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In the instant case, the transaction in question, was not cash transaction. It was merely book entries. The CIT(A) has called Remand Record from the AO, who vide report dated 05.01.1999, confirmed that the transaction in question, by mentioning that no cash was involved.
Mode of acceptance or repayment of loans and deposits ECS, RTGS and NEFT etc. are now proposed to be allowed as permissible mode to accept or repay the deposit or loan specified under section 269SS and 269T respectively. The existing provisions contained in section 269SS of the Act, inter alia, provide that no person shall […]
Accepting/ repaying loans/ advances via journal entries contravenes Section 269SS & 269T but Penalty cannot be levied under section 271D and Section 271E of the Income Tax Act,1961 if transactions are bona fide & genuine.
A plain reading of the Section 269SS indicates that (the import of the above provision is limited) it applies to a transaction where a deposit or a loan is accepted by an assessee, otherwise than by an account payee cheque or an account payee draft.
Hon’ble Delhi High court in the case of Dinesh Jain has held that Penalty u/s. 271E is leviable if a person repays any loan, otherwise, than in accordance with provisions of section 269T. As per section 269T no person shall repay the loan otherwise, than by an account payee cheque or account payee bank draft drawn in the name of the person who has made the loan.
Assessee is a private limited company engaged in the business of manufacturing of Casting. During the course of assessment proceedings AO noticed that Assessee has received cash loans on various days aggregating to Rs 8,89,000/- from Shri Ramusingh Badoria, the Director, of the Assessee.
The Assessing Authority having noticed that the assessee-company had accepted share application money in cash from its directors in violation of provisions of section 269SS, imposed penalty under section 271D and Commissioner (Appeals) upheld penalty order.
By considering the totality of the facts and circumstances of the case, we find no reason to interfere with the impugned order passed by the Tribunal specifically when both the appellate authorities have given concurrent findings. The same is hereby sustained along with the reasons mentioned therein.
Optionally Fully Convertible Debentures (OFCDs) do not fall under and cannot be equated with receipt of ‘loan’ or ‘deposit’ under the provisions of Section 269SS of the IT Act, evidently, no violation of the said Section can be said to have been committed by the assessee to attract penalty u/s 271D.
That argument was not acceptable to the AO and it was held that there was no evidence in support of the contention that the expenditure had actually been incurred directly by those persons. It was held that the assessee had shown the amounts in question as loans/deposits in his books of accounts.
