TMI Blog2011 (4) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... e been made by the assessee were made to persons in short intervals just to defeat the provision of Section 40A(3) Regarding penalty - Section 271-D has specific provision for imposing penalty which contains penal Section within it and a specific provision was made by Section 273- B which provides that no penalty shall be imposed if there was a reasonable cause for said failure. - Obviously, it has a penal consequence under Section 271-D. Here in this case, the language of section is clear, which only says that the benefit is available to the assessee under specific provision of law shall not be available and it cannot be considered as penalty merely because one has to incur some loss due to the imposition of tax that will not make that lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase assessee pays more than an amount of Rs. 10,000/- in a day then no disallowance will be there. The Tribunal held that the Assessing Officer and the Appellate Authority have committed error of law in interpreting Section 40A(3) of the Act in mechanical manner and they have denied the benefit to the assessee. Learned counsel for the appellant drew our attention to the fact that in fact the relevant provision of law i.e. Section 40A(3) of the Income Tax Act, 1961 as it was in forced in the year 1993-94 contained no such word like in a day and therefore, only on this ground alone the order passed by the Tribunal is liable to be setaside. It is also submitted that the reasons given by the Assessing Officer and the Appellate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order passed by the Tribunal be set aside and the matter can be remanded to the authority below so that assessee gets opportunity to satisfy the Assessing officer or the Appellate Authority to whom the matter is remanded that there was just and proper reason for cash payment to the certain person referred to in the impugned order. We have considered the submission of the learned counsel for the parties and the facts of the case. It is not in dispute that the Assessment order dated 31.3.1997 was passed after giving full opportunity of hearing to the assessee. In the course of hearing certain facts came into the notice of the Assessing Officer and thereafter by giving full details in the assessment order of the cash payment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer, therefore, the Assessing Officer also committed error because of the reason that disallowance of this expenditure is penal in nature as stated above cannot be without examining the reasons behind such cash payments. We are not convinced by the argument advanced by the assessee in as much as, it is not the duty of the Assessing Officer to draw attention of the assessee towards each and every component of statutory provision and to ask him whether his defence is available in any of the clause of statute. It is settled law that if a party wants to take defence, it is his choice and if he wants to do so, he should take defence at appropriate stage and it is not sufficient to take defence but it is his duty to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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