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TMI Blog2022 (4) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to the A.Y. 2004-05 as well. ITA No. 1030/Ahd/2013 A.Y 2003-04 3. The assessee has raised following grounds of appeal:- "1. The ld. CIT(A) has erred in law and on the facts of the case in confirming the action of ld. AO in framing and passing the assessment order u/s. 144 of the Act as valid and appropriate action. 2. The ld. CIT(A) has erred in law and on the facts of the case in confirming the action of ld. AO in disallowing entire business expenditure of Rs. 5,82,162/- after holding that no business was carried out by the Appellant during the year under consideration. 3. The ld. CIT(A) has erred in law and on the facts of the case in confirming the action of ld. AO in treating interest income of Rs. 6,98,780/- as income from other sources and adding the same to total income of the Appellant. 4. Alternatively and without prejudice to above, both the lower authorities ought to have allowed deduction of expenditure amounting to Rs. 5,82,162/- u/s. 57 of the Act, against the interest income of Rs. 6,98,780/- treated as income from other sources, which has been laid out or expended wholly and exclusively in making/earning such income. 5. The ld. CIT(A) has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has earned interest income of Rs. 6,98,780/- which has been shown as 'business income', whereas it should have been considered as 'income from other sources'. Against the above interest income, the assessee had debited various expenses on account of depreciation, donation, insurance expenses and loan interest amounting to Rs. 5,82,162/-. The ld. Assessing Officer held that in absence of any explanation, the assessee did not conduct any business and the assessee has earned only 'interest income' which is considered as 'income from other sources'. Since the expenses claimed are not allowable against any income other than 'income from business or profession', therefore, the above expenses were disallowed and added to the total income. On verification of balance sheet, the ld. Assessing Officer observed that a total of Rs. 94,41,503/- have been shown under the head "loans". The assessee was asked to furnish names, addresses, PAN, copies of accounts with confirmations of these depositors. But since the assessee failed to produce any details regarding the cash deposits amounting to Rs. 94,41,503/- the same were treated as unexplained cash credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed by assessee that he is engaged in the business of providing need based finance. Even the earning of brokerage is a non-recurring activity. Therefore, the ld. CIT(A) held that the assessee did not earn business income. On the alternate argument that payment of interest be given to the assessee if the income is assessed under the head "income from other sources", in absence of evidence that such borrowing is directly linked with such loan advances, such deduction cannot be allowed u/s. 57 of the Act. The ld. CIT(A) observed that the assessee did not produce books of accounts or any details to establish the nexus between borrowed fund to such loans and advances. Accordingly, the ld. CIT(A) dismissed this ground of the assessee. 5.1. Regarding the addition of Rs. 94,41,503/- u/s. 68 of the Act, the ld. CIT(A) gave part relief to the assessee and confirmed addition in respect of Rs. 5 lakhs from M/s. Radhe Shyam Investment Corporation on the ground that no PAN or present address of the party was furnished and hence the appellant had not discharged its onus u/s. 68 of the Act. 5.2. Regarding the addition of Rs. 1,09,200/- u/s. 22 of the Act, the ld. CIT(A) upheld the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for other personal expenditure of purchase of flat, car or other assets, deduction of such amount cannot be allowed u/s. 57 of the Act. 7. We have heard arguments of both the parties and perused the material on record. Ground No. 1 of the assessee's appeal regarding the action of the ld. Assessing Officer in framing assessment order u/s. 144 of the Act. The ld. counsel for the assessee did not specifically press for the same and even otherwise from perusal of material on record despite several opportunities being granted, since the assessee did not cause appearance, we are of the view that ld. CIT(A) has not erred in law and on facts of the case in confirming the action of the ld. Assessing Officer in framing and passing assessment order u/s. 144 of the Act. Ground Nos. 2 to 4 which is in relation to treating the interest income of Rs. 6,98,780/- as 'income from other sources' and consequentially disallowing business expenditure of Rs. 5,82,162/- after holding that no business was carried out by the appellant during the year under consideration. The ld. counsel for the assessee submitted that the Department has in the later years as well have accepted the position that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of interest can be linked with payment of interest on borrowed fund and deduction of such interest is allowable but in the absence of evidences from the appellant that such borrowing is directly linked with such loan advances and not for other personal expenditure of purchase of flats, car or other asset, such deduction can be allowed u/s. 57 of the Act. The appellant submitted profit & loss account and balance sheet only reflecting various asset, sundry creditor & debtor but not produced books of account pr my details to establish the nexus between borrowed fund to such loan & advances. It is therefore such alternative ground cannot be accepted. In totality this ground is dismissed." From the above observations of ld. CIT(A) for A.Y. 2004-05 and from the material on record, it can be concluded that no evidence has been filed by the assessee in support of its claim that it was engaged in the business of providing need based finance. The assessee either during the course of assessment or at appeal stage did not produce any books of accounts, bills, vouchers, etc. in support of the genuineness of the claim. Regarding the alternate claim of the assessee that in the event the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st High Court ruling that where assessee took loan from an entity, however, failed to produce any confirmation from such entity or produce its owner in person for cross-examination and also failed to produce any document to establish identity of such creditor or genuineness of alleged loan transaction, impugned addition made under section 68 in respect of such loan amount was justified. In the result, we are of the view that ld. CIT(A) has not erred in law and on facts of the case in sustaining addition made by the ld. CIT(A) to the extent of Rs. 5 lakhs u/s. 68 of the Act. 10. In the result, the ground no. 5 of the assessee is dismissed. 11. Regarding Ground No. 6 in respect of addition of Rs. 1,09,200/- u/s. 22 of the act as noted in the preceding paragraphs, the ld. counsel for the assessee has already submitted before us that the Department has already granted 30% standard deduction u/s. 24 of the Act and he has nothing further to submit in the matter. Therefore ground no. 6 of the assessee hereby is dismissed. 12. In the result, ground no. 6 of the assessee is dismissed. 13. Regarding ground nos. 7 and 8 in respect of initiation and imposition of penalty u/s. 271D and s. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of income, treated the above income as 'income from business' and after claiming expenses against the same, the net profit worked out at Rs. 1,50,227/-. During the course of assessment, the ld. Assessing Officer asked the assessee to provide details of one party namely, Shriram Lakhan Sharma from whom the assessee had accepted Rs. 2,80,000/- in cash but the assessee neither provided the PAN No. of such party and nor the address details. In absence thereof, the ld. Assessing Officer added an amount of Rs. 2,80,000/- as unexplained cash credit u/s. 68 of the Act. During the course of assessment, the ld. Assessing Officer noted that the assessee had debited expenses amounting to Rs. 5,98,616/- against interest receipt of Rs. 6,58,498/- and other receipts of Rs. 90,346/- by treating the above said as its business income but from the records available the assessee had not carried out any business activity. The ld. Assessing Officer accordingly requisitioned the assessee to produce the books of accounts for verification. However, the assessee did not file any reply and accordingly the ld. Assessing Officer disallowed the entire expenses of Rs. 5,98,616/- on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate dealing on commission basis. In the absence of any evidences on record to show that appellant devoted regular time and his interest to earn interest income as basic requirement, it cannot' he held that appellant has taken any risk in such continuous activity of providing finance and therefore the same is business activity. Even the earning of brokerage is also a non recurring activity. It is therefore, 1 am not inclined with the contention of the appellant that expenditure so disallowed by A.O. being there no business activity, the same be allowed since there is 'Lull in business' or 'out of business'. The all important aspect of disallowance is non production of books of accounts, bills, vouchers etc. for such claim being genuine. Even in appeal proceeding no such bills, vouchers, were produced. It is in this regard, the A.O. in the final para of computing income has not treated interest of Rs. 658498 as income from other sources but disallowed the expenses so claimed. Now coming to alternative ground that deduction of payment of interest out of the interest income be given to appellant if the income is assessed under the head 'Income from other sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or produce its owner in person for cross-examination and also failed to produce any document to establish identity of such creditor or genuineness of alleged loan transaction, impugned addition made under section 68 in respect of such loan amount was justified. In absence of the details of parties like PAN or address etc. being furnished by the assessee, we are of the view that the burden u/s. 68 of the Act has not been discharged by the assessee and we therefore uphold the addition sustained by the ld. CIT(A). 23. In the result, the ground no. 2 of the assessee is dismissed. 24. Regarding ground no. 3 in respect of disallowance of entire business expenditure of Rs. 5,98,616/- after holding that no business was carried out by the assessee during the year under consideration, since the facts are similar to the facts immediately preceding assessment year 2003-04, the observations made by us for A.Y. 2003-04 would equally apply to this year as well. We find no infirmity in the order of Ld. CIT(A), where he has held that the assessee has taken inconsistent position in various years. Further, the Ld. CIT(A) has also specifically observed that there has been non production of books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal." 32. The brief facts of the case have been mentioned in ITA No. 1030/Ahd/2013 A.Y. 2003-04 and hence the same are not reiterated again for the sake of brevity. At the time of assessment order, the ld. Assessing Officer initiated penalty proceedings u/s. 271(1)(c) of the Act and notice was issued to the assessee on 27-03-2006 but assessee failed to comply and hence another show cause notice dated 23-08-2016 was issued. The assessee again did not comply with the aforesaid notice and accordingly the ld. Assessing Officer passed minimum penalty u/s. 271(1)(c) of the Act at 100% of concealed income which worked out to Rs. 33,55,999/-. The assessee filed appeal against the order of penalty passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from other sources" as against "business income". Therefore, the assessee has neither consequentially concealed any income nor furnished inaccurate particulars of income. The assessee placed reliance on the case of Reliance Petro-products Ltd. 322 ITR 158 (SC). Regarding penalty of business expenditure of Rs. 5,82,162/-, the ld. counsel submitted that Assessing Officer has not found any fault with the genuineness of such expenses and therefore under such circumstances no penalty can be levied u/s. 271(1)(c) of the Act. Regarding penalty on account of addition of Rs. 5 lakhs u/s. 68 of the Act, the ld. counsel for the assessee submitted that initially onus was already discharged by assessee on production of ledger account of party and therefore there is no cause for confirmation of penalty on account of this addition. Regarding the penalty in respect of addition of Rs. 1,09,200/- in respect of annual value of property, the ld. counsel for the assessee submitted that such addition has been made with respect to notional income estimated by Assessing Officer. No such income has been actually earned by the assessee and therefore when there is no real income, then, even if addition is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the effect that Ld. CIT(A) has erred in upholding levy of penalty u/s. 271(1)(c) of the Act is being dismissed for reasons cited above. 37. In the result Ground No. 1 of the assessee's appeal is dismissed. 38. Ground No. 2 of the assessee's appeal, which is to the effect that penalty order passed by Ld. CIT(A) is barred by limitation is being dismissed since assessee has himself has filed appeal against penalty order passed by Ld. AO after a substantial delay of 1492 days (which was subsequently condoned by Ld. CIT(A) in his order). The assessee himself has not availed legal remedy available to it within stipulated time frame and hence now cannot take a plea that Ld. CIT(A) has not passed order within reasonable time, when such delay in passing of order was occasioned by the assessee. 39. In the result Ground No. 2 of the assessee's appeal is dismissed. 40. Ground Nos. 3 and 5 of the assessee's appeal are general in nature and do not require any specific adjudication. 41. In the result Ground No. 3 and 5 of the assessee's appeal is dismissed. 42. Ground No. 4 of the assessee's appeal that Ld. AO did not record mandatory satisfaction for initiating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 31/05/2007 was issued. The assessee again did not comply with the aforesaid notice and accordingly the ld. Assessing Officer passed minimum penalty u/s. 271(1)(c) of the Act at 100% of concealed income which worked out to Rs. 3,29,529/-. The assessee filed appeal against the order of penalty passed by ld. Assessing Officer. 47. In appeal, the ld. CIT(A) observed that on perusal of records of appellant from A.Y. 2003-04 to A.Y. 2006-07, the appellant has inconsistently taken up the income assessable income from other sources as business income to claim deduction of various expenditure which are otherwise not allowable. Against such head he held that despite being good receipts, the appellant through his dubious and deliberated method has not paid any tax from A.Y. 2003-04 to A.Y. 2005-06 and in 2006-07 paid an amount of Rs. 1300 as self assessment tax. The appellant did not co-operate in assessment proceedings to avoid scrutiny of his case and it did not even file appeal against such order. The books of accounts, bills, vouchers etc. were never produced before Department at any level even in appellate proceedings for both quantum as well as penalty order, no such bills, vouche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to notional income estimated by Assessing Officer. No such income has been actually earned by the assessee and therefore when there is no real income, then, even if addition is confirmed in quantum proceedings then no case is made out for penalty u/s. 271(1)(c). The ld. counsel for the assessee cited various case laws in support of his contention that mere fact addition has been confirmed in quantum proceedings does not straightway result penalty u/s. 271(1)(c) of the Act. He further submitted that it is a settled law that once any assessee offers plausible explanation, substantiated the same with documentary evidence and such explanation is not found to be false by Department then even if such explanation is not acceptable to the Department then also the penalty u/s. 271(1)(c) cannot be levied. The ld. Departmental Representative relied upon the observations made by the ld. CIT(A) in his order. 49. We have heard the rival contentions and perused the material on record. From the facts on record, we are in agreement with the order of ld. CIT(A) that the assessee has been inconsistent in his approach wherein in one year, he has shown interest as "income from other sources" wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal that Ld. AO did not record mandatory satisfaction for initiating penalty proceedings u/s. 271(1)(c) of the Act, is factually incorrect and hence being dismissed. Such satisfactions forms part of the assessment order. 57. In the result Ground No. 4 of the assessee's appeal is dismissed. 58. In the result, the appeal of the assessee is dismissed. ITA 2771/Ahd/2013 and ITA 2772/Ahd/2013 59. Both these appeals have been filed against the common order of ld. CIT(A)-XV Ahmedabad dated 24-09-2013 u/s. 271D and section 271E of the Act. Since both the appeals are emanating out of the same order, both are being taken up together. ITA 2771/Ahd/2013: 60. The assessee has taken up the following grounds of appeal:- "1. The ld. CIT(A) has erred both in law and on the facts of the case in imposing penalty of Rs. 95,000/- u/s. 271D of the Act for alleged violation of provisions of S. 269SS of the Act. 2. The order passed by the ld. CIT(A) is barred by limitation and beyond his jurisdiction. 3. The ld. CIT(A) has erred in both in law and on the facts of the case that in not appreciating the scheme of the Act whereby penalty u/s. 271D of the Act can be imposed only by the Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration after a gap of almost 10 years, which is beyond the reasonable period of time to pass any order. 7. Alternatively and without prejudice to above raised grounds, the ld. CIT(A) has erred in law in not appreciating that there was a reasonable cause for alleged breach of provisions of S. 269T of the Act, and therefore, in view of provisions of S. 273B of the Act no penalty could have been levied by him. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal." 62. The brief facts of the case are that during the course of appellate proceedings in Appeal No. CIT(A)-XV/ITO 9(2)/111/10-11 A.Y. 2003-04, the ld. CIT(A) observed that assessee had made infringement of section 269SS of the Act as well as section 269T of the Act which calls for levy of penalty u/s. 271D and 271E of the Act. The ld. CIT(A) while disposing of quantum appeal for A.Y. 2003-04 vide order dated 28-01-2013, on the basis of facts available on record, drew satisfaction in the said appeal order and initiated penalty proceedings u/s. 271D and 271D of the Act. As per provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay application. In the assessment order u/s. 143(3) of the Act dated 27-03-2016 for the captioned year, various opportunities were provided to the assessee, who was alive at that time did not attend the proceedings nor responded to notices thereby leading to ex-parte assessment order being passed u/s. 144 of the Act. The assessee expired on 06-02-2008 and legal heir Shri Pawan Sharma filed an appeal with condonation of delay of 1600 days. Importantly, PAN, confirmation, address of all such parties from whom cash was accepted and repaid were filed by the legal heir and therefore he was well aware of the business affairs of the deceased assessee. Considering the background of criminal proceedings against assessee, such acceptance and repayment of loan in cash are within the objective of promulgation of section 269SS and 269T of the Act. Therefore, the ld. CIT(A) held that the assessee cannot be held as prevented by reasonable cause for acceptance of such cash and repayment of such loan in cash. So far as objection that the notice is bad in law since penalty u/s. 271D and 271E can be imposed only by the Joint Commissioner, the ld. CIT(A) rejected this objection by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it is a settled legal position that there is no statutory provision under which a power to be exercised by officer can be exercised by a superior officer. The assessee placed reliance on several cases in support of the aforesaid legal proposition. The ld. counsel for the assessee further submitted that while disposing of an appeal against order of assessment, ld. CIT(A) would not have initiated penalty proceedings u/s. 271D and section 271E. Section 251 of the Act provides for power of CIT(A) in disposing of an appeal. Once the appeal before CIT(A) has been disposed off, no further action can be taken by him. The ld. Departmental Representative on the other hand relied upon the order of the ld. CIT(A) imposing penalty u/s. 271D and 271E. 65. We have heard the rival contentions and have perused the material on record. We are in agreement with the argument of the counsel for the assessee that the language as per section 271D and 271C of the Act is very categorical and is not open to interpretation. The operative part of the section is being reproduced for ready reference: Penalty for failure to comply with the provisions of section 269SS. 271D. (1)...... (2) Any penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmedabad - ITAT) (SB), where is the Tribunal observed as under: 12. Therefore, one of the pillars of statutory interpretation, viz., the literal rule, demands that if the meaning of the statutory interpretation is plain, the Courts must apply the same regardless of the result. The very concept of interpretation connotes the introduction of elements as are necessarily extrinsic to the words in the statute. Though the words 'interpretation' and 'construction' are used interchangeably, the idea is somewhat different. The rule of construction that if the statutory provision is susceptible or admits of two reasonably possible views, then the one which would promote its constitutionality should be preferred on the ground that the Legislature is presumed not to have intended to exceed its own jurisdiction, is subject to the further rule that it applies only where two views are reasonably possible on the statutory language. 65.2. We are therefore in agreement with argument of the Counsel for the assessee that when as per the Rule of Literal interpretation, when the words of the Statute are plain and unambiguous, the same should be understood to represent the legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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