Gujarat High Court Case Information System
Print
TAXAP/2428/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2428 of 2009
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
NEPTUNE
EQUIPMENT PVT LTD - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 04/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against judgement of tribunal dated 26.6.2009 raising
following questions for our consideration :
“(A)
Whether the Appellate Tribunal is right in law and on facts in
confirming the order passed by CIT(A) in cancelling the penalty of
Rs.40,62,950/- levied u/s. 271D of the I.T. Act ?
(B) Whether
the Appellate Tribunal is right in law and on facts in confirming the
order passed by CIT(A) in canceling the penalty of Rs.54,92,200/-
levied u/s.271E of the I.T. Act?”
As
question suggests, the issue pertains to penalty under Section 271D
and 271E of the Income Tax Act. On the ground that assessee had
breached provisions of Section 269SS and 269T of the Act, such
penalty proceedings were initiated. Assessing Officer as well as
CIT(Appeals) were of the opinion that such penalties were required to
be imposed. Issue was carried in appeal by the assessee before the
tribunal. Tribunal deleted the penalty on the ground that assessee
had shown sufficient cause, that transactions were not in doubt and
that there was no false explanation for unaccounted money. Tribunal
therefore, referring to the decision of Supreme Court in case of
Asst. Director of Inspection (Investigation) v. Kum. A.B. Shanthi
reported in (2002) 255 ITR 258(SC) and that of High Court in case
of Commissioner of Income-tax v. Bhagwati Prasad Bajoria(HUF)
reported in (2003) 263 ITR 487 and invoking provisions of Section
273B of the Act, deleted the penalty.
Having
heard learned counsel for the Revenue and having perused the
documents on record, we are of the opinion that no substantial
question of law is arising. Tribunal found that the cash amounts were
received by the assessee to meet with his urgent requirements of
payment of excise duty and such other reasons. We are of the opinion
that when such cash receipts were explained, exercise of
discretionary powers under Section 273B of the Act would not give
rise to such questions of law.
We
further notice that the tribunal in order recorded that there is no
material to hold that transactions were not genuine. Same were not
even doubted in the assessment proceedings. Persons from whom loans
were accepted were also assessed to income tax and they were
maintaining current account with the assessee company since three to
four years.
In
view of above factual finding, we see no reason to interfere.
Counsel
for the Revenue however, submitted that nature of emergency was not
sufficiently elaborated. We are of the opinion that it would have
been better if further facts were produced in this regard. However,
in view of the totality of facts and circumstances of the case, no
interference is called for. Tax Appeal is therefore, dismissed.
Question
of application of Section 269SS or 269T to transactions through
journal entry is not considered in this appeal.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
Top