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2017 (9) TMI 374 - AT - Income TaxLevy of penalty u/s 271D and 271E - violation of provisions of section 269SS and 269T - Held that:- The initial onus lies on the assessee and not on the Revenue. The assessee has merely contended that these are advances to staff and its contractors for meeting the site expenses and repayment thereof, however it has failed to demonstrate the same with verifiable evidence. There is nothing on record to support the contention of the assessee that 13 persons in respect of whom provisions of section 269SS and 269T have been invoked by the Add CIT are assessee’s employees and/contractors and transactions with them are in the regular course of business for meeting site expenses. CIT(A) has merely endorsed the contentions of the assessee without any credible evidence on record to support the said contentions. Unless and until, the assessee discharge the initial onus placed on him, the onus cannot shift to the Revenue. CIT(A) has further held that the Addl. CIT during the proceeding u/s 269SS or 269T has not cross examined the above version of the assessee by issuing summons u/s 131 or commission u/s 133(6) to any of the persons whose names are mentioned in the annexure and the fact that all these cash payments being only for loan and advances is not established beyond doubt and no presumption based financial liabilities can be levied upon the assessee. CIT(A) has further highlighted certain contradictions in the findings of the Add CIT. As we have held above, the initial onus is on the assessee and once the assessee discharges its initial onus, the onus thereafter shift on the Revenue. In the instant case, it is also a fact that Section 271D and Section 271E being the penal provisions which have been invoked, it is to be seen that the conditions specified in the provisions are strictly fulfilled before the levy of penalty which is equal to the value of the transactions. It has to be established that there are transactions in the nature of loans and advances and their repayment, both in cash, which have clearly violated the provisions of section 269SS and 269T of the Act without any reasonable cause. On perusal of records, we find that there is not enough material on record for us to take a view in the matter. In the interest of justice and fair play, we are setting aside the matter to the file of the ld CIT(A) to examine the same afresh taking into consideration the above discussions. Appeals filed by the Revenue are allowed for statistical purposes
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