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TMI Blog2004 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee was in the form of advance and not a loan as alleged by the Department. Therefore, the provisions of sections 269SS are not applicable to the facts of the present case. In that view of the matter, no penalty under section 271D is leviable to the facts of the instant case. - - - - - Dated:- 18-3-2004 - Judge(s) : N. K. SUD., HEMANT GUPTA. JUDGMENT The judgment of the court was delivered by N.K. SUD. - The Revenue has filed this appeal under section 260A of the Income-tax Act, 1961 (for short "the Act"), against the order of the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar (for short "the Tribunal"), dated June 30, 2003, allowing the appeal of the assessee and cancelling penalty of Rs. 4,24,930 levied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book) it would be clear that out of the amount of Rs. 6,49,344, the payer, i.e., M/s. Daljit Singh and Bros., had given D.D. on account of instalments for truck on April 8,1997, April 23,1997, August 2,1997, August 18,1997, December 31, 1997 and December 16, 1997, a sum of Rs. 50,000, Rs. 50,473, Rs. 24,951, Rs. 24,200, Rs. 49,200 and Rs. 24,900, respectively. The aforesaid amount totalling to Rs. 2,24,424 had not been treated by the Assessing Officer as a deposit/loan while imposing the penalty under section 271D of the Act, since those amounts had been paid by way of drafts, of course, to the financier, M/s. Tata Finance Ltd., on behalf of the assessee. The remaining amount of Rs. 4,24,930 has been considered as a loan, the aforesaid amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, held that it was a cover up story. However, it is noticed that notice under section 271D on the Act, had been issued by the Assessing Officer to the assessee on February 23, 2001, i.e., much after the affidavits were executed by both the parties, i.e., the assessee and the purchaser of the truck, namely, M/s. Daljit Singh and Bros. We, therefore, are of the view that the Assessing Officer was not justified in observing that it was a cover up story of the assessee. In the instant case it is not in dispute that the truck has been transferred by the assessee to M/s. Daljit Singh and Bros, as per the oral agreement between the parties. This claim has been made by the assessee before the Assessing Officer as well as before the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction between the assessee and M/s. Daljit Singh and Bros, as well as M/s. Tata Finance Ltd. In our view, the amount received by the assessee was in the form of advance and not a loan as alleged by the Department. Therefore, the provisions of sections 269SS are not applicable to the facts of the present case. In that view of the matter, no penalty under section 271D is leviable to the facts of the instant case. Accordingly, we delete the penalty imposed by the Assessing Officer and sustained by the Commissioner of Income-tax (Appeals)." A bare perusal of the above shows that the findings recorded by the Tribunal are pure findings of fact based on appraisal of evidence on record. The Tribunal has taken a possible view which has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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