Addl. CIT, R-V(C), Kolkata, Kolkata V. M/s. J.A. Land & Housing Development India Ltd., Kolkata

ITA 1116/KOL/2011

• Counselvise Citation: 111623514 RSA 2011
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Section: 27

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [ . .. . . .. . , ! !! !. . . . '#$! '#$! '#$! '#$!, ,, , ] [BEFORE SHRI S. V. MEHROTR A, AM & SHRI N. VIJAYA KUMARAN, JM] % % % % / I.T.A NO. 1116/KOL/2011 &!' () &!' () &!' () &!' ()/ // / ASSESSMENT YEAR : 2004-05 ADDL. C.I.T., R-V(C) -VS.- M/S. J.A. LAND & HOUSING DEVELOPMENT INDIA LIMITED KOLKATA KOLKATA [PAN : AABCJ 3753 D [ +, +, +, +, /APPELLANT ] ]] ] [ ./+, ./+, ./+, ./+,/ // / RESPONDENT ] ] ] ] % % % % / I.T.A NOS. 1117, 1118 & 1140/KOL/ 2011 &!' () &!' () &!' () &!' ()/ // / ASSESSMENT YEARS : 2005-06, 2006-07 & 2007-08 ADDL. C.I.T., R-V(C) -VS.- M/S. J.A.M. CHEMICAL WORKS LIMITED KOLKATA KOLKATA [PAN : AABCJ 5993 R] [ +, +, +, +, /APPELLANT ] ]] ] [ ./+, ./+, ./+, ./+,/ // / RESPONDENT ] ] ] ] +, +, +, +, / FOR THE APPELLANT : SHRI P. P. SARKAR ./+, ./+, ./+, ./+, / FOR THE RESPONDENT : NONE $!0 1 2 $!0 1 2 $!0 1 2 $!0 1 2 /DATE OF HEARING : 02.01.2012 3( 1 2 3( 1 2 3( 1 2 3( 1 2 /DATE OF PRONOUNCEMENT : 02.01.2012 4 /ORDER ! !! !. . . . '# $! '# $! '# $! '# $! , PER BENCH ALL THE FOUR APPEALS ARE BY THE DEPARTMENT FOR ASSE SSMENT YEARS 2004-05, 2005-06, 2006- 07 & 2007-08 DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I II, KOLKATA DATED 23.06.2011. THE FIRST THREE APPEALS I.E. ITA NOS. 1116 TO 1118/KOL/2011 A RE AGAINST DELETION OF PENALTY LEVIED UNDER SECTION 271D AND THE LAST ONE ALSO I.E. ITA NO. 114 0/KOL/2011 RELATES TO PENALTY LEVIED UNDER SECTION 271E. ALL THE FOUR APPEALS ARE HEARD TOGETH ER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. [ ITA NOS. 1116 TO 1118 & 1140/KOL/2011] 2 2. INSPITE OF SUFFICIENT NOTICE NONE APPEARED ON BE HALF OF THE ASSESSEE. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE, WE PROCEED TO DECIDE T HE APPEALS EX PARTE ASSESSEE BY CONSIDERING THE STATEMENT OF FACTS FILED BY THE ASSESSEE BEFORE THE 1 ST APPELLATE AUTHORITY. FOR THE PURPOSE OF DISCUSSION, WE WILL TAKE ITA NO.1116/KOL/2011 FOR A SSESSMENT YEAR 2004-05. 3. ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 2 71D FOR THE ASSESSMENT YEAR 2004-05 IN RESPECT OF M/S. J.A. LAND & HOUSING DEV. INDIA LIMI TED AND ALSO IN ASSESSMENT YEARS 2005-06 & 2006-07, AS WELL AS UNDER SECTION 271E OF THE INCOM E TAX ACT FOR THE ASSESSMENT YEAR 2007-08 IN THE CASE OF M/S. J.A.M. CHEMICAL WORKS LIMITED. ASS ESSING OFFICER WAS OF THE VIEW THAT VIOLATION OF SECTION 269SS WHICH DEFINES LOAN OR D EPOSIT & SECTION 269T DEFINES LOAN OR DEPOSIT AND THE COMMON WORD LOAN MEANS LENDING A SUM OF MONEY BY ONE PARTY TO ANOTHER UPON AGREEMENT TO REPAY. HENCE, ASSESSING OFFICER W AS OF THE VIEW THAT THOUGH IN THE COMPANIES ACT DEPOSIT DOES NOT INCLUDE SHARE APPLICATION MO NEY WHICH IS GIVEN TO A COMPANY BY AN APPLICANT FOR ALLOTMENT OF SHARES. THE FACT THAT UN DER THE GIVEN SET OF FACTS, ACCORDING TO ASSESSING OFFICER, THE AMOUNT SO DEPOSITED WITH THE ASSESSEE- COMPANY IN THE NAME OF SHARE APPLICATION MONEY ATTRACTS SECTIONS 269SS & 269T. IN OTHER WOR DS, THESE FINANCIAL TRANSACTIONS SHOULD BE THROUGH BANKING CHANNELS BY ABIDING CASH TRANSACTIO NS. THEREFORE, ASSESSING OFFICER WAS OF THE VIEW THAT ASSESSEE HAS VIOLATED SECTION 269SS IN IT A NOS. 1116 TO 1118/KOL/2011 AND THERE IS VIOLATION OF SECTION 269T IN RESPECT OF ITA NO.1140 /KOL/2011. HE, THEREFORE, LEVIED PENALTY. ON APPEAL TO THE LD. CIT(A), LD. CIT(A) FOUND THAT I.T .A.T., KOLKATA BENCHES, C BENCH IN ITA NOS. 141 & 142/KOL/2011 HAVE DECIDED THE ISSUE VIDE ORDER DATED 19.04.2011 BY FOLLOWING THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE O F CIT VS. RUGMINI RAM RAGHAV SPINNERS (P) LTD. [2008] 304 ITR 417 (MAD.) THAT THE SHARE APPLI CATION MONEY AND REPAYMENT THEREOF WILL NOT VIOLATE SECTIONS 269SS & 269T OF THE ACT WHICH ATTR ACTS LEVY OF PENALTY UNDER SECTION 271D & 271E OF THE ACT. 4. AFTER CONSIDERING THE ARGUMENT OF LD. DEPARTMENT AL REPRESENTATIVE WHO RELIED DECISION OF HONBLE JHARKHAND HIGH COURT IN THE CASE OF BHALOTI A ENGINEERING WORKS (P) LTD. VS. CIT [2005] 275 ITR 399 (JHARKHAND). HOWEVER, WE ARE UNABLE TO AGREE WITH THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE AS THE TRIBUNAL HAS ALR EADY DECIDED THE ISSUE IN OTHER GROUP CONCERN CITED (SUPRA) BY FOLLOWING THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF RUGMINI RAM RAGHAV SPINNERS (P) LTD. (SUPRA). HENCE, WE AGR EE WITH THE FINDINGS OF LD. CIT(A) WHO [ ITA NOS. 1116 TO 1118 & 1140/KOL/2011] 3 RIGHTLY DELETED THE PENALTY LEVIED UNDER SECTION 27 1D IN ASSESSMENT YEARS 2004-05, 2005-06 & 2006-07 AND IN ASSESSMENT YEAR 2007-08 DELETED THE PENALTY UNDER SECTION 271E OF THE ACT. 5. IN THE RESULT, ALL THE FOUR APPEALS OF THE DEPAR TMENT ARE DISMISSED. 4 4 4 4 $ $ $ $ 5 $! 6 7 5 $! 6 7 5 $! 6 7 5 $! 6 7 ORDER PRONOUNCED IN THE OPEN COURT ON 02.01.2011. SD/- SD/- [ . .. . . .. . , ,, , ] [ ! !! !. .. . '# '# '# '# $! $! $! $!, ,, , ] [ S. V. MEHROTRA ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER [ 2 2 2 2 ] D ATED : 2ND JANUARY, 2012. 4 1 .&&' 8'(/ COPY OF THE ORDER FORWARDED TO: 1. +, /APPELLANT : ADDL. C.I.T. R-V(C), 5 TH FLOOR, 18, RABINDRA SARANI, KOLKATA-700 001. 2 . ./+, / RESPONDENT : M/S. J.A. LAND & HOUSING DEV. INDIA LTD. & M/S. J.A.M. CHEMICAL WORKS LTD., 79/3A, SATYAN ROY ROAD, BEHALA, KOLKATA-700 03 4. 3. &4 - ! / CIT, 4. &4! ()/ CIT(A), KOLKATA. 5. &6 .&!/ DR, KOLKATA BENCHES, KOLKATA [/' .&/ TRUE COPY] 4!$/ BY ORDER, # /ASSTT REGISTRAR [KKC AB &!C# &D /SR.PS]