Param Polypack Pvt.Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 803/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60533 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: UERVASHI SHODHAN
• Section: 68

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH , , , , , , , , !' !' !' !', , , , #$ #$ #$ #$ # % # % # % # % BEFORE S/SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.803/AHD/2012 [ASSTT.YEAR : 2003-2004] M/S.PARAM POLY PACK PVT. LTD. C/O. MANISH G SHAH 38/101, GAUTAMNAGAR SOCIETY RACE COURSE CIRCLE VADODARA. PAN : AABCP 7744 A /VS. ACIT, CIR.4 BARODA. ( (( ('( '( '( '( / APPELLANT) ( (( ()*'( )*'( )*'( )*'( / RESPONDENT) + , - #/ ASSESSEE BY : MS.UERVASHI SHODHAN / , - #/ REVENUE BY : SHRI B.L. YADAV 0 , '$/ DATE OF HEARING : 6 TH JUNE, 2012 123 , '$/ DATE OF PRONOUNCEMENT : 22-6-2012 #4 / O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-III, BARODA DATED 27.02.2012 FOR THE A.Y.2003-2004. TH E ASSESSEE IS ITA NO.803/AHD/2012 -2- AGGRIEVED BY THE ACTION OF THE CIT(A) IN CONFIRMING PENALTY OF RS.13,93,560/- UNDER SECTION 271(1)(C) OF THE I.T.A CT. 2. THE LEARNED COUNSEL FOR THE ASSESSEE, AT OUTSET, SUBMITTED THAT THE ASSESSEE HAD CHALLENGED BEFORE THE ITAT, AHMEDA BAD BENCHES AGAINST QUANTUM ADDITION UNDER SECTION 68 IN RESPEC T OF SHARE APPLICATION MONEY/- IN ITA NO.506, 507, 508 & 509/A HD/2009 FOR A.Y.2002-03, 2003-2004, 2004-05 AND 2005-2006, AGAI NST WHICH, THE REVENUE HAS IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT, WHICH IS UNDER CHALLENGE IN THIS APPEAL. IT IS SUB MITTED THAT THE ITAT VIDE ITS ORDER DATED 31.05.2012 IN THE ABOVE APPEAL HAS DELETED THE ADDITION OF RS.37,00,000/- MADE BY THE AO AND CONFI RMED BY THE LEARNED CIT(A) UNDER SECTION 68 FOR INCREASE IN SHA RE APPLICATION MONEY DURING THE YEAR. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD A COPY OF THE ABOVE TRIBUNAL ORDER . IT IS THEREFORE SUBMITTED THAT IN VIEW OF THE ABOVE ORDER OF THE TR IBUNAL DELETING THE ADDITION MADE BY THE LOWER AUTHORITIES, THE PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE CIT(A) WILL NOT SURVIVE, AN D THEREFORE THE SAME MAY BE CANCELLED. THE LEARNED DR HAS NOT CO NTROVERTED TO THIS SUBMISSION OF THE ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDER OF THE ITAT IN THE ASSESSEES QUANTUM APPEAL REFERRED TO A BOVE. THE ITAT, AHMEDABAD, BENCH-D HAS DELETED THE ADDITION VIDE THE ORDER CITED SUPRA AGAINST WHICH THE IMPUGNED PENALTY UNDER SECT ION 271(1)(C) WAS IMPOSED BY THE AO AND THE CIT(A) BY HOLDING AS UNDER: 2.1.4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, P ERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE OR DERS OF AUTHORITIES BELOW AND THE JUDGMENTS CITED BY THE LD . A.R. WE ITA NO.803/AHD/2012 -3- FIND THAT IN THE ORDER OF LD. CTT(A) FOR THE PRESEN T YEAR, HE HAS FOLLOWED THE ORDER OF HIS PREDECESSOR IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04. THE ORDER OF LD. CTT(A ) IN THAT YEAR IS DATED 29.08.2008 AND THE SAME IS WITHOUT CO NSIDERING THIS JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF LOVELY EXPORTS (SUPRA) AND ALSO IN THE CASE OF DIVI NE LEASING AND FINANCE LTD. (SUPRA). IN THESE TWO CASES, IT WA S HELD BY THE HONBLE APEX COURT THAT IF THE SHARE APPLICATION MO NEY IS RECEIVED BY THE ASSESSEE COMPANY FROM THE ALLEGED B OGUS SHARE HOLDERS, WHOSE NAMES ARE GIVEN TO THE A.O. THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSES SMENTS IN ACCORDANCE WITH LAW BUT NO ADDITION CAN BE MADE IN THE HANDS OF THE COMPANY WHO HAS RECEIVED THE SHARE APPLICATI ON MONEY. IN THE PRESENT CASE, THE ASSESSEE HAS PROVIDED TO T HE A.O. NOT ONLY THE NAMES OF THE SHAREHOLDERS BUT THEIR ADDRES SES ALONG WITH PAN AND BANK STATEMENTS ETC. HENCE, THE ASSESS EE HAS DISCHARGED ITS PRIMARY ONUS AND, THEREFORE, IN THE LIGHT OF THESE TWO JUDGMENTS OF HONBLE APEX COURT, THE ADDITION M ADE BY THE A.O. WITH REGARD TO RECEIPT OF SHARE APPLICATION MO NEY CANNOT BE SUSTAINED. THE SAME IS DELETED. GROUND NO.1 IS A LLOWED. XXXX 5.1.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT FROM ALL THE THREE LOAN CREDITORS, ASSESSEE HAS FURNISHED LOAN CONFIRMATION CONTAINING ADDRESS AND PAN AND ALSO SUBMITTED BANK STATEMENTS OF THESE LOAN CREDITORS AND THERE IS NO CASH DEPOSIT IN THES E BANK ACCOUNTS OF THE LOAN CREDITORS IMMEDIATELY BEFORE T HE ISSUE OF CONCERNED CHEQUES TO THE ASSESSEE. LD. CTT(A) HAS C ONFIRMED THIS ADDITION SIMPLY ON THE BASIS OF THE ORDER OF H IS PREDECESSOR IN ASSESSMENT YEAR 2003-04 WHEREAS IN THE PRESENT Y EAR, THE ASSESSEE HAS FULFILLED ALL THE THREE INGREDIENTS OF SECTION 68 I.E. IDENTITY AND CREDITWORTHINESS OF LOAN CREDITORS AND GENUINENESS OF TRANSACTION. NO ADVERSE MATERIAL HAS BEEN BROUGH T OUT ON RECORD BY THE A.O. IN SPITE OF HAVING COMPLETE ADDR ESSES, PAN, CONFIRMATION AND BANK STATEMENTS OF THE LOAN CREDIT ORS. IN OUR CONSIDERED OPINION, IN THE FACTS OF THE PRESENT CAS E THIS ADDITION MADE BY THE A.O. U/S 68 IS NOT JUSTIFIED. WE, THERE FORE, DELETE THE SAME. ITA NO.803/AHD/2012 -4- IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE I SSUE OF QUANTUM ADDITION OF RS.37,00,000/- MADE BY THE AO AND CONFI RMED BY THE LEARNED CIT(A) UNDER SECTION 68 FOR INCREASE IN SHA RE APPLICATION MONEY DURING THE YEAR HAS BEEN DELETED BY THE ITAT VIDE ORDER DATED 31-05-2012 (SUPRA), THE PENALTY UNDER SECTION 271(1 )(C) OF THE ACT DOES NOT SURVIVE IN THIS CASE. THE SAME IS ACCORDI NGLY CANCELLED. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( / MUKUL KR. SHRAWAT) ( /JUDICIAL MEMBER ( !' !' !' !' / ANIL CHATURVEDI) #$ #$ #$ #$ /ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD