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TMI Blog2019 (4) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. We note that the approach of the AO in resorting to levy of the impugned penalty in the sum of ₹ 4,50,000/- is thoroughly unfounded in the circumstances and based on unconnected considerations not relevant to the issue in dispute which is untenable in law and accordingly, such specious action in that respect cannot survive for judicial scrutiny and the ld. Commissioner (Appeals) was absolutely wrong in upholding such impugned levy in a preposterous manner without appreciating the facts and circumstances of the instant case in the proper perspective and acted beyond the pale of law - appeal of the assessee is allowed - ITA No.2254/Kol/2017 - - - Dated:- 29-3-2019 - Shri A.T. Varkey, JM And Dr. A.L.Saini, AM For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties and perused the material available on record. We note that Ranjit Roy (HUF). of the appellant and the appellant is one and same person and as such. no amount had been actually transferred from one account to another account and as such, cannot be construed to be of the same genre as a 'loan' or 'deposit' for the application of section 271D of the Income Tax Act. 1961. It was also argued that these payments were genuine as the payee had confirmed such payments which had been accounted for in its books and as such, the mischief of section 271 D of the Act is inapplicable. It was also pleaded by the ld. Counsel before us that the assessee was in dearth of funds on the dates when such amounts were receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer the funds from one concern to another or to repay the funds could have been said to have been largely influenced by the same individual, it cannot be said that the transactions partake the nature of either deposit or loan [VIRAMBHAI RAMABHAI PATEL VS. JCIT (I.T.A. NO. 2230/AHD/12 DATED 22.03.2013]. Thus, the acceptance of the financial accommodation from Ranjit Roy (HUF) by the assessee does not fall within the purview of provisions of s. 269SS of the Act as the appellant is acting in a dual capacity being the appellant himself as well as the Karta of his own H.U.F i.e. Ranjit Roy (HUF) and there being common control of funds with the assessee. Thus there is no infringement of the provision of s. 269SS of the Income Tax Act, 1961. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted an amount of ₹ 7.80 lacs on account of temporary financial accommodation from his mother Smt. Alpana Saha. According to him, taking cash from mother/parent out of business expediency cannot attract penalty u/s. 271D r.w.s. 269SS of the Act. Ld. Counsel drew our attention to the Coordinate bench decision in Swapan Dutta Vs. JCIT, Range-2, Hooghly, reported in 2010 Tax L. R. 166, wherein it was held as under: 5. After hearing both the parties and perusing the material available on record and the case laws cited by the assessee, we find that in this case, admittedly, the money has come from the parents of the assessee. Therefore, the ratio laid down in the case of G. D. Subraya Sheregar v. I. T.O. (2006) 10 378 by the Banga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted considering ignorance to be a reasonable cause . In the instant case also, the auditors did not point out any violation of S. 269 SS of the Act. In view of the above, we are of the considered opinion that this is not a fit case in which penalty u/s. 271D can be levied. The penalty so imposed by the Assessing Officer and sustained by the learned CIT(A) is hereby deleted. Therefore, the appeal of the assessee is allowed. 4. Since the facts of the case of the assessee is similar to that of the case of Swapan Dutta (supra) and the Ld. DR could not point out any change in the facts or in law, since the facts of the assessee s case is similar to that of Swapan Dutta (supra), we are inclined to follow the decision of the Co-ordinate benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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