TMI Blog2016 (6) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax v. Bombay Conductors & Electricals Ltd.[2008 (2) TMI 114 - GUJARAT HIGH COURT ] - Decided in favour of assessee - TAX APPEAL NO. 554 of 2007 - - - Dated:- 22-6-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR SN DIVATIA, ADVOCATE FOR THE OPPONENT : MR PRANAV G DESAI, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of this Appeal, the Appellant has challenged the order and judgment dated 16.11.2006 of the Income Tax Appellate Tribunal, Rajkot (SMC) Bench, Rajkot in ITA No.393/RJT/2006 for the Assessment Year : 2003 2004 whereby the Tribunal reversed the order and judgment of the CIT (Appeals). 2. While admitting the matter on 28.11.2007, the following substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from his son was neither a loan nor a deposit within the meaning of section 269SS of the Act and it was received in cash in view of urgent necessity. The Additional CIT imposed a penalty of ₹ 2,00,000/= on the ground that the appellant being a learned person and well aware of the provisions could not have ignored the law or could have taken the assistance of an income tax counsel. Being aggrieved and dissatisfied with the above order, an appeal was preferred before the CIT(A) at Rajkot which deleted the penalty holding that the transaction was between a father and son, to meet the urgent requirement of depositing the margin money in the bank account for buying a vehicle for personal use and thus, it was neither a loan nor deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no dispute in this case that it is not a case when any search and seizure had taken place and it is also not a case of explaining deposits or loan taken through cash in past. It is also evident from the record that the father appellant received the amount from his son for meeting with his urgent requirement of depositing the margin money in bank account for buying a vehicle for his personal use. Penalty under section 271D is leviable only if the amount received by an assessee was by way of loan or deposit. If the amount received does not amount to a loan or deposit, then no penalty would be leviable. It is perused from the appellant's reply in response to the show cause notice that it was claimed by him that the amount received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed under section 271D of the Act. Considering the facts and the submission made by the appellant, I am of the firm view that penalty under section 271D was leviable. In view of above, penalty order under section 271D levying penalty of ₹ 2,00,000/= is hereby cancelled. This ground of appeal is therefore allowed. Learned Advocate for the appellant has also relied on the following two decisions in support of his contentions :- Commissioner of Income Tax v. Bombay Conductors Electricals Ltd. reported in 2008 3 DTR (Guj) 200 and Commissioner of Income Tax v. Balaji Traders reported in 2008 303 ITR 312 (Mad) In the case of Commissioner of Income Tax v. Bombay Conductors Electricals Ltd. (supra), paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the assessee had indulged in any tax planning or any tax evasion. To the contrary, the Tribunal has recorded that by making the book entries the assessee has made the adjustment bona fide without having the knowledge that such book entries may render the assessee liable to penalty under s. 271D of the Act on account of violation of provisions of s. 269SS of the Act. That there was a reasonable cause and hence, no penalty was leviable. 8. In light of the findings of the facts recorded by the Tribunal after appreciating evidence on record and applying the ratio of the apex Court decisions it is not possible to find any legal infirmity in the impugned order of the Tribunal. Not only there is a reasonable cause , as found by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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