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TMI Blog2016 (3) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case are that M/s. Amarshiv Construction Pvt Ltd had borrowed a sum of Rs. 3,93,618/- from Shri Hasmukhbhai Manibhai Patel. Shri Hasmukhbhai Manibhai Patel had borrowed the money from Dakor Nagarik Sahakari Bank which was given as a loan to the company. The loan taken from the bank was to be repaid within a fixed period and the Director, Shri Hasmukhbhai Manibhai Patel failed to repay the amount. The Company has directly repaid the loan taken from Shri Hasmukhbhai Manibhai Patel to Dakor Nagarik Sahakari Bank . In this way, according to the Assessing Officer, the assessee has violated Section 269T of the Act by making repayment of alleged loan in cash. Accordingly, the ld. Assessing Officer initiated penalty proceedings u/s 271E o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalogy is applicable in the present case because in this case also the amounts have been taken from the Director. The Assessing Officer has not initiated the penalty proceedings on receipt of money, but such penalty was initiated on repayment of the money. If the receipt of money was not being treated as 'deposit' as per the order of ITAT, Kolkata Bench, then its repayment would also not come within the ambit of Section 269T and therefore, no penalty is imposable. On the other hand, ld. Departmental Representative relied upon the order of the Assessing Officer. 6. We have duly considered the rival contentions and gone through the record carefully. Similar issue was considered by the ITAT, Kolkata Bench (supra). The observations, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count. On an application praying for an order calling for a reference from the order of the Tribunal: Held, that the finding arrived at by the Tribunal was a finding of fact and, therefore, did not give rise to any question of law to be answered by the court." 6. He also referred to the decision of Hon'ble Madras High court in the case of CIT Vs. Idhayam Publications Ltd. (2006) 285 ITR 221 (Mad), wherein the Hon'ble High court has held as under: "We heard the arguments of learned counsel for the Revenue. We have perused the materials available in record. Admittedly Mr. S. V. S. Manian was one of the directors. Therefore the order of the lower authority clearly shows that there was a running current account in the books of account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee also referred to the decision of Hon'ble Gujarat High Court in the case of CIT Vs. Natvarlal Purshottamdas Pareekh (2008)303 ITR 5 (Guj), wherein Hon'ble High Court has reproduced para 18 of Tribunal's order and confirmed the issue as under: "18. As discussed above, the annexure attached to the penalty order goes to show that each of the family members of the assessee and each one of them was having sufficient opening balance as on April 1, 1990. After that we have to look into sources of the amounts received by the assessee on behalf of his family members as the same is an important factor. Handsome amount has been received on account of maturity of NSCs and then most of the amounts have been credited on account of gifts r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the facts are that the assessee company Mahmood Associates (P) Ltd. received cash loan from its director Md. Mahmood. In view of the above proposition of law laid down by various High Courts i.e. Hon'ble M.P. High Court in the case of Indore Plastics P. Ltd., supra, Hon'ble Madras High Court in the case of Idhayam Publications Ltd., supra and Hon'ble Gujarat High Court in the case of Natvarlal Purshottamdas Pareekh, supra, we find that the penalty levied by JCIT, Range-12, Kolkata and confirmed by CIT(A) needs to be quashed. No contrary decision was pointed out by Ld. Sr. DR despite we specifically asked him whether any High Court decision is available against the assessee or not. In term of the above, we delete the penalty levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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