TMI Blog2018 (11) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... e property no. 3498, Gali Sangrasha, Bara Hindu Rao, Delhi – 6. Due to some reasons, the deal was not materialized and the purchaser parties agreed to take another property which is in the name of assessee’s wife. The said amount was transferred to his wife’s account i.e., Mrs. Shahina Qureshi. Further note that there is no denial on the part of the AO that the amount of ₹ 22 lacs was received by the assessee from his wife, Mrs. Shahina Qureshi. However, while levying the penalty u/s. 271D AO did not appreciate the fact that the provisions of section 269SS are not applicable on the loan transaction between husband and wife. Thus, the question of levying of penalty u/s. 271D does not arise on the impugned transaction, hence, delete the penalty in dispute and allow the appeal of the assessee. - Decided in favour of assessee. - ITA Nos. 3797 & 3798/DEL/2018 - - - Dated:- 27-11-2018 - Shri H.S. Sidhu, Judicial Member For the Assessee : Ms. Sonia Rani, CA, For the Revenue : Sh. B.S. Anant, Sr. DR. ORDER The Assessee has filed these two Appeals against the respective Orders of the Ld. CIT(A)-20, New Delhi pertaining to assessment year 2013-14. 2. The gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of trading of metal and sale and purchase of live stock. The AO observed that assessee has shown loan of ₹ 88,00,000/- from his wife, Mrs. Shahina Quereshi, during the year under consideration. Out of ₹ 88,00,000/-, the assessee explained that ₹ 63,000/- was received from Mrs. Shahina Qureshi directly and ₹ 22,00,000/- received by the assessee as advance against sale of his proty and ₹ 3,00,000/- was wrongly considered in the name of his wife rather the same was transferred by assessee s own account and hence, should be considered as capital not unsecured loan. The AO did not accept the explanation filed by the assessee in respect of ₹ 3 lacs and made the alleged addition of ₹ 3 lacs by stating that no satisfactory explanation was filed by the assessee. Before the Ld. CIT(A), the assessee appealed and filed bank statement in his account and bank account of Mrs. Shahina Qureshi, to show that the amount of ₹ 3 lacs was transferred from assessee s own account not from his wife account and plea that the addition of ₹ 3 lacs should be deleted. Ld. CIT(A) observed from the bank statement of Mrs. Shahina Qureshi s acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the appeal of the assessee. 5. On the contrary, Ld. DR relied upon the orders of the authorities below and stated that Ld. CIT(A) has rightly enhanced the addition which does not need any interference on our part. 6. I have heard both the parties and perused the records. I note that the amount of ₹ 58 lacs was transferred by the assessee through banking channel only. The account ledger of the Axis Bank of M/s Paramount Trading Co. was also filed by the assessee before the Ld. CIT(A) to explain that the amount was transferred out of the explained sources of the assessee. However, there is no incidence of pre cash deposit before transfer, neither any such incidence was discussed by the Ld. CIT(A). We also note that the provisions of section 68 are applicable in case where the credit was received by the assessee. However, in the present case, the position is entirely different, as the amount of ₹ 58 lacs was not received by the assessee rather the amount was paid by the assessee to his wife out of his explained sources. Hence, the addition in dispute made in the hands of the assessee should not be taxed and therefore, the same is hereby deleted and accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. On the contrary, Ld. DR relied upon the order of the Authorities below. 11. I have heard both the parties and perused the records, especially the impugned order as well as the ITAT, G Bench decision dated 20.6.2018 in the case of Sunil Kumar Sood vs. JCIT (Supra). I note that assessee received advance money of ₹ 22 lacs from the four parties for the property no. 3498, Gali Sangrasha, Bara Hindu Rao, Delhi 6. Due to some reasons, the deal was not materialized and the purchaser parties agreed to take another property which is in the name of assessee s wife. The said amount was transferred to his wife s account i.e., Mrs. Shahina Qureshi. I further note that there is no denial on the part of the AO that the amount of ₹ 22 lacs was received by the assessee from his wife, Mrs. Shahina Qureshi. However, while levying the penalty u/s. 271D of the Act, the AO did not appreciate the fact that the provisions of section 269SS of the Act are not applicable on the loan transaction between husband and wife. Thus, the question of levying of penalty u/s. 271D of the Act does not arise on the impugned transaction, hence, I delete the penalty in dispute and allow the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney and the benefit normally being the earning of interest from the party who customarily accepts deposit. In the case of loan it is the borrower at whose instance and for whose needs the money is advanced. The borrowing is primarily for the benefit of a borrower although the person who lends the money may also stand to gain thereby earning interest on the money lent. In the instant case, this condition was not applicable because there was no relationship of the depositor or a creditor as no interest ITA N0.2256/Kol/2014-Tuhinara Begum A.Y.2010-11 3 was involved. This was neither a loan nor a deposit. At the same time. the words 'any other person' are obviously a reference to the depositor as per the intention of the Legislature. The communication/ transaction between the husband and wife are protected from the legislation as long as they are not for commercial use. Otherwise, there would be a powerful tendency to disturb the peace of families. to promote domestic broils, and to weaken or to destroy the feeling of mutual confidence which is the most enduring solace of married life. In the instant case, the wife gave money to husband for construction of a house which w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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