Sec 269SS and Sec 269T of the Act which attract penalty under sec 271 is not violated by share application money and repayment thereof

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH : KOLKATA

[Before Shri S. V. Mehrotra, AM & Shri N. Vijaya Kumaran, JM]

I.T.A No. 1116/Kol/2011

Assessment Year : 2004-05

Addl. C.I.T., R-V(C)

Kolkata

[Appellant]

-vs.-

M/s. J.A. Land & Housing Development India Limited

Kolkata [PAN: AABCJ 3753 D]

 [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)

Kolkata

[Appellant]

-vs-.

 M/s. J.A.M. Chemical Works Limited

Kolkata [PAN: AABCJ 5993 R]

 [Respondent]

For the Appellant: Shri P. P. Sarkar

For the Respondent: None

Date of Hearing: 02.01.2012

Date of Pronouncement: 02.01.2012

ORDER

PER BENCH

All the four appeals are by the Department for assessment years 2004-05, 2005-06, 2006- 07 & 2007-08 directed against the order of Ld. CIT(A)-III, Kolkata dated 23.06.2011. The first three appeals i.e. ITA Nos. 1116 to 1118/Kol/2011 are against deletion of penalty levied under section 271D and the last one also i.e. ITA No. 1140/Kol/2011 relates to penalty levied under section 271E. All the four appeals are heard together and disposed of by this common order for the sake of convenience.

2.Inspite of sufficient notice none appeared on behalf of the assessee. After hearing the Ld. Departmental Representative, we proceed to decide the appeals ex parte assessee by considering the statement of facts filed by the assessee before the 1st Appellate Authority. For the purpose of

discussion, we will take ITA No.1116/Kol/2011 for assessment year 2004-05.

3.Assessing Officer levied penalty under section 271D for the assessment year 2004-05 in respect of M/s. J.A. Land & Housing Dev. India Limited and also in assessment years 2005-06 &

2006-07, as well as under section 271E of the Income Tax Act for the assessment year 2007-08 in the case of M/s. J.A.M. Chemical Works Limited. Assessing Officer was of the view that violation of Section 269SS which defines ‘loan or deposit’ & 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 was of the view that though in the Companies Act “deposit” does not include share application money which is given to a Company by an applicant for allotment of shares. The fact that under 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 words, these financial transactions should be through banking channels by abiding cash transactions. Therefore, Assessing Officer was of the view that assessee has violated Section 269SS in ITA 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 Hon’ble Madras High Court in the case of CIT vs. Rugmini Ram Raghav Spinners (P) Ltd. [2008] 304 ITR 417 (Mad.) that the share application money and repayment thereof will not violate Sections 269SS & 269T of the Act which attracts levy of penalty under section 271D & 271E of the Act.

4.After considering the argument of Ld. Departmental Representative who relied decision of Hon’ble Jharkhand High Court in the case of Bhalotia 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 already decided the issue in other group concern cited (supra) by following the decision of Hon’ble Madras High Court in the case of Rugmini Ram Raghav Spinners (P) Ltd. (supra). Hence, we agree with the findings of Ld. CIT(A) rightly deleted the penalty levied under section 271D 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 Department are dismissed.

Order pronounced in the open Court on 02.01.2011.

                                          Sd/ -                                                 Sd/-

                               [ S. V. Mehrotra ]                       [ N. Vijayakumaran ]

                            Accountant Member                         Judicial Member

Dated : 2nd January, 2012.

Copy of the order forwarded to:

1. Appellant: Addl. C.I.T. R-V(c), 5th 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-700 034.

3.CIT,

4.CIT(A), Kolkata.

5.DR, Kolkata Benches, Kolkata

[True Copy]

                                                                                                                                     By order,

Asstt Registrar

[kkc /Sr.PS]