TMI Blog2018 (6) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ANANT HIMATSINGKA VERSUS ADDL. COMMISSIONER OF INCOME-TAX, KOLKATA [2011 (11) TMI 796 - ITAT KOLKATA] - hence we find that when the genuineness of the transaction has not been doubted by the lower authorities as also the importance of urgency of raising cash loan, the penalty u/s 271D & 271E ought not to have been levied - Penalty levied u/s.271D & 271E deleted - Decided in favor of assessee. - I.T.A. No. 3334-3335/Ahd/2016 - - - Dated:- 11-6-2018 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member Appellant by : Shri D.K. Parikh, AR Respondent by : Shri Rajesh Meena, Sr.DR ORDER Per Ms. Madhumita Roy, JM The captioned appeals filed by the Assessee are directed against the orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following submission made by the assessee in the proceeding u/s.271D of the Income Tax Act, 1961 (hereinafter referred to as the Act ). Also the assessee has earned almost ₹ 1 crore out of this transaction of land deal for which such advance was given and the said receipt of profit was brought to the tax by the assessee in A.Y. 2008-09, which can be verified from the record of assessment of the said year. As assessee was having a reasonable cause for taking such amount which was not under an obligation to repay, the provision of section 269SS is not attracted and also having found the surplus cash by assessee subsequent in the month of August, 2007 had returned such amount to his father. So similarly provision of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was in urgent need of money to make payment of banakhat amount for purchase of land which resulted in huge profit in the subsequent period. He relied on some tribunals decisions. 6. The ratio of the decisions relied by the appellant have been gone through and it was noticed that in the case of K.K. Enterprise (2014) 41 Taxman.com 235 (Mum.Trib) the assessee firm received a sum of ₹ 4.35 lakhs in cash from its sister concern and later on a sum of ₹ 1 lakh was repaid in cash. The tribunal held that this was a transaction between two business concerns constituted by the family members and both the firms were having a common partner, therefore, transfer of cash by one firm to another would operate as a reasonable cause. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the said amount of ₹ 1,00,000/- it was borrowed from the father of the assessee and repaid subsequently. Once finding as to the genuineness of the transactions was arrived at by the authorities below which was not proper for them to impose penalty. Neither there was any finding that the assessee intended to evade tax. The facts of the case in ITA Nos.331 332/Kol/2010 is similar to the case in hand. While allowing the assessee s appeals, the following was observed by the said Bench. Going through the facts of case before us, we are of the view that the transaction between son in law and father in law for giving a support and help as contended by Ld. Counsel and not denied by revenue, in law was not a loan or deposit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasonable cause needs to be shown. What is pleaded by the respondent was that all these persons were agriculturists and that 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law or was guilty of conduct contumacious or dishonest, or act in conscious disregard to its obligation. 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. 16. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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