TMI Blog2018 (10) TMI 1927X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2011-12 relevant to the assessment year 2012-13. The decision in the case of Triumph International Finance (I) Ltd.(supra) was rendered by the Hon ble Bombay High Court on 12.06.2012. Appeal dismissed. - ITA No. 131, 132/MUM/2017 - - - Dated:- 23-10-2018 - SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) Appellant by : Mr. Sanjay Singh, DR Respondent by : Mr. Vijay Mehta, AR ORDER PER N.K. PRADHAN, AM The captioned appeals filed by the revenue are directed against the order of the Commissioner of Income Tax (Appeals)-49, Mumbai [in short CIT(A) ] and arise out of penalty u/s 271D/271E of the Income Tax Act 1961 (the Act ). As common issues are involved, we are proceeding to dispose them off through a consolidated order for the sake of convenience. 2. The grounds of appeal in respect of penalty u/s 271D are as under: 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty of ₹ 49,03,36,357/- levied u/s 271D of the Income Tax Act, 1961 on the ground that genuineness of the transaction journal entries is not in doubt. 2. On the facts and in the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for the reason that Lodha Developers Ltd. is the parent holding company which has further subsidiaries and step down subsidiaries. Relying on the judgment of the Hon ble Bombay High Court in Triumph International Finance (India) Ltd. and the order of the ITAT F Bench Mumbai in M/s V.N. Parekh Securities v. ACIT (ITA No. 6082 and 6083/Mum/2009 dated 16.08.2013), the AO levied a penalty of ₹ 49,03,36,357/- u/s 271D of the Act. 5. Similarly, the AO noticed that the assessee had repaid loans/deposits to various sister concerns through journal entries i.e. otherwise then account payee cheque/draft, thereby stating that the assessee had violated the provisions of section 269T of the Act. The total of such entries are as under: Sl. No. Name of the Sister Concerns Debits (Rs.) 1. Aastvinayak Estate Co. Pvt. Ltd. 20,66,50,000 2. Suryoday Buildwell Farms Pvt. Ltd. 6,65,50,000 Total 27,32,00,000 With similar reasons as recorded while imposing penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence it cannot be ruled out that the entities through whom such payment/acceptances are made are not part of a chain of entities involved in transaction for the purpose of tax evasion. Thus the Ld. DR supports the order passed by the AO. 8. On the other hand, the Ld. counsel of the assessee relies on the judgment dated 06.02.2018 of the Hon ble Bombay High Court in CIT v. Ajitnath Hi-Tech Builders Pvt. Ltd. (ITA No. 171 of 2015) and the orders of the Tribunal following the above judgment. 9. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below. In the case of Ajitnath Hi-Tech Builders Pvt. Ltd. (supra) to the Hon ble Bombay High Court has held that 3. Regarding Question No.(i) :- (a) The common impugned order of the Tribunal arises from the orders passed by the Addl. Commissioner of Income Tax imposing penalty upon the respondents under Section 271D of the Act for breach of Section 269SS of the Act. This penalty was imposed inasmuch as during the previous year relevant to the subject assessment year, the respondents had accepted loans / deposits by way of passing journal entries in its books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t satisfy the test of reasonable cause; and (iii) the non-satisfaction of showing reasonable cause as required under Section 273B of the Act gives rise to a question of law as it is a legal inference to be drawn from primary facts as held by the Apex Court in Premier Breweries Ltd. Vs. Commissioner of Income Tax 372 ITR 180. Thus, it is submitted this question requires admission as it gives rise to a substantial question of law; (d) We find that the impugned order of the Tribunal has on application of the test laid down for establishment of reasonable cause, for breach of Section 269SS of the Act by this Court in Triumph International Finance (supra) found that there is a reasonable cause in the present facts to have made journal entries reflecting deposits. The Tribunal while relying upon the order of this Court in Triumph International Finance (supra) has held that in the present facts, neither the genuineness of receipt of loans / deposits by way of an adjustment through journal entries carried out in the ordinary course of business has been doubted in the regular assessment proceedings. It held in the present facts the transaction by way of journal entries was un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs. Commissioner of Income Tax, 31 ITR 28 had laid down the tests to determine a question of law and / or fact. In the above context, the Court observed that when the finding is one of fact, the fact that it itself is an inference from other basic facts, will not alter its character as one of fact. Therefore, the issue of there being reasonable cause or not, is a question of fact and unless it is shown to be perverse, we would normally not interfere. (g) In the above circumstances, the view taken by the Tribunal on the facts before it, is a possible view and does not give rise to any substantial question of law. (h) In any event, as rightly pointed out by Mr. Sridharan, learned Senior Counsel for the respondents assesses, the order of this Court in Triumph International Finance (supra) was rendered on 12th June, 2012. This, was in an appeal filed by the Revenue from the order of the Tribunal dated 29th January, 2008, which had held that deposits / loans received through journal entries do not fall with the mischief of Section 269SS of the Act, so as to invite penalty under Section 271D of the Act. This, the Tribunal did by following its earlier orders in the case of V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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