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TMI Blog2018 (8) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty levied Penalty amount Nature 196/B/2014 2005-06 271D (violation of 269SS) 6,50,000 Accepting cash loan from one Shri Ashok Bhimappa Naik 197/B/2014 2006-07 271E (violation of 269T) 3,50,000 Repaying loans in cash to Shri Ashok Bhimappa Naik 198/B/2014 2007-08 271E (violation of 269T) 6,75,000 199/B/2014 2007-08 271D (violation of 269SS) 6,45,000 Accepting cash loan from Shri Ashok Bhimappa Naik 200/B/2014 2008-09 271D (violation of 269SS) 5,00,000 201/B/2014 2009-10 271D (violation of 269SS) 6,40,000 202/B/2014 2010-11 271D (violation of 269SS) 11,83,000 3. The Assessee is a Society running education institution for B.Ed. & D.Ed. courses. There was a Survey u/s.133A of the Act carried out at the office of the Assessee by the revenue on 6.10.2010. The case of the revenue was that the documents impounded at the time of Survey showed that there were acceptance and repayment of loans by the Assessee in cash beyond the prescribed limit u/s.269SS and 269T of the Act and in violation of those provisions which calls for imposition of penalty u/s.271D and 271E of the Act, respectively. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in its order dated 22.1.2015 was pleased to uphold the order of the first appellate authority, holding as follows:- "12. A reading of the remand report clearly shows that the AO had verified the revised financial statements furnished by the assessee before the CIT(A). In the remand proceedings it is mentioned that the revised statements were tallying with the books of account and other impounded material. It is also mentioned that date of receipt and payment of cash loan, if any, was not ascertainable. For levy of penalty u/s. 271D as well as 271E, it is required for the AO to establish that assessee had accepted or repaid a loan or deposit in contravention of section 269SS/269T, as the case may be. This, in turn, requires to be shown that assessee had accepted loan or deposit in cash which is Rs. 20,000 or above, or repaid similar amount in cash. Without the details regarding receipts & payment, in our opinion, AO could not have proceeded simply based on the figures given in the original financial statements filed by the assessee. Not even a single instance has been shown by the AO from the records that any amount was accepted by the assessee as loan or repaid by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mappa B Chandargi, Accountant of the assessee, met the undersigned on 23.01.2015 and explained that the books/documents impounded during the course of survey were the primary basic accounts maintained by the Principal. These were then written fair by the Accountant Sri.B.B. Chandargi and then audited by the Chartered Accountant Sri.D.V. Daga. The final books of account based on these carried the signatures of the accountant and the auditor. These were not found during the survey. From this it is clear that the assessee's claim that proper books of account were not being maintained is incorrect. The Audited statement of accounts along with the audit report by a Chartered Accountant are filed with the returns are as back as 2005, 2006, 2007, 2008, 2009 and 2010. The final books of account were prepared by Sri. Chandragi, Accountant and audited by Sri. D.V. Daga, CA every year. These books were signed by the Principal and the Chartered Accountant who had audited the accounts. The final books of accounts are being maintained every year from A.Y. 2005-06 onwards. The claim of the assessee about not maintaining regular books of account has been made just to justify its need for filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertainable as to who and when exactly replacement of books had taken place. In fact in page-3 of the police complaint dated 10.3.2015 it has been specifically stated so. Therefore, the revenue did not bring to the notice of the Tribunal any of the facts with regard to alleged tampering despite its knowledge that there were allegations of tampering. 8. The learned counsel for the revenue reiterated before us the stand taken by the revenue in the application for rectification and reiterated the prayer made by the revenue in this application. The prayer of the revenue in this regard has been extracted in the earlier part of this order. In short, the prayer is that the order of the Tribunal should be recalled and modified by setting aside the order of the CIT(A) cancelling penalties imposed on the Assessee and the issue of levying penalty should be remanded to the officer imposing penalty for consideration afresh in the light of the allegation of tampering with the impounded documents. 9. The learned counsel for the Assessee on the other hand made the following submissions:- (i) He pointed out that that tax effect in all these appeals is less than Rs. 20 lacs and the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out that the CBI/ACB/Bangalore in the report of investigation conducted in RC 16(A)/2016-CBI/ACB/Bangalore has filed its final report dated 25.1.2018 in the District Court, Dharwad, in CR No.567/18 wherein they have recommended closure of the case on the ground that investigation could not bring out credible evidence to identify the persons responsible for tampering of records and other facts such as when, where, who and how it was done. A copy of the report was filed before the Court. 10. We have given a careful consideration to the rival submissions. The power of the tribunal to recall or rectify its order u/s.254(2) of the Act can be invoked only when it is shown that there has been error apparent on the face of the order of the Tribunal. Admittedly, when the appeal was heard by the Tribunal no allegation of tampering of records was ever put forth on behalf of the revenue. When the appeal was heard by the Tribunal on 4.12.2014, there was already correspondence regarding tampering of records but still nothing was brought to the notice of the Tribunal when the appeal was heard. As rightly pointed out by the learned counsel for the Assessee, the MA does not disclose as to when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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