TMI Blog2009 (3) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2008 - - - Dated:- 3-3-2009 - J. S. KHEHAR and NAWAB SINGH JJ. Yogesh Putney for the petitioner. Kashmiri Lal Goel for the respondent. JUDGMENT The judgment of the court was delivered by J. S. KHEHAR J.- Through the instant order, we propose to dispose of I. T. A. Nos. 777 and 778 of 2008. The issue which arises for consideration is the validity of the order passed by the Income-tax Appellate Tribunal, Delhi Bench, on January 19, 2007, whereby, the penalty imposed on the respondent-assessee under sections 271D and 271E of the Income-tax Act, 1961 (hereinafter referred to as "the Act") was ordered to be set aside. 2. The basis of the controversy raised in the instant appeals emerges from the order dated October 11, 1993 (annexure A1) passed by the Deputy Commissioner of Income-tax, Rohtak Range, Rohtak, showing that the respondent-assessee, Sunil Kumar Goel, had taken the following loans in cash: 26-4-1990 5-5-1990 11-5-1990 19-5-1990 28-6-1990 16-7-1990 6-6-1990 12-6-1990 Rs. 25,000 30,000 10,000 10,000 20,000 15,000 20,000 15,000 3. The aforesaid cash loans were taken during the financial year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan or deposit of money." 4. A perusal of the aforesaid provisions reveals that it is not open to an assessee to accept a loan or a deposit (the aggregate whereof, is in excess of Rs. 20,000) by way of cash. It is apparent from the factual position noticed from the extract of the order dated October 11, 1993, that the respondent-assessee had taken loans in excess of Rs. 10,000 by way of cash. This action of the respondent-assessee was sought to be penalized by invoking section 271D of the Act. Section 271D of the Act is also being extracted hereunder: "271D. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner." 5. It is the vehement contention of the learned counsel for the Appellant-Revenue that section 271D of the Act is a mandate, inasmuch as, every violation of section 269SS of the Act, is liable to be penalized by imposing a penalty (equal to the amount of the loan/deposit taken or accepted by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er institution, association or body or class of institutions, associations or bodies which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette. Explanation - For the purposes of this section— (i) 'banking company' shall have the meaning assigned to it in clause (i) of the Explanation to section 269SS; (ii) 'co-operative bank' shall have the meaning assigned to it in Part V of the Banking Regulation Act, 1949 (10 of 1949); (iii) 'loan or deposit' means any loan or deposit of money which is repayable after notice or repayable after a period and, in the case of a person other than a company, includes loan or deposit of any nature." 8. It is apparent from the aforesaid provisions that return of loan/deposit by way of cash (which aggregates a sum in excess of Rs. 20,000), violates section 269T of the Act. The penal provisions for imposing penalty on account of the aforesaid violation is in the form of section 271E of the Act. Section 271E of the Act is also being extracted hereunder: "271E. (1) If a person repays any loan or deposit referred to in section 269T otherwise than in accordance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical non compliance with section 269SS and/or section 269T of the Act. Section 273B of the Act, which has been relied upon by the learned counsel for the respondent-assessee, is being extracted hereunder: "273B. Notwithstanding anything contained in the provisions of clause (b) of sub-section (1) of section 271, section 271A, section 271AA, section 271B, section 271BA, section 271BB, section 271C section 271CA section 271D, section 271E, section 271F, section 271FA, section 271FB, section 271G, clause (c) or clause (d) of sub-section (1) or sub-section (2) of section 272A, sub-section (1) of section 272AA or section 272B or sub-section (1) or sub-section (1A) of section 272BB or sub-section (1) of section 272BBB or clause b) of subsection (1) or clause (b) or clause (c) of sub-section (2) of section 273, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was reasonable cause for the said failure." 13. We have considered the submission advanced by the learned counsel for the respondent-assessee. We are satisfied that section 273B of the Act envisages a non-obstante clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the appellant-Revenue, that on eight different occasions different amounts ranging from Rs. 10,000 to 30,000 were taken by way of cash by the respondent-assessee as loans in conscious and deliberate disregard of obligation envisaged under section 269SS of the Act. And the aforesaid loans were then returned by way of cash, again, in conscious disregard of the obligation envisaged under section 269T of the Act. It was also submitted by the learned counsel for the appellant-Revenue, that it had not been argued at the hands of the respondent-assessee, that action of the respondent-assessee was not deliberate, or that, the same was under a bona fide belief that he could not accept or return a loan(s) in excess of Rs. 20,000 by way of cash. It is, therefore, the submission of the learned counsel for the appellant-Revenue, that the onus to establish bona fides at the hands of the respondent-assessee, squarely rests on the shoulder of the respondent assessee. In addition to the above, it is submitted that a breach of the provisions of the Act, cannot be justified on the alleged bona fide belief, which cannot be illustrated through cogent evidence. It is, therefore, the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
