TaxTMI 
TaxTMI 
2024 (2) TMI 790
X X X X Extracts X X X X
X X X X Extracts X X X X
....t that on the same set of information the A.O. made addition u/s 69A of Rs. 7,51,000/- considering the same as the unexplained income of the assessee. 3. On the facts and in the circumstance of the case and under the provisions of the law the CIT(A) erred in holding that the amended provision of section 269SS are applicable to the assessee in respect of cash advances received by the assessee against the Agreement to Sale entered by the assessee on 27.12.2011 and 19.08.2014. 4. On the facts and in the circumstances of the case the order passed u/s. 271D by the assessing officer is bad in law. 5. The Assessee craves leave to add, amend, or alter the grounds of appeal at the time of hearing. 3. Brief facts of the case are that the assessee is an individual filed his return of income on 05.08.2016 declaring a total income of Rs. 7,37,330/-. Subsequently, against the proceedings initiated under section 148. The assessee has declaring total income of Rs. 7,31,350/- on 31.12.2021. The reopening assessment on the case of assessee is completed on 21.03.2022 by making various addition. Out of the said addition there is an addition pertaining to un-explained mone....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein referred to as the depositor), any loan or deposit or any specified sum, otherwise than by an amount payee cheque or account payee bank draft or use of electronic clearing system through a bank account [or through such other electronic mode as may be prescribed] if, 1. the amount of such loan or deposit or specified sum or the aggregate amount of such loan, deposit and specified sum; or 2. on the date of taking or accepting such loan or deposit or specified sum, any loan or deposit or specified sum taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment Onas fallen due or not), the amount or the aggregate amount remaining unpaid; or 3. the amount or the aggregate amount referred to in clause (a) together with the amount or the aggregate amount referred to in clause (b) is twenty thousand rupees or more: Provided that the provisions of this section shall not apply to any loan or deposit or specified sum taken or accepted from, or any loan or deposit or specified sum taken or accepted by,- 1. the Government; 2. any banking company, post office saving bank or co-operative bank; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 85000/- 2. 20.06.2015 2015-16 95000/- 180000/- 3. 04.07.2015 2015-16 85000/- 265000/- 4. 08.08.2015 2015-16 90000/- 355000/- 5. 03.10.2015 2015-16 60000/- 415000/- 6. 28.11.2015 2015-16 30000/- 445000/- 7. 30.01.2016 2015-16 30000/- 475000/- 8. 20.02.2016 2015-16 55000/- 530000/- 8. Further, it is noted that at the time of making another agreement of sale with Shri Shiv Shambhu Singh for selling of his duplex house on 19.08.2014 for a total consideration of Rs. 45,50,000/- and the assessee has received Rs. 21,000/- as token amount at the time of executing the said agreement. An amount of Rs. 2,00,000/- received during the FY 2015-16. Accordingly, Ld. AO has made the addition of Rs. 7,51,000/- (Rs.5,30,000 + Rs. 21,000 + 2,00,000) in aggregate for all the aforesaid transactions. 9. Ground No.1: Challenging the penalty imposed by the department, Ld. AR submitted that since the amount received by the assessee in cash is covered under the definition of specified sum received above Rs. 20,000/- as per amendment brought in the statute w.e.f. 01.06.2015. Admittedly, the asses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Penalty provisions, being quasi criminal proceedings, cannot be invoked unless the party acted deliberately in defiance of law or acted in conscious disregard of its obligation. Hence, penalty cannot be levied on mere breach of technical or venial breach of the provisions of law or where breach flows from a bonafide belief. 12. Ld. AR further placed his reliance on various judicial pronouncements as under: 1.24 Your honour, it is a settled law that if default was under bona fide belief and unintentional then penalty u/s 271D shall not be levied. The assessee relied in following judicial pronouncements - (i) CIT vs. PREETI FUELS AND FLAMES P. LTD (2011) 330 ITR 129 (C.G.) (ii) CIT vs. SAINI MEDICAL STORE (2005) 276 ITR 79 (P&H) (iii) OMEC ENGINEERS vs. COMMISSIONER OF INCOME-TAX [2007] 294 ITR 599 (JHARKHAND). (iv) KEHAR SINGH & Ors. vs. STATE (AIR 1988 SC 1889) (v) ASSISTANT DIRECTOR OF INSPECTION VS. KUM. A.B. SHANTHI 255 ITR 258 (SC) (vi) CIT vs. Smt. DIMPAL YADAV 379 ITR 177 (ALL). 13. Ld. AR filed a written submission on the issue, as under: 1.25 Your honour, it is also a settled law if reasonable cau....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ect of bonafide belief on account of ignorance of law, we do not see any plausible reason to consider the plea of the Ld. AR. In a similar case, ITAT, Raipur has recently adopted a view regarding violation of provisions of section 269T in the case of Kamaljeet Kaur Gill v. Joint Commissioner of Income-tax in IT APPEAL NOS. 251 TO 253 (RPR.) OF 2022 vide order dated 06.09.2023, ratio of decision wherein is equally applicable in the present case, , wherein the observation of the tribunal are as under: Where assessee made repayment of loan in cash for reasons that she was insisted by financer of loan to do so due to poor track record of clearance of cheque and also she was ignorant of provisions of section 269T, since there were multiple other methods of repayment of loan envisaged in section 269T apart from payment through cheque and assessee had failed to come forth with any reasonable cause for such payment in cash, impugned penalty under section 271E imposed upon her was justified. 16. In view of aforesaid decision ground no. 1 of the appeal of the assessee stands dismissed. 17. Ground No. 2: At the outset, Ld. AR reiterated the facts and arguments from the same are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the assessee wherein Hon'ble Delhi HC has held as under: (i) CIT vs. R.P. SINGH & CO. PVT. LTD. (2012) 340 ITR 217 (Del.) 5. Ms. Rashmi Chopra, learned counsel for the Revenue, has referred to question (a) as substantial question of law to be arising which emerges for consideration in this appeal. The said question reads as under : "Whether the learned Income-tax Appellate Tribunal erred in law and on the merits in deleting the penalty under section 271D of the Income-tax Act, 1961, by holding that share application money received in cash was not deposit in contravention of section 269SS of the Income-tax Act, 1961 ?" 6. Mr. Kochar, learned counsel for the assessee, submitted that the said question does not arise in the case at hand inasmuch as both the Commissioner of Income-tax (Appeals) and the Tribunal have recorded a finding that once the Assessing Officer has treated it as an undisclosed income, it could not have proceeded on the foundation that it is a deposit. In our considered opinion, this submission canvassed by Mr. Kochar has substantial force and the question raised by the Revenue really does not arise in this case. Needle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....livion and could not have rearisen at any subsequent stage or in subsequent proceedings. The penalty imposed under section 271D read with section 269SS cannot, therefore, be sustained. C.W.P. No. 3868 of 1997, therefore, deserves to be allowed and the penalty deserves to be quashed. 20. In view of the ratio and analogy drawn from the aforesaid orders, though they are on pre amended section 269SS, but the interpretation accorded are still in force and applicable. Respectfully following the same, in the present case since the Assessing Officer had recorded a finding that the amount of Rs. 7,51,000/- was the unexplained money of the assessee u/s 69A of the Act, and thus, chargeable income of the assessee. Impliedly, the stand of Ld. AO while treating the amount received in cash as assessee's own money, establishes that it was neither any loan, a deposit nor specified sum. On one hand when the impugned cash receipts are characterized as assessee's own money the same, on the other hand cannot be a specified sum received from someone else in contravention to provisions of section 269SS, therefore, the very foundation and prerequisite to bring such amount within the realm of section 26....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r for the purpose of levying penalty u/s 271D of IT Act as the same was getting barred on 30.09.2022. The then JCIT, Range 1, Bilaspur, levied the penalty u/s 271D of IT Act on 20.09.2022 after affording due opportunity to the assessee and as per amended provision w.e.f. 01.06.2015 which is as under: "271D Penalty for failure to comply with the provisions of Section 269SS. (1) If a person takes or accepts any loan or deposit for specified sum] in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit (or specified sum] so taken or accepted. (2) Any penalty imposable under sub-section (1) shall be imposed by the [Joint Commissioner]" ***The Income Tax Act defines a specified sum as "money receivable, whether as advance or otherwise, in relation to transfer of an immovable property, whether or not the transfer takes place" The above amended provisions of Section 271D of IT Act w.e.f. 01.06.2015 is squarely covered in the case of assessee. 4. The assessee's appeal in respect of penalty u/s 271D for A.Y.2016-17 was dismissed by the learned CIT ....