Itta/12/2014 Of The Commissioner Of Income Tax(Central) v. Smt. G.venkata Lakshmi

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No.12 of 2014 DATED:31.1.2014 Between:The Commissioner of Income Tax (Central),Hyderabad. … Appellant And M/s. Ramky Infrastructure Ltd.,Hyderabad. ….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No.12 of 2014 Judgment:(per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred against thejudgment and order of the learned Tribunal dated12.7.2013 in relation to the assessment year 2003-04 andis sought to be admitted on the following suggestedquestions of law. 1.Whether on the facts and in the circumstances of thecase and in law, the Hon’ble Income Tax AppellateTribunal is justified in holding that the transactions throughjournal entry do not attract the provisions of Section 269SSand consequently penalty is not leviable under Section271D of the Income Tax Act, 1961 ?case and in law, the Hon’ble Income Tax AppellateTribunal is justified in holding that the transactions throughjournal entry do not attract the provisions of Section 269SSand consequently penalty is not leviable under Section271D of the Income Tax Act, 1961 ? 2.Whether Income Tax Appellate Tribunal is justified inholding that the assessee has accepted the loan only byjournal entries, though in fact the loan was accepted byassessee, as it was paid in cash to the seller of theproperty on behalf of assessee at assessee’sinstanceonly ?holding that the assessee has accepted the loan only byjournal entries, though in fact the loan was accepted byassessee, as it was paid in cash to the seller of theproperty on behalf of assessee at assessee’sinstanceonly ? We have heard Mr. J.V. Prasad, learned counsel forthe appellant, who says that the learned Tribunal has relied on the previous judgment of the assessee’s owncase in relation to assessment year 2005-06, againstwhich, an appeal is proposed to be filed. We have checked up the record from which itappears that the learned Tribunal has not decidedanything new in this matter. Rather, it relied on its ownjudgment on an identical issue rendered in a previouscase on 9.11.2012. It is said that against the said order,an appeal has been filed. But, we do not find any difficultyto decide the issue as a whole as the relevant findings ofthe previous judgment have been extracted and there isno dispute that the same is accurate or incorrect. Hence,we can safely rely on the same. We have read the reasoning rendered in theprevious judgment. It appears that the assesseechallenged the penalty proceedings initiated underSection 271D of the Income Tax Act, 1961 on the groundof illegal borrowings in contravention of Section 269SS ofthe Act. The learned Tribunal on an earlier occasionfound that there is no proof of receipt of such loan from therecords and they were only found to be journal entries.The learned Tribunal, in our view, correctly observed thatrelying on an entry in the journal, no penalty proceedingscan be initiated. Hence, it was sent for clarificationwhether actual flow of money did take place. Therefore,the matter was remanded and no decision was taken onmerit. We find that the learned Tribunal has correctlydecided the same. Hence, we do not find any reason toadmit this matter for settling the issue. The appeal is dismissed. __________________ K.J. SENGUPTA, CJ _________________ SANJAY KUMAR, J 31.1.2014 PNB