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TMI Blog2001 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... been advised complete bed rest from 6th Dec., 1999, to 30th Dec., 1999. However, it was found that appeal memo had been signed on 28th Dec., 1999, which perhaps shows that the assessee was able to attend to such work. However, on the date of hearing the learned counsel for the assessee strongly pleaded that the assessee was a retired salaried person and non-condonation of delay would cause an irreparable loss and injustice. He, therefore, pleaded that delay in this case may be condoned. The learned Departmental Representative did not raise any specific objection to the submissions of the learned counsel. Considering the fact that the delay is only for 18 days and in the interest of justice we consider it a fit case for condonation of delay. Therefore, the delay is condoned and appeal is admitted. 3. Briefly stated, the facts of the case are that the assessee had filed the return for the asst. yr. 1995-96 on 27th Feb., 1997, declaring therein income of Rs. 76,328, which comprised of salary income and interest income from Golden Forests (India) Ltd. (hereinafter shortly referred to as GFIL). During the course of assessment proceedings, the AO observed that the assessee had accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded that deposit of Rs. 2 lacs was made by taking a loan of Rs. 1 lac from his son Shri Pardeep Kaushik and the same violated the provisions of s. 269SS. Therefore, the Dy. CIT imposed a penalty of Rs. 1 lac under s. 271D. 5. Being aggrieved with the order of the Dy. CIT, the assessee took the matter in appeal before the CIT(A), who confirmed the penalty by observing that if deposit of Rs. 2 lacs with GFIL was joint, the receipt for the same should have been issued either in their joint names or in favour of both father and son accepting the loan of Rs. 1 lac. Aggrieved further, the assessee has now preferred the present appeal before us. 6. The learned counsel for the assessee submitted written submissions reiterating the same arguments, which were raised before the authorities below. He submitted that the assessee and his son had joint a/c No. 10370 with the Punjab National Bank, Pinjore. The amount of Rs. 2 lakhs withdrawn from the bank account represented assessee' own money of Rs. 1 lac and his son's own money of Rs. 1 lac. The same was deposited with GFIL, Manimajra. Though the receipt was issued in the name of the assessee yet the intention of the assessee and his so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties and carefully considered the rival submissions. We have examined the facts, evidence and material on record. We have also perused the orders of the authorities below and referred to the various decisions to which our attention was drawn. Sec. 269SS provides that no person shall take or accept from any other person, any loan or deposit otherwise than by an account-payee cheque or account-payee bank draft if the amount of such loan or deposit is Rs. 20,000 or more. A plain reading of the section makes it clear that provisions of s. 269SS shall be applicable only in cases of loan and deposits of Rs. 20,000 and above. But it is obligatory on the part of the Revenue to establish that amount covered under the transactions was either a loan or a deposit. From a perusal of the assessment order and reply submitted before the Dy. CIT in response to the show-cause notice, the stand of the assessee has been consistent i.e., the assessee had never taken any loan from his son Shri Pardeep Kaushik. In fact, the assessee had also produced a bank pass book along with his reply dt. 16th Dec., 1997, before the AO during the course of assessment proceedings. The contention of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter XX-B of the IT Act. The intention of the legislature in bringing these sections in the statute book was to avoid certain instances of tax evasion whereby huge transactions were made outside the books of accounts by way of cash. So far as this case is concerned, undoubtedly, there is neither any evasion of tax nor concealment of income. Even if it is assumed for argument's sake that the impugned transaction was a loan, even then no penalty under 271D would be exigible merely for technical violation of the section. The operation of s. 271D is not automatic and provisions of s. 273B fetter it. It is only in a case where the person is unable to establish the existence of a reasonable cause for non-compliance with the provisions that penalty would be leviable. In the case of ITO vs. Laxmi Enterprises (1990) 185 ITR 595 (AP), the Andhra Pradesh High Court, by referring to provisions of s. 269SS, where the expression used is "person is liable for penalty" has held that the word "liable" used in the section gives discretion to the Court with regard to the imposition of fine or penalty. The Court may either choose or impose fine or may dispense with the imposition of fine. When s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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