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2022 (8) TMI 938 - ITAT AHMEDABADPenalty u/s 271D - period of limitation - as argued penalty orders barred by limitation - contravention to the provisions of section 269SS of the Act in view of accepting cash loan more than prescribed limit - HELD THAT:- As only the Joint Commissioner can initiate proceedings for levy of penalty. Such initiation of proceedings could not have been done by the Assessing Officer. The statement in the assessment order that the proceedings under sections 271D and 271E are initiated is inconsequential. On the other hand, if the assessment order is taken as the initiation of penalty proceedings, such initiation is by an authority who is incompetent and the proceedings thereafter would be proceedings without jurisdiction. If that be so, the initiation of the penalty proceedings is only with the issuance of the notice issued by the Joint Commissioner to the assessee to which he has filed his reply”. Therefore, in our considered view, the 271D order is not barred by limitation and as validly pointed out by the Ld. CIT(A) in his order, the Joint Commissioner, who is the prescribed authority to initiate 271D proceedings, has passed order within the period of limitation prescribed i.e. within 6 months from the end of the month from the date of initiation of 271D proceedings on 15.07.2015. In view of the above discussion, we are of the considered view that Ld. CIT(A) has not erred in law and on facts in holding that the order u/s 271D of the Act is not barred by limitation. Amount received by the assessee from his wife and his father - As in view of the decision of the jurisdictional Gujarat High Court in the case of Dr. Rajaram L. Akhani [2016 (6) TMI 1051 - GUJARAT HIGH COURT] and other case laws cited above, as applicable to the facts of the case, in our view so far as receipt of Rs.22,50,000/- by the assessee from his wife and father is concerned, in our view the provisions of section 269SS do not stand attracted. There is nothing on record to show that the amount was taken as a loan or deposit by the assessee from his father/wife and also there is nothing on record to establish that the assessee was under an obligation to repay that the same (with our without interest) and therefore in view of the judicial precedents cited above, in our view provisions of section 269SS cannot be invoked so far as the amount of Rs.22,50,000/- is concerned. Receipts from Mr. Mahispatsinh assessee has failed to discharge its burden proving that there was a reasonable cause for accepting the sum of Rs.15 lakhs in cash from Mr. Mahispatsinh. The Ld. CIT(A) in in his order has specifically noted that “further, it is also seen that during the assessment proceedings the assessee, well knowing that he had also taken cash loans of Rs.15 lakhs did not deem it necessary to make submissions regarding the same before the AO in spite of the fact that the issue of applicability of section 269SS was being discussed in his case”. In light of the above discussion, we are of the considered view that the Ld. CIT(A) has not erred in facts or in law in confirming penalty in respect of the sum of Rs.15 lakh received in cash from Mr. Mahispatsinh in violation of the provisions of section 269SS . Assessee appeal is partly allowed.
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