TMI Blog2019 (1) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... h book as peak 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. 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. - Decided in favour of assessee. - D.B. Income Tax Appeal No. 149/2018 - - - Dated:- 30-10-2018 - Mr. Justice Sangeet Lodha And Mr. Justice Dinesh Mehta For the Appellant(s) : Mr. K.K. Bissa JUDGMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant do arise; are set out briefly hereunder. A search and seizure was carried out in the assessee s group, comprising of Adarsh Credit Cooperative Society Limited and Adarsh Cooperative Bank Limited, its Director and other related persons. During the course of assessment proceedings, the Assessing Officer summoned the cash book and accounts of the assessee and found that a sum of ₹ 19,35,000/- has been accepted by the assessee in cash and proposed to levy penalty under Section 271D of the Act of 1961 for the alleged violation of provisions of Section 269SS of the Act of 1961. The Joint Commissioner, Income Tax issued a show cause notice during the penalty proceedings. Pursuant to the notice issued by the Joint Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It will not be out of place to reproduce the relevant excerpt from the order of the appellate authority, which reads thus:- 3.4.1 From the perusal of the cash book and submissions of the Appellant and order of the JCIT, it is seen that transactions under consideration are related to transaction of ₹ 19,35,000/- with description disclosure of peak amount as mentioned in the cash book and with respective account head debited/credited. From this cash book, it was concluded by the JCIT that it is the transaction of receipt of deposits in in contravention of provisions of section 269SS. However, after perusal of the records, it is seen that the said conclusions of the JCIT is without establishing the relationship of depositorlende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 3.4.4 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 failed to establish with a finding as to whether (i) there is transaction of loan or deposit, (ii), there is acceptance of such loan or deposit and (iii) acceptance is 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 what was the amount of deposit 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 271D of the Act. Feeling aggrieved with the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 19,35,000/- in cash. We have considered the arguments advanced by Mr. Bissa and perused the material available on record including the provisions of Section 269SS of the Act of 1961. A perusal of record leaves no room for doubt that the respondent assessee had surrendered a sum of ₹ 19,35,000/- as his undisclosed income for the assessment year 2010-11 and has infused the said amount in his channel of accounts. As a matter of fact, it was not acceptance of any amount in cash as loan or deposit. A perusal of Section 269 SS of the Act of 1961 reveals that it prohibits receipt of loan or deposit made by any person, otherwise than by way of an account payee cheque or account payee draft. A bare look at the aforesaid pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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