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TMI Blog2013 (7) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act can be levied for breach of section 269T - No reason to interfere with the impugned judgment and order passed by the ITAT in confirming the order passed by the CIT(A) - Following decision of CIT vs. Rugmini Ram Ragav Spinners P.Ltd. [2007 (7) TMI 237 - MADRAS HIGH COURT] - Decided against Revenue. - Tax Appeal No. 561 of 2013 - - - Dated:- 3-7-2013 - M. R. Shah And Sonia Gokani,JJ. For the Appellant : Mrs. Mauna M Bhatt, Advocate ORDER (Per : Honourable Mr. Justice M. R. Shah) 1. Present Appeal has been preferred by the Revenue challenging the impugned judgment and order passed by the Income Tax Appellate Tribunal (hereinafter to be referred to as ITAT ) dated 14.12.2012 by which ITAT has dismissed the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 271E of the Act. Show cause notice was issued upon the assessee on 22.1.2009 to show cause as to why penalty under section 271E of the Act should not be levied for contravention of provisions of section 269T of the Act. 2.3 That the Additional Commissioner of Income-Tax passed the final order on 9.4.2009 imposing penalty of an equal amount of Rs.15,92,940/- being penalty under section 271E of the Act. 3. At this stage, it is required to be noted that it was the specific case on behalf of the assessee that the amount of Rs.15,92,940/-, which was repaid was by way of advance taken from different persons and on the other hand, the Department treated it as loan and/or deposit. 4. Feeling aggrieved by and dissatisfied with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 parties were refunded their advance money (without interest) because of various reasons. The provisions of sec.269SS and 269T are applicable where loan or deposit have been accepted or repaid otherwise than account payee cheque. Here, customers had given earnest money (booking advance) for purchase of shop/office/flat. Many of the advances money received by cheques and in some cases by cash. Considering the nature of the repayment, which does not fall under the category of loan or deposit, the provisions of sec.269T r.w.s. 271E are not applicable to this case. Here, it is also interesting to note that while accepting the advance money, in some of the cases, the appellant has accepted the same in cash exceeding Rs.20,000/- which was in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue preferred appeal before ITAT and by impugned judgment and order the ITAT has dismissed the said appeal preferred by the Revenue by observing in paragraphs 9 to 12 as under:- 9. We have heard the rival; submissions and perused the material on record. The factual matrix of the case is that the assessee is engaged in the business of building properties of various sites. The assessee has sold 264 units in his project and in the case of 18 parties the amount aggregating to Rs.15,92,940/- was returned to the parties in cash. It is a fact that the amount returned represented the earnest money received by it on sale of units. The assessee has reflected the advance received in its balance sheet and the same has been accepted by the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the knowledge of A.O but A.O had not applied the provisions of sec.271D of the Act. He has further held that there is no ban in the Act against accepting cash for sale of an immoveable asset. In the present case the advance is for purchase of shop/premises which is accepted asset. CIT(A) has further observed that A.O has not commented on the detailed submissions filed before him during the course of penalty proceedings and without appreciating the full facts. A.O has levied penalty only for the reason that the refunds were made by the cheques. Nothing has been brought on record by Revenue to controvert the findings of CIT(A) further the case laws relied by the Revenue are also distinguishable on facts. 12. In the case of Shiv Enterpri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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