TMI Blog2002 (11) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee took a loan of ₹ 86,000 from her husband viz, Shri Mahesh Chandra Baroowa and repaid the same in cash on 27-2-1990. The Assessing Officer, opined that the above repayment of loan of ₹ 86,000 was in contravention of provisions of section 269T of the IT Act, 1961. In view of the above, the Assessing Officer imposed penalty under section 271E of the Act amounting to ₹ 86,000. The learned CIT(A) deleted the said penalty. Being aggrieved the Department is in appeal before us. 3. The learned Departmental Representative, Sri B.B. Dev supported the order of the Assessing Officer but the learned Authorised Representative of the assessee, Sri Sanjay Mody pointed out from the order of the assessment as well as from the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9T of the Act prior to 1-6-2002. In our considered opinion, that mere presence of some of the attributes of the loan in a deposit would not render the loan as a deposit. They are two different transactions in the commercial world. There are differences between deposit and loan. Deposit is obtained by the depositee, while loan is obtained by the borrower for himself. A person may deposit a hat in the club room, but it has to be returned on demand and cannot be used by the depositee. But in case of loan, it is the lending for the purpose of the borrower to be returned either on demand or after a specified time. Merely because of some common attributes a chimpanzee cannot be treated as a human being . Hence, when the legislature has specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment has been made is known to the Department and the genuineness of the loan transaction is not in doubt. Hence, in our considered opinion, it cannot be held that the breach of law, if any was deliberate. The default, if any, at most be said to be a technical default. It has been held by the Apex Court in the case of Hindustan Steels v. State of Orissa [1972] 83 ITR 26 that penalty cannot be levied merely because the authorities are empowered to levy and when there is technical or venial breach of the provisions of the Act, the authorities competent to impose penalty shall be justified in refusing to impose the penalty. 6. In view of the above facts and circumstances of the case, we uphold the order of the learned CIT(A) and reject th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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