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2021 (2) TMI 275 - ITAT PUNEPenalty u/s 271D - amount accepted by the assessee in cash - advance received against sale of land - violation of provision of Section 269SS - HELD THAT:- From the orders of the sub ordinate Authorities, it is crystal clear that though on one hand, they disbelieved the evidences placed on record specifically confirmation letter of C.B. Oswal, however, they themselves have not conducted any specific enquiry or examination with regard to the facts of the case. The entire addition has been made on the premises of guess work and suspicion It is the contention of the assessee that some land sale transactions were to be made with C.B. Oswal, for which, the advance amount was paid in cash to the assessee. That however, when this transaction did not materialize, the assessee refunded the said amount of ₹ 5,00,000/- in cheque back to C.B. Oswal. These facts were never enquired or examined or verified by the Department. Section 269SS refers to the loan or deposit received in cash and since it was an advance taken, the amount, therefore would not be within the rigours of Section 269SS of the Act and hence, there cannot be any penalty leviable u/s. 271D of the Act on the assessee. Assessee could not be penalized for the inaction of the Department in verifying the facts of the case wherein both the Assessing Officer and the CIT(Appeal) has made the addition based on mere surmises and guess work and therefore, penalty u/s. 271D of the Act cannot be sustained. Accordingly, we direct the Assessing Officer to delete the penalty from the hands of the assessee. - Decided in favour of assessee.
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