrongly taken conclusions against assessee and imposed penalty which is not sustainable. 11.5 Per contra, Ld. DR defended the revenue's case and prayed for upholding of penalty. 11.6 We have considered rival arguments of both sides and perused the orders of lower authorities ....