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TMI Blog2002 (12) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred in concurring with the Dy. CIT in not accepting the contention of the appellant that the Bank A/c No. 2121 with Bank of Baroda in fact belonged to the appellant and the CIT(A) further erred in concurring with the Dy. CIT in not appreciating that the appellant had disclosed the same in his assets and the question of loan from the said a/c did not arise. 6. That the CIT(A) has erred in concurring with the Dy. CIT in not accepting the contention of the assessee that the amount of Rs. 70,000 alleged to have been taken by the assessee from his wife as loan was incorrect. It was not accepted as loan by the appellant and thereby the penalty under s. 271D was not imposable. 7. That the CIT(A) has erred in concurring with the Dy. CIT in not accepting the contention of the appellant that the case is covered under s. 273B and there was reasonable cause for the alleged failure, if any. 8. That the CIT(A) has erred in reducing the penalty by 50 per cent and thereby sustaining 50 per cent of the penalty. He ought to have reduced the penalty to nil. 9. Such other grounds as may be urged at the time of hearing." 3. In ITA No. 473(Asr)/1996, the Department has raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Baroda. The Dy. CIT has stated that whatever has been put before him was only an afterthought to avoid the consequences of the contravention of the provisions of s. 269SS of the Act. According to him, the default was not merely a technical one as asserted before him, but was to evade the source of investment, because the assessee wanted to get himself cleared from the assessment by declaring the amount of Rs. 70,000 as a liability of loan, but when it came to the contravention of s. 269SS, he shifted his stand taken in the course of assessment. Consequently, the learned Dy. CIT imposed a penalty of Rs. 70,000 under s. 271D of the Act. 5. Aggrieved by the order of the Dy. CIT, the assessee carried the matter in appeal to the CIT(A). It was submitted before the CIT(A), that unaccounted cash found in the course of searches carried out by the IT Department is often explained by the tax-payers as representing loans taken from or deposits made by various persons. Unaccounted income is also brought in the books of accounts in the form of such loans or deposits and tax payers are also able to get confirmatory letters from such persons in support of their explanation. With a view to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition of the immovable properties. The properties were acquired for the prosperity of family and transaction did not involve any interest element and there was no promise to return the amount with or without interest. In other words, the assessee was not required to pay the interest upon the amount, which was taken from Smt. Paramjit Kaur. He, therefore, submitted that the provisions of s. 269SS would not apply. He further submitted that the assessee has entertained a bona fide belief that he had received contribution from his family member i.e. his wife, and therefore, there was no violation of the provisions of s. 269SS of the Act. In other words, the assessee was under the bona fide belief that as the amount was available in cash and Smt. Paramjit Kaur was not giving the amount as loan and it was not required to be received by the account payee cheques or account payee bank draft. As an alternative submission, it was submitted that for the sake of argument, if it is assumed that there was a default, the default can be considered as a venial breach of law. While relying upon the decision of the Hon'ble Supreme Court in the case of Hindustan Steel Ltd. vs. State of Orissa (1972) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wife gave money to the husband for investment in the acquisition of the immovable properties, which was actually for the prosperity of the family only. There is no evidence on record to suggest that the amount in question was taken for commercial use. The Department has stated that the amount in question was a loan but at the same time, it is not clear whether there was promise to return the amount with or without interest. It is also true that the AO has recorded the statement of Smt. Paramjit Kaur under s. 131 of the Act. However, no question was put to her regarding the payment of interest. Whether the assessee had paid any interest on the amount of Rs. 70,000, there is no such indication in the orders of the authorities below. There is also no material on record to show that the assessee had returned the amount received from wife or he had paid the interest thereupon. 10.1. At this stage, I may refer to a decision of the Calcutta Bench of the Tribunal in the case of Dr. B.G. Panda vs. Dy. CIT in I.T.A. No.2742(Cal)/1993, dt. 10th March, 1998, wherein the following observations were made: "In the instant case, the wife gave money to husband for construction of a house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by sufficient cause from receiving the money by an account payee cheque or account payee bank draft. 10.2. Without prejudice to the above, as an alternative submission, it was contended by the learned counsel for the assessee that in any case, the assessee has received contribution from his wife under the bona fide belief that as the amount was available in cash and she was not giving the amount as a loan and does not require to receive by account payee cheque or account payee bank draft. It was further contended that the amount, in question, was being given by his wife with a clear understanding that the same was contribution for the acquisition of the immovable property. According to the learned counsel for the assessee, for the sake of argument, if it is assumed that there was a default, the default can be considered as a venial breach of law. The Hon'ble Supreme Court in the case of Hindustan Steel Ltd. vs. State of Orrisa, has held as under: "An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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