2024 (8) TMI 1235 - AT - Income Tax

Penalties levied u/s 271D 271E - assessee having been found to be violated the provisions of Section 269SS and 269T - HELD THAT - There is no concrete finding of the assessee having accepted loans in violation of the provisions of Section 269SS of the Act or repaid the same in violation of the provisions of Section 269T of the Act. The only finding of the Revenue is to the effect that 11 cheques pertaining to the assessee were found at Sudama Resorts whose Director had contended that the cheques were obtained from financiers for arranging loans in cash to them. Except for the statement of the Director of the Sudama Resorts, there is no other evidence with the Revenue. Assessee in fact had sought cross-examination of the Director of the Sudama Resorts and the same was not given by the AO. Therefore, this statement of Director of Sudama Resorts has no evidentiary value in the eyes of law as laid down in the case of Andaman Timber Industries 2015 (10) TMI 442 - SUPREME COURT - Moreover it is a fact on record that the director of Sudama Resorts had surrendered income on account of cheques found during search at its premises. There is agree with assessee, no concrete finding of the Revenue ,based on authentic evidence, of the assessee having accepted and repaid loan in violation of the provisions of section 269SS/T of the Act. The finding of the Revenue to this effect is merely based on surmises and conjectures. With no clear finding based on authentic evidence of the assessee having violated the provisions of Section 269SS and 269T of the Act, we agree with assessee that there was no case for levy of penalty u/s 269D and 269E of the Act respectively. As in the case of Sneh Builders 2011 (5) TMI 1156 - ITAT PUNE squarely applies to the case of the assessee wherein identical penalty levied u/s 271D of the Act on the presumption that the assessee must have taken loan in violation of provisions of Section 269SS was deleted noting no concrete evidence brought on record to establish the fact of the assessee having violated the relevant provisions - Appeals of the assessee are allowed.

Issues Involved:
1. Levy of penalty under Section 271D for alleged violation of Section 269SS of the Income Tax Act, 1961.
2. Levy of penalty under Section 271E for alleged violation of Section 269T of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Levy of Penalty under Section 271D for Alleged Violation of Section 269SS:
The primary issue was the levy of a penalty of Rs. 8,25,000/- under Section 271D for the alleged violation of Section 269SS, which prohibits acceptance of loans or deposits in cash beyond a specified limit. The Revenue's charge was based on the discovery of 11 bearer cheques, each amounting to Rs. 75,000/-, found during a police search at Sudama Resorts. The Director of Sudama Resorts, in his statement recorded under Section 131(1A), admitted to arranging finances and obtaining cheques from financiers but could not name them. The Revenue inferred that these cheques were issued by the assessee and represented cash loans taken in violation of Section 269SS.

The assessee contended that the penalties were based on mere surmises and conjectures without concrete evidence. The assessee also pointed out that two cheques dated 15-05-2012 and 15-06-2012 had not been deposited even at the time of the search, indicating no actual cash transactions. Furthermore, the Director of Sudama Resorts had owned up the income from the cash and cheques found, which had been taxed in his hands. The assessee's request for cross-examination of the Director was denied, which weakened the evidentiary value of the Director's statement.

The Tribunal noted that the Revenue's case rested solely on the statement of the Director of Sudama Resorts and the discovery of bearer cheques. There was no concrete evidence to substantiate the allegation of cash loans. The Tribunal referenced the case of Navin Kumar v. JCIT, Bhatinda (98 ITD 242), emphasizing that penalty proceedings are quasi-criminal and require clear findings based on authentic evidence. The Tribunal also cited the case of Sneh Builders (ITA Nos. 520/PN/2008 and 456/PN/2008), where penalties under Section 271D were deleted due to lack of concrete evidence.

2. Levy of Penalty under Section 271E for Alleged Violation of Section 269T:
The second issue was the levy of a penalty of Rs. 8,25,000/- under Section 271E for the alleged violation of Section 269T, which prohibits repayment of loans or deposits in cash beyond a specified limit. The Revenue's charge was based on the same set of facts as the Section 271D penalty, i.e., the issuance of bearer cheques by the assessee found during the police search at Sudama Resorts.

The assessee argued that since there was no conclusive proof of cash loans being taken, the question of cash repayment did not arise. The Revenue failed to provide concrete evidence that the loans were repaid in cash. The Tribunal agreed with the assessee, noting that the penalties were based on presumptions and not supported by authentic evidence.

The Tribunal referenced the Supreme Court's decision in Umacharan Shaw & Bros (371 ITR 271), which held that conclusions based on suspicion could not replace proof, a principle applicable even in penalty proceedings.

Conclusion:
The Tribunal concluded that there was no clear finding based on authentic evidence that the assessee had violated the provisions of Sections 269SS and 269T. The penalties under Sections 271D and 271E were based on surmises and conjectures. Therefore, the Tribunal directed the Assessing Officer to delete both penalties.

Result:
Both appeals of the assessee were allowed, and the penalties levied under Sections 271D and 271E were deleted. The order was pronounced in the open Court on 23/08/2024 at Ahmedabad.

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