Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2018 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (11) TMI 1182 - HC - Income TaxPenalty u/s 271E - repayment of deposits in cash made by the assessee to her related persons - default u/s 269T - first burden to establish that there existed a loan or advance - Held that:- AO was having books of accounts of the assessee, including the cash book evincing the contentious payment. It was thus incumbent upon him to have recorded the finding that there existed a loan or deposit or advance by the said recipient viz. Adarsh Credit Cooperative Society. In absence of any loan or advance by the ACCS, the cash payment made to it does not fall foul to Section 269T of the Act of 1961. There is nothing on record to show that there existed a loan or advance by said ACCS, repayment whereof has been made in cash. Argument of Mr. Bissa that the burden was on assessee to show that the payment was not in violation to Section 269T is misconceived and ex-facie contrary to settled canon of burden of proof. It is a settled proposition that the burden to prove lies upon a person who asserts a fact. In the facts of the present case assessee put forth her explanation and took a stand that there existed no loan or advance from ACCS and the amount was paid towards her contribution in the society. As such the burden entirely lay upon AO first to establish that there existed a loan or advance and the contentious payment in repayment of such loan. That being the factual and legal position, we are of the considered opinion that the learned Commissioner (Appeals-2), Udaipur was perfectly justified in holding that there is no violation of the provisions of Section 269T of the Act of 1961 and consequently, levy of penalty under Section 271E of the Act of 1961 was uncalled for. - decided in favour of assessee.
|