JUD Cement Limited, Shillong V. Assistant Commissioner of Income, Circle - Shillong , Shillong

ITA 139/GTY/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 5718 (ITAT-GUWAHATI)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return; Set aside
• Section: 68; 142(1); 143(2)

Judgement Text

आयकर अपील य अ धकरण, ‘GAUHATI पीठ , कोलकाता आभासी मा यम से IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH VIRTUAL HEARING AT KOLKATA सम : ी राजपाल यादव, उपा य ,कोलकाता े (एवं ी मनीष बोरड, लेखा सद य Before: SHRI RAJPAL YADAV, VICE PRESIDENT (KZ) and SHRI MANISH BORAD, ACCOUNTANT MEMBER आयकर अपील सं.य / ITA No.139/GAU/2019 नधा रण वष / Assessment Year:2013-14 JUD CEMENTS LIMITED C/o Hanumanbux, Umadutt, Police Bazar, Shillong, Meghalaya- 793001 बनाम / V/s . ACIT, Circle- Shillong,Aaykar Bhawan, M.G Road, Shillong,Meghalaya- 793001 PAN: AABOJ7312C अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant ShriJay Prakash Gupta, FCA यथ क ओर से/By Respondent Shri N.T Sherpa, JCIT, Ld.SR-DR स ु नवाई क तार ख/Date of Hearing 08-09-2022 घोषणा क तार ख/ Date of Pronouncement 19-09-2022 आदेश /O R D E R PER MANISH BORAD, AM. The present appeal has been preferred by the assessee against the order dated 31-01-2019 of the Ld. Commissioner of Income-tax (Appeals), ITA No.139/Gau/2019 AY 2013-14 Jud Cements Ltd . Page 2 [hereinafter referred to as ‘CIT(A)’], Shillong [hereinafter referred to as ‘CIT(A)’] for the assessment year 2013-14. 2. The assessee has raised the following grounds:- 1. That the learned C.LT. (Appeals) erred in law as well as on facts in confirming the addition of Rs.89,00,000/- made by the assessing officer on account of share application money. 2. That the learned C.LT. (Appeals) erred in law as well as on facts in confirming receipt of Rs.32,61,927/- as receipt not eligible for deduction under section 80 IE of the Income Tax Act 1961. 3. That the appellant craves leave to submit any other ground/s on or before the hearing of the appeal. 3. Brief facts of the case as culled out from records are that the assessee is a limited company. It is engaged in the business of manufacturing of clinker and cement. Loss of Rs.12,84,55,691/- declared in the revised return filed on 30-11-2013 for the AY 2013-14. Original e-return was filed on 27-09-2013. Case selected for scrutiny under CASS followed by serving of notices issued u/s. 143(2) and 142(1) of the Act. After considering the submissions of the assessee the assessment was concluded on 06-02-2016 making various additions including addition u/s. 68 of the Act for unexplained share application money of Rs.89 lakhs and denial of deduction u/s. 80IE of the Act at Rs. 10,58,332/-. 4. Aggrieved, the assessee preferred an appeal before the ld. CIT(A) challenging the impugned additions made by the ld. AO, but partly succeeded. 5. Aggrieved, now the assessee is now in appeal before this Tribunal raising the aforementioned grounds of appeal. 6. At the outset, the Ld. Counsel for the assessee requested before us for not pressing ground no.2 challenging the finding of the ld. CIT(A) confirming the action of the ld.AO not allowing the deduction u/s. 80IE of the Act of Rs.32,61,927/-. Since this ground is not pressed by the assessee, we dismiss ground no. 2 raised by the assessee. ITA No.139/Gau/2019 AY 2013-14 Jud Cements Ltd . Page 3 7. As regard to ground no. 1, the Ld. Counsel for the assessee vehemently argued referring to the submissions made before the lower authorities and paper book dt.8.11.2021 running into 42 pages containing various details. The Ld. Counsel for the assessee also submitted that as regards the addition of Rs.89 lakhs is concerned, Rs. 50 lakhs was not received during the year. It was received in preceding year as thus, no addition is called for and remaining amount of Rs. 39 lakhs is received from the director, Mr. Adarsh Kr. Jhunjhunwala through banking channel. 8. Per contra, the Ld. Departmental Representative vehemently argued supporting the orders of the lower authorities. 9. We have heard the rival contentions and perused the material placed before us. The sole grievance of the assessee is with regard to ground no. 1 challenging the addition of Rs. 89 lakhs made u/s. 68 of the Act for unexplained share application money.. We observe that in the balance sheet Rs.89 lakhs was shown as share application money pending for allotment in the name of Mr. Adarsh Kr. Jhunjhunwala. Further the ld. AO also observed that since it was not reflected in the books of Mr. Adarsh Kr. Jhunjhunwala, the same was unexplained. We, however, on perusal of the P/B and also the bank statement Mr. Adarsh Kr. Jhunjhunwala, notice that Mr. Adarsh Kr. Jhunjhunwala is the director as well as shareholder of the assessee company holding 16.54% equity shares. We also note that out of the alleged addition of Rs.89 lakhs, Rs. 50 lakhs was received on 25-07-2011 through account payee cheque of SBI from Mr. Adarsh Kr. Jhunjhunwala during FY 2011-12 relevant to AY 2012-13. Since this amount was not received during the year, the addition u/s. 68 of the Act for sum of Rs. 50 lakhs is uncalled for. 10. As far as remaining amount of Rs.39 lakhs is concerned, we notice that the assessee received the sum of Rs. 39 lakhs through banking channel. Identity and genuineness of the transaction could not be disputed as alleged ITA No.139/Gau/2019 AY 2013-14 Jud Cements Ltd . Page 4 cash creditor, Mr. Adarsh Kr. Jhunjhunwala is director as well as shareholder of the assessee company. The creditworthiness is further proved from the fact that for issuing of cheque of SBI of Rs. 39 lakhs to the assessee company, Mr. Adarsh Kr. Jhunjhunwala took loan of Rs.41 lakhs from Sibren Sumer, resident of Meghalaya, which thus explains the source of share application money of Rs. 39 lakhs given to assessee company. Though the ld. DR has stated that documents were not filed before the lower authorities, we, however considering the fact that the alleged cash creditor, Mr. Adarsh Kr. Jhunjhunwala is a director/shareholder of the assessee company and bank statement clearly shows such transaction as well as source of fund used/utilized for the purpose of share application money, are of the view that the assessee has successfully/satisfactorily explained the source of sum of Rs.39 lacs and therefore, the addition made u/s. 68 of the Act is uncalled for. We, therefore, set aside the finding of ld. CIT(A) and delete the addition of Rs. 89 lakhs made u/s. 68 of the Act. Ground no. 1 of assessee’s appeal is allowed. 11. Ground no. 3 is general in nature, which needs no adjudication. 12. In the result, the appeal of the assessee is partly allowed. Order pronounced in open court on 19-09-2022 आदेश ख ु ले यायपीठ म दनांक 19-09-2022 को उ घो षत। Sd/- Sd/- ( राजपाल यादव, उपा य )कोलकाता े ( ( मनीष बोरड, लेखा सद य) (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT (KZ) ACCOUNTANT MEMBER Dated/ दनांकः-19/09/2022 Kolkata/ कोलकाता ITA No.139/Gau/2019 AY 2013-14 Jud Cements Ltd . Page 5 **PP/Sr.PS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. अपीलाथ /Appellant- JUD CEMENTS LIMITED, C/o Hanumanbux, Umadutt, Police Bazar,Shillong, Meghalaya-793001. 2. यथ /Respondent-ACIT, Circle-Shillong,Aaykar Bhawan, M.G Road, Shillong,Meghalaya-793001 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण / DR, ITAT, Guwahati 6. गाड फाइल / Guard file. /True Copy/ By order/आदेश से, सहायक पंजीकार आयकर अपील य अ धकरण,कोलकाता ।