TMI Blog2020 (5) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... sh advance against supply of goods and not loan/deposit or specified sum in relation to transfer of an immoveable property and the same cannot therefore be subject to the rigour of the provisions of section 269SS of the Act. The consequent penalty u/s 271D so levied is hereby directed to be deleted and the matter is decided in favour of the assessee. - ITA No. 387/JP/2019 - - - Dated:- 15-4-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Vinod Kumar Gupta (C.A.) And Shri Deepak Sharama (CA) For the Revenue : Shri K C Gupta (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of the ld. CIT(A), Kota dated 24.01.2019 for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of provisions of section 269SS of the Act as the assessee had accepted ₹ 1,00,000/- (20,0000*5) loan/deposit in cash on various dates. In response to the show-cause, the assessee submitted that the aforesaid cash receipts are neither loan nor deposit as the same was cash advance received from M/s Shri Om Sai Stone Industries for sale of motor and electric items and in the next year vide Bill no. 237, dated 24.05.2012, sale was made for 4,58,430/- and the remaining amount of ₹ 3,58,430/- was received through banking channels from M/s Om Sai Stone Industries. However, the submissions so filed were not found acceptable to the ld. Add.CIT and he imposed the penalty by holding as under:- Assessee s reply has been considered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 269SS. Thus on the facts involved, I am in agreement with the decision of Addl.CIT Range-1, Kota of imposing a penalty of ₹ 1,00,000/- in his case U/s 271D of the act. The same is being upheld. 5. Against the aforesaid findings, the assessee is in appeal before us. During the course of hearing, the ld. AR drawing our reference to the assessment order passed U/s 143(3) of the Act dated 28.02.2014 submitted that the Assessing Officer has not given any finding/observation that the assessee has contravened the provisions of Section 269SS of the Act. It was submitted that it is a clear case that the Assessing Officer has not recorded any satisfaction regarding penalty proceeding U/s 271D of the Act. In support, relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted before the ld CIT(A) that M/s Om Sai Stone Industries has obtained a loan of Rs. 3,58,430/- from Bank of Baroda, Ramganj Mandi Branch for making purchase of ₹ 4,58,430/- from the assessee and by considering advance payment of ₹ 1,00,000/- as margin money, the bank has financed ₹ 3,58,430/- to M/s Om Sai Stone Industries and which was subsequently paid to the assessee. It was further submitted that it is a settled legal proposition that cash advance received from purchaser does not fall under the ambit of Section 269SS and in support, reliance was placed on the following decisions:- CIT vs Kailash Chandra Deepak Kumar (2009) 32 DTR 336 (Allahabad HC) CIT vs Kharati Lal and Co. 270 ITR 445 (2004) (P H HC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in violation of provisions of section 269SS and Add. CIT, Range 1, Kota has subsequently issued the show-cause to the assessee and thereafter, has levied the penalty. The satisfaction for initiating the penalty proceedings therefore has to be of the authority which has the requisite jurisdiction to finally levy the penalty. There cannot be a situation where two different authorities record satisfaction and finally levy penalty. In the instant case, given that the ITO was ceased of the material and information that there was violation of provisions of section 269SS has passed on that material and information to the Add. CIT and who, on review of the same, has found the same to form the reasonable basis for initiating the penalty proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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