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2022 (8) TMI 33 - AT - Income TaxLevy of penalty u/s 271D V/S 271E - alleged violation of section 269SS having received Rs.15.50 lacs, in cash from his wife - allegation of default specified u/s. 269-T - wrong mention of a section (provision of law) - HELD THAT:- Penalty as levied is unsustainable in law in the absence of the jurisdictional fact, i.e., the acceptance of money in the sum of Rs. 15.50 lacs (or for that matter in any sum) in cash by the assessee from his wife Sangeeta Rawat on 25/08/2009 (or at any time during the relevant year), which could be said to be violative of s. 269SS, for which the law provides for levy of penalty u/s. 271D in absence of a reasonable cause being proved. As the ledger accounts of the assessee and his wife, forming part of the assessment order as annexures thereto, reveal, the assessee has in fact paid Rs. 15.50 lacs in cash to his wife and, further, is the only cash transaction between the two. We are conscious that a mere wrong mention of a section (provision of law), as long as the authority has the power in exercise of which the relevant judicial action has been taken, would not defeat the same. This, however, is not the case here. That, for instance, would be the case where the assessee had indeed received cash from or on behalf of his wife, attracting a penalty u/s. 271D, while the authority had, stating the facts constituting the default correctly, mentioned s. 271E instead. Order - Though the penalty u/s. 271D, though not time barred, is not maintainable in the absence of the necessary jurisdiction (see: Pr. CIT v. Maruti Suzuki Ltd. [2019 (7) TMI 1449 - SUPREME COURT]; Deep Chand Kothari [1987 (9) TMI 27 - RAJASTHAN HIGH COURT] The penalty levied is for the default specified u/s. 269-T, and though merited on the whole sum and, in any case, part thereof, is not sustainable in the absence of any penalty having been initiated or levied u/s. 271-E.
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