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TMI Blog2019 (1) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 passed by the Commissioner Income Tax (Appeals-2), Udaipur. The appellants have sought setting aside of the appellate orders, consequent to favorable adjudication of the following questions of law, which according to them are substantial questions of law:- "1. "Whether the learned ITAT is justified in deleting the penalty u/s 271D without considering that the amount of Rs. 19,35,000/- received by the assessee in cash and which is self-evident from the cash book submitted by the assessee himself are squarely covered by the provisions of Section 269SS?" 2. "Whether the learned ITAT is justified in treating the receipts as reflected from the assessee's cash book as not covered underr the definition of "loans and deposits" under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the disclosure of peak amount for which the provisions of Section 269SS of the Act of 1961 are not attracted. The Joint Commissioner, Income Tax was not satisfied with the reply of the assessee and levied a penalty of Rs. 19,35,000/- under Section 271D of the Act of 1961 and for the alleged breach of Section 269SS qua the sum of Rs. 19,35,000/- deposited in cash. Feeling aggrieved with the said imposition of penalty, the respondent preferred 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 has recorded a finding that the amount of Rs. 19,35,000/- represents the undisclosed income of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit c. Acceptance is made otherwise than way of specified modes d. acceptance is made from any person 3.4.3 It is well settled judicial principle that burden of proof in relation to penalty proceedings is on the revenue, however, in the instant case, the JCIT has levied the penalty only on the basis of rejection of the explanation of the Appellant and there is no concrete finding as to whether (I) there is transaction of loan or deposit, (ii), there is acceptance of such loan or deposit and (iii) there is acceptance made otherwise than by way of specified mode. In the instant case, it is being agitated by Appellant that transactions amounting to Rs. 19,35,000/-, is related to undisclosed income of peak amount disclosed in return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 269SS of the Act. The Tribunal also held that the burden of proof in relation to the penalty proceedings was on the Revenue and that the Assessing Officer has failed to establish that the amount of Rs. 19,35,000/- is the amount of peak cash deposited, reflected in return of income, which by no stretch of imagination be termed as acceptance of deposit. Mr. Bissa, learned counsel for the appellant contended that the learned Members of the Tribunal have erred in holding that the burden of proof in cases of penalty proceedings is on the Revenue. He submitted that the onus lay upon the assessee to establish that the cash brought in the books was not in violation of the provisions of Section 269SS of the Act of 1961. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ak cash deposit. It was upon the Assessing Officer to have recorded the finding that the assessee had received a loan or deposit or advance from a third party. In absence of such fact, which is a precursor for establishing of breach of Section 269SS of the Act of 1961, the penalty cannot be levied. That being the fact situation, 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 269SS of the Act of 1961 and thus, levy of penalty under Section 271D of the Act of 1961 was void. In view of the aforesaid, while concurring with the views of the appellate authority and the Income Tax Appellate Tribunal, we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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