TMI Blog2021 (7) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A) is set aside and Ld. AO is directed to delete the penalty - Decided in favour of assessee. - ITA No.104/Ind/2020 - - - Dated:- 27-7-2021 - Shri Manish Borad,Accountant Member And Ms. Madhumita Roy, Judicial Member For the Appellant : Shri S.N. Agrawal, CA For the Revenue : Shri Harshit Bari, Sr. DR ORDER PER MANISH BORAD, A.M: The above captioned appeal filed at the instance of the assessee for Assessment Year 2009-10 is directed against the orders of Ld. Commissioner of Income Tax(Appeals) (in short Ld. CIT], Ujjain dated 22.01.2020 which are arising out of the order u/s 143(3) r.w.s. 147 of the Act dated 20.01.2017 framed by JCIT, Ratlam. The assessee has raised following grounds of appeal: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan ₹ 5,50,000/- in cash which was in contravention to the provision of section 269T of the Act. Penalty proposal was received by ld. AO, Jhabua. Accordingly, notice issued for levy of penalty u/s 271E of the Act. Statement of the assessee was taken wherein he categorically denied to have taken any cash loan from Mr. Ramesh Chand Upadhya. During the penalty proceedings again it was submitted that no loan transaction have been taken or repaid by the assessee during A.Ys. 2007-08 2009- 10 with Mr. Ramesh Chand Upadhya. Ld. AO was not convinced. Though the information was received for repayment of cash loan at ₹ 5,50,000/- but Ld. AO levied the penalty u/s 271E of the Act at ₹ 4,00,000/- 3. Aggrieved assessee preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Ramesh Chandra Upadhya. The notice contains date wise repayment of loan. Therefore there was basis for levy of penalty u/s 271E. 7. In the light of aforesaid facts I am of the considered opinion that there was adequate basis for levy of penalty in the form of noting on the seized documents and therefore penalty levied u/s 271E at ₹ 4,00,000/- is confirmed. 4. Now the assessee is in appeal before this Tribunal. Ld. counsel for the assessee vehemently argued referring to the detailed written synopsis as well as paper book filed on 15.06.2012 running from 1 to 70 pages. Two fold contentions were made; firstly, that there is no evidence suggesting that assessee has taken any loan from Mr. Ramesh Chand Upadhya so there remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. 6. We have heard rival contentions and perused the records placed before us. Sole issue raised in this appeal by the assessee is challenging the finding of Ld. CIT(A) confirming the levy of penalty u/s 271E of the Act at ₹ 4,00,000/- for the alleged contravention of the provision of section 269T of the Act for repayment of loan in cash exceeding the permissible limit. 7. We note that pursuant to search in the case of another person namely Shri Ramesh Chand Upadhya certain documents were impounded. Assessment proceedings u/s 143(3) r.w.s. 147 of the Act was completed in the case of Ramesh Chand Upadhya. Information was passed on in the form of penalty proposal to ITO, Jhabua on 09.06.2016 for levying penalty u/s 271E of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the penalty has been levied u/s 271E of the Act. 11. Coordinate Bench Chandigarh in the case of Baldev Singh Vs. ACIT (Supra) has dealt with very same issue and has decided in favour of the assessee observing as follows: 15. Chapter-XXI of the Income Tax Act deals with penalty imposable/leviable. Penalty under various sections are imposable by the revenue authorities, where they are satisfied that particular default defined under the respective section/s has been committed by the assessee. The language of section is clear that the penalty can be imposed only if there is violation of one or more of the circumstances mentioned in the section. The levy of penalty for failure to perform statutory obligation prescribed under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) has held that for initiating the process of levying penalty u/s 271E of the Act recording of satisfaction in the assessment order by the Ld. AO is mandatory else no such penalty could be levied . 13. We, therefore, in the given facts and circumstances of the case and respectfully following the decisions referred hereinabove, are of the considered view that Ld. AO erred in levying penalty u/s 271E of the Act in the case of assessee as firstly revenue failed to prove whether assessee actually received any cash loan or repaid any cash loan from R.C. Upadhya and secondly Ld. AO was not having any jurisdiction to levy the penalty as no assessment proceedings were pending in the case of assessee and thus no satisfaction was recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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