TMI Blog2018 (11) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of 1961. There is nothing on record to show that there existed a loan or advance by said ACCS, repayment whereof has been made in cash. Argument of Mr. Bissa that the burden was on assessee to show that the payment was not in violation to Section 269T is misconceived and ex-facie contrary to settled canon of burden of proof. It is a settled proposition that the burden to prove lies upon a person who asserts a fact. In the facts of the present case assessee put forth her explanation and took a stand that there existed no loan or advance from ACCS and the amount was paid towards her contribution in the society. As such the burden entirely lay upon AO first to establish that there existed a loan or advance and the contentious payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 269T? 2. Whether the learned ITAT is justified in treating the repayments of deposits in cash to a related person as reflected from the assessee s cash book as not covered under the definition of loans and deposits under the provisions of Sec. 269T? 3. Whether the learned ITAT is justified in treating the regular account of the assessee with the related society as exempt within the meaning of both the proviso u/s section 269T? The facts relevant for the purpose of deciding the present appeal so also to ascertain as to whether the questions of law as proposed by the appellant do arise; are set out briefly hereunder. A search and seizure was carried out in the assessee s group, comprising of Adarsh Credit Coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred an appeal under Section 250 of the Act of 1961, which came to be allowed by the commissioner of Income Tax (Appeals-2), Udaipur vide his order dated 16.06.2017. The learned appellate authority observed that it is true that cash deposits have been made in the accounts of ACCS, but there was nothing on record to conclude that the appellant had taken any loan or deposit from the said ACCS and the amount so paid in cash was a repayment of such loan or advance. Having gone through the record and after recording the above finding, the appellate authority held that the explanation furnished by the assessee that the amount deposited in ACCS s account was correct and acceptable and thus deleted the penalty as the payment/ deposit so made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) there is transaction of loan or deposit, (ii), there is repayment of such loan or deposit and (iii) there is repayment made otherwise than by way of specified mode. In the instant case, it has not been established whether deposit was taken, when was deposit taken and of how much amount of deposit was taken. This burden has not been discharged, therefore, bare allegation upon the Appellant without establishing aforesaid requirements, do not justify levy of penalty u/s 271E of the Act. 3.4.3. The Appellant in its submissions has explained that these transactions are transaction of amount being deposited in the account of the Adarsh Society, which seems reasonable explanation as evident from the bare perusal of the cash book, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to establish that the payment in cash, which has been made in the account of ACCS was not in violation of the provisions of Section 269T of the Act of 1961. We have considered the arguments advanced by Mr. Bissa and perused the material available on record including the provisions of Section 269T of the Act of 1961. If the facts of the present case are considered carefully, it transpires that the respondent assessee had made payment of ₹ 54,93,095/- in cash in the account of ACCS Limited. Pursuant to the notice for levy of penalty, the assessee furnished her explanation and asserted that the said payment has been made towards her contribution in the Society, by pointing out that the assessee was a member of the Society. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve lies upon a person who asserts a fact. In the facts of the present case assessee put forth her explanation and took a stand that there existed no loan or advance from ACCS and the amount was paid towards her contribution in the society. As such the burden entirely lay upon the assessing officer first to establish that there existed a loan or advance and the contentious payment in repayment of such loan. That being the factual and legal position, we are of the considered opinion that the learned Commissioner (Appeals-2), Udaipur was perfectly justified in holding that there is no violation of the provisions of Section 269T of the Act of 1961 and consequently, levy of penalty under Section 271E of the Act of 1961 was uncalled for. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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