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TMI Blog2024 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 69A of Rs. 7,51,000/- considering the same as the unexplained income of the assessee. 3. On the facts and in the circumstance of the case and under the provisions of the law the CIT(A) erred in holding that the amended provision of section 269SS are applicable to the assessee in respect of cash advances received by the assessee against the Agreement to Sale entered by the assessee on 27.12.2011 and 19.08.2014. 4. On the facts and in the circumstances of the case the order passed u/s. 271D by the assessing officer is bad in law. 5. The Assessee craves leave to add, amend, or alter the grounds of appeal at the time of hearing. 3. Brief facts of the case are that the assessee is an individual filed his return of income on 05.08.2016 declaring a total income of Rs. 7,37,330/-. Subsequently, against the proceedings initiated under section 148. The assessee has declaring total income of Rs. 7,31,350/- on 31.12.2021. The reopening assessment on the case of assessee is completed on 21.03.2022 by making various addition. Out of the said addition there is an addition pertaining to un-explained money u/s 69A of the Income Tax Act against which penalty proceedings were initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount payee bank draft or use of electronic clearing system through a bank account [or through such other electronic mode as may be prescribed] if, 1. the amount of such loan or deposit or specified sum or the aggregate amount of such loan, deposit and specified sum; or 2. on the date of taking or accepting such loan or deposit or specified sum, any loan or deposit or specified sum taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment Onas fallen due or not), the amount or the aggregate amount remaining unpaid; or 3. the amount or the aggregate amount referred to in clause (a) together with the amount or the aggregate amount referred to in clause (b) is twenty thousand rupees or more: Provided that the provisions of this section shall not apply to any loan or deposit or specified sum taken or accepted from, or any loan or deposit or specified sum taken or accepted by,- 1. the Government; 2. any banking company, post office saving bank or co-operative bank; 3. any corporation established by a Central, State or Provincial Act; 4. any Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30000/- 475000/- 8. 20.02.2016 2015-16 55000/- 530000/- 8. Further, it is noted that at the time of making another agreement of sale with Shri Shiv Shambhu Singh for selling of his duplex house on 19.08.2014 for a total consideration of Rs. 45,50,000/- and the assessee has received Rs. 21,000/- as token amount at the time of executing the said agreement. An amount of Rs. 2,00,000/- received during the FY 2015-16. Accordingly, Ld. AO has made the addition of Rs. 7,51,000/- (Rs.5,30,000 + Rs. 21,000 + 2,00,000) in aggregate for all the aforesaid transactions. 9. Ground No.1: Challenging the penalty imposed by the department, Ld. AR submitted that since the amount received by the assessee in cash is covered under the definition of specified sum received above Rs. 20,000/- as per amendment brought in the statute w.e.f. 01.06.2015. Admittedly, the assessee has received the consideration towards the sale of properties in cash on the basis of two agreements with Shri Khalid Khan on 27.12.2011 and with Shri Shambhu Singh on 19.08.2014 i.e. both these agreements are entered prior to the date of amendment in section 269SS applicable from 01.06.2015, it is further submitted by Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther placed his reliance on various judicial pronouncements as under: 1.24 Your honour, it is a settled law that if default was under bona fide belief and unintentional then penalty u/s 271D shall not be levied. The assessee relied in following judicial pronouncements - (i) CIT vs. PREETI FUELS AND FLAMES P. LTD (2011) 330 ITR 129 (C.G.) (ii) CIT vs. SAINI MEDICAL STORE (2005) 276 ITR 79 (P&H) (iii) OMEC ENGINEERS vs. COMMISSIONER OF INCOME-TAX [2007] 294 ITR 599 (JHARKHAND). (iv) KEHAR SINGH & Ors. vs. STATE (AIR 1988 SC 1889) (v) ASSISTANT DIRECTOR OF INSPECTION VS. KUM. A.B. SHANTHI 255 ITR 258 (SC) (vi) CIT vs. Smt. DIMPAL YADAV 379 ITR 177 (ALL). 13. Ld. AR filed a written submission on the issue, as under: 1.25 Your honour, it is also a settled law if reasonable cause exists then no penalty u/s 27 ID can be levied. The assessee relied in CIT vs. Manoj Lalwani (2003) 260 ITR 590 (Raj.) 1.26 Your honour, the assessee is not familiar as far as the complex Income Tax Laws are concerned. The assessee was not aware about the amended provisions u/s 269SS. No one informed the assessee about the change in the provisions of section 269SS. The assessee was under the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation of the tribunal are as under: Where assessee made repayment of loan in cash for reasons that she was insisted by financer of loan to do so due to poor track record of clearance of cheque and also she was ignorant of provisions of section 269T, since there were multiple other methods of repayment of loan envisaged in section 269T apart from payment through cheque and assessee had failed to come forth with any reasonable cause for such payment in cash, impugned penalty under section 271E imposed upon her was justified. 16. In view of aforesaid decision ground no. 1 of the appeal of the assessee stands dismissed. 17. Ground No. 2: At the outset, Ld. AR reiterated the facts and arguments from the same are extracted as under: Your honour, in this ground, the assessee has raised that on the facts and circumstances of the case and in law, the Id. CIT(Appeal) erred in not appreciating the fact that on the same set of information the AO made addition u/s 69A of Rs. 7,51,000/- considering the same as unexplained income of the assessee. 2.1 Your honour, the Id. AO re-opened the assessment to assess the undisclosed capital gain income and completed the assessment accordingly. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money received in cash was not deposit in contravention of section 269SS of the Income-tax Act, 1961 ?" 6. Mr. Kochar, learned counsel for the assessee, submitted that the said question does not arise in the case at hand inasmuch as both the Commissioner of Income-tax (Appeals) and the Tribunal have recorded a finding that once the Assessing Officer has treated it as an undisclosed income, it could not have proceeded on the foundation that it is a deposit. In our considered opinion, this submission canvassed by Mr. Kochar has substantial force and the question raised by the Revenue really does not arise in this case. Needless to say that the said question may arise where the facts would be different but the same has no relevance to the case at hand. In view of the aforesaid analysis, the appeal being devoid of merit stands dismissed without any order as to costs. (ii) DIWAN ENTERPRISES vs. CIT (2000) 246 ITR 571 (Del.) Section 269SS provides, inter alia, that no person shall, after June 30, 1984, take or accept from any other person, any loan or deposit otherwise by an account payee cheque or account payee bank draft, if the amount of such loan or deposit or the aggregate the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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