TMI Blog2018 (6) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... t he is known to the assessee; a transaction of lending or advancing could materialize only between parties known to each other; rather, having mutual trust – the assessee working through its partners The claim of the amount loan/deposit being a trade advance, is, as found by the Revenue, wholly unproved (if not disproved). On the contrary, the conduct and the surrounding facts and circumstances point to the contrary, i.e., to it being not so. The same is the assessee’s only explanation for the contravention of sections 269SS and 269T. No reasonable cause for the same has been shown, much less proved, for us to consider the application of section 273B in the facts and circumstances of the case. No reason for interference and, accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated during the assessment proceedings, i.e., that the amount received from and returned back to Shri CL Vohra was a booking advance, i.e., for booking of a film, received on behalf of the movie theatres. Sections 269SS and 269T did not apply to a trade advance. Shri CL Vohra was summoned u/s. 131 by the AO, but he did not attend. The assessee was accordingly provided an opportunity to evidence its claim (for 21.01.2016), which remained unresponded (till the date of the passing of the penalty orders). The claim of receipt and repayment of a trade advance being wholly unproved, with, on the contrary, Shri Vohra admittedly being an employee of the Batra Group working as a manager for Kapil Batra Film Production House Pvt. Ltd., the AO lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO had not called upon the assessee to produce Shri Vohra, but had acted on his own to enforce his attendance. That being the case, no adverse inference could be drawn from the said non-attendance. Further, once the assessee had furnished an affidavit from Shri Vohra, deposing of having made a booking advance, which was received back as the film for which it was given did not run, there was no scope for drawing any adverse inference, as done by the Revenue. On being queried by the Bench of there being any material on record to exhibit Mr. Vohra, the lender/depositor, to be a booking agent, or working as one, he could not point out to any. 4. We have heard the parties, and perused the material on record. Our first observation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also its purpose, as well as enable him to settle the account with the payee as well as the payer/s, the movie theatre/s (owner/s). Further, even if assumed that he was working as a booking agent and, therefore, carried an implied authority to book the film for and on behalf of the movie theatres, the parties would surely follow some protocol or adopt some business practice, viz. sign an agreement or even a form, listing the principal terms and conditions; the film for which the advance is made; the total amount to be received, and by when, etc. That is, the transaction could not be, as it is, sans any corroborative material, exhibiting it being a trade advance. Why, rather, we wonder, was the sum not given and/or repaid through the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) could be shown. It is in the background and context of these and such-like questions, which could be answered by Shri Vohra, that the AO summoned him in the penalty proceedings, as also noted by the ld. CIT(A). His affidavit, without meeting the cross examination to which it could be put to, is thus of little value. Why, as aforenoted, it has not been shown in any manner that he was working as a booking agent. Further, if true, there would be plethora of material to evidence or establish this. He would, for example, if the trade is regulated, have a licence for the same. In any case, the trade association would recognize him as a booking agent. He would be maintaining books of account of his said agency business. The transactions entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore-going, without merit. In fact, prior to the penalty proceedings, opportunity for producing Shri Vohra was provided twice during the assessment proceedings. Mr. Vohra, whose confirmation and affidavit the assessee relies upon, it is to be appreciated, is the assessee s witness, and not of the Revenue. Then, again, even after his non-attendance, the assessee was again extended an opportunity to substantiate its case, for 20.01.2016. Further, he was not produced even in the appellate proceedings whereat the said affidavit was filed, and which therefore witnessed a remand report being called for by the ld. CIT(A), which finds reproduction in his order, as well as, the assessee s reply. Shri Vohra being not shown to be working as a booking a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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