TMI Blog2015 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... in complete agreement with the view taken by the Tribunal - Following decision of COMMISSIONER OF INCOME-TAX AHMEDABAD IV Versus MAA KHODIYAR CONSTRUCTION [2014 (7) TMI 137 - GUJARAT HIGH COURT] - Decided against Revenue. - TAX APPEAL NO. 59 of 2007 - - - Dated:- 24-12-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE JUDGEMENT Per: K S Jhaveri: 1. By way of this appeal, the appellant-revenue has challenged the order dated 19.05.2006 passed by the Income Tax Appellate Tribunal [for short the Tribunal ], in ITA No.1115/Ahd/2000, whereby the appeal preferred by the assessee was allowed by the Tribunal. 2. The facts, in brief, are that the assessee had filed its return for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on record, therefore, he urged that this Court may allow this appeal and answer the question raised in this appeal in favour of the revenue. 5. We have heard learned advocate for the appellant-revenue and perused the material on record. Admittedly, the assessee had committed breach of Section 269SS of the Income Tax Act, however, in view of the decision dated 28.04.2014 rendered in Tax Appeal No.325 of 2014, the issue raised in this appeal is required to be answered in favour of the assessee and against the revenue. In Paragraph Nos. 8 to 14 of the above decision, this Court has observed as under:- 8. Section 269SS of the Act at this stage requires consideration alongwith Sections 271D and 273B of the Act. Any loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the genuineness of the transactions at no point of time had been doubted by the Revenue. They stayed in remote areas. Both the authorities, therefore, were of the opinion that reasonable cause had been sufficiently made out and when the very transactions were never doubted by the Revenue authorities, the breach is to be treated as a mere technical or venial breach. 12. We notice that the requirement of Section 273B is for the assessee to prove that there was a reasonable cause for its having failed to abide by the provisions of Section 269SS. As emerges from the record, not only the substantiating evidence like 7/12 Extracts were produced, but, also additionally, transactions were reflected in the accounts of assessee and the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. We find that both the authorities have rightly construed the provisions and applied the law to the facts and the surroundi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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