Case Law Details
Hitesh Manshukhbahi Dave Vs JCIT (ITAT Rajkot)
Gujarat High Court in the case of Dr. Rajaram L. Akhaniv ITO [2017] 88 taxmann.com 693 (Gujarat) has held that where assessee had accepted a sum of Rs. 2 lakhs from his son to meet urgent requirement of depositing margin money in bank account for buying a vehicle for personal use, amount so received was neither a loan nor a deposit within meaning of section 269SS. The Delhi ITAT in the case of ACIT v Vardaan Fashion [2015] 60 taxmann.com 407 (Delhi – Trib.) held that acceptance of cash by husband from his wife cannot said to be taking of loan or advance in strict sense of section 269SS and therefore, no penalty under section 271D could be levied. In the case of Smt. Kusum Dhamani [2014] 47 taxmann.com 143 (Jaipur – Trib.), ITAT held that where assessee running a proprietorship concern, took cash loans from her husband carrying on another proprietorship business on account of business exigencies for making payments to labourers and lenders, there being no violation of provisions of section 269SS, impugned penalty order passed under section 27 1D was to be set aside. In the case of ITO v. Tarlochan Singh [2003] 128 taxman 20 (Asr.) (Mag.) penalty under section 27 1D was levied on ground that assessee had received loan of Rs. 70,000 in cash from his wife for investment in acquisition of immovable properties. Wife had given money to husband for prosperity of family only and there was no evidence that amount in question was taken for commercial use. Though revenue considered it loan, but there was no material on record to show that assessee had returned amount received from wife or paid interest thereupon. Assessee was also under bona fide belief that amount in question did not require to be received otherwise than by an account payee cheque or account payee bank draft. Whether considering above and also keeping in view that intention of Legislature was never to punish a party involved in genuine transactions, it had to be held that there was reasonable cause and no penalty was leviable. In the case of Smt. Meera Devi Kumawat v. JCIT [2021] 132 taxmann.com 21 (Jaipur – Trib.) where assessee received substantial amount of cash from her husband for purchase of plot and construction of residential house on it, since repayment of said amount was not mandatory and there was no element of interest, and pooling of family funds was done by assessee due to family requirement and as she did not have any known sources of funds, no penalty could be levied under section 271D for violation of section 269SS. In view of the decision of the jurisdictional Gujarat High Court in the case of Dr. Rajaram L. Akhani supra and Smt. Meera Devi Kumawat v. JCIT [2021] 132 taxmann.com 21 (Jaipur – Trib.) and other case laws cited above, as applicable to the facts of the case, in our view, receipt of ~ 5,21,300/- by the assessee from his mother and brother is concerned, in our view the provisions of section 269SS / 271D of the Act do not stand attracted. There is nothing on record to show that the amount was taken as a loan or deposit by the assessee from his mother/brother and also there is nothing on record to establish that the assessee was under an obligation to repay that the same (with our without interest) and therefore in view of the judicial precedents cited above, in our view provisions of section 269SS and 271D cannot be invoked for the amount of ~ 5,21,300/-. Accordingly, in the instant facts, penalty under section 271D is not liable to be levied.
FULL TEXT OF THE ORDER OF ITAT RAJKOT
This assessee’s appeal for A.Y. 2015-16, arises from order of National Faceless Appeal (NFAC), Delhi dated 08-06-2022, in proceedings under section 250 of the Income Tax Act, 1961; in short “the Act”.
2. The assessee has taken the following grounds of appeal:-
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