The ITO, Ward-1(3),, Surat v. M/s. Joy En Joy Amusement Ltd.,, Surat

ITA 1859/AHD/2010 | 2006-2007
Pronouncement Date: 17-09-2010 | Result: Dismissed

Appeal Details

RSA Number 185920514 RSA 2010
Bench Ahmedabad
Appeal Number ITA 1859/AHD/2010
Duration Of Justice 3 month(s) 17 day(s)
Appellant The ITO, Ward-1(3),, Surat
Respondent M/s. Joy En Joy Amusement Ltd.,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 17-09-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 17-09-2010
Assessment Year 2006-2007
Appeal Filed On 31-05-2010
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND D.C.AGRAWAL A M INCOME-TAX OFFICER WARD 1(3) SURAT. VS. M/S JOY EN JOY AMUSEMENT LTD. 5 KRISHIMANGAL RING ROAD SURAT. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI BHUBNESH KULSHRESTHA DR RESPONDENT BY:- NONE O R D E R PER D. C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE RAISING FOL LOWING GROUND:- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN - A) DELETING THE DISALLOWANCE MADE BY THE AO OF RS.14 5 0 000/- U/S 68 IN RESPECT OF SHARE APPLICATION MONEY. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AN ADD ITION OF RS.14 50 000/- ON ACCOUNT OF SHARE APPLICATION MONE Y RECEIVED BY THE ASSESSEE COMPANY AND TREATED AS UNEXPLAINED BY THE AO WHO MADE THIS ADDITION UNDER SECTION 68. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS AO VERIFIED THE SHARE APPLICATION MONEY AND SHARE A PPLICANTS AND FOUND THAT IN THE FOLLOWING CASES CLAIM OF SHARE APPLICAT ION MONEY WAS NOT PROVED:- ITA NO.1859/AHD/2010 ASST. YEAR :2006-07 ITA NO.1859/AHD/2010 ASST. YEAR 2006-07 2 SL. NO. NAME AMOUNT(RS.) 1. SHRI DHARMESH Y. PARIKH (ADDL.AMOUNT) 50000 2 SHRI SUMANBHAI C. PATEL 250000 3 SHRI NITISH R. GAMIT 200000 4 SHRI RAJESH S. PATEL 100000 5 SHRI HASMUKHBHAI T. PATEL 400000 6 SMT. MADHUBEN K. DESAI 450000 7 SHRI KANTILAL G. DESAI 350000 8 SHRI BHARAT R. PATEL 200000 9 SHRI RAMESHBHAI J. PATEL 200000 10 SHRI BALUBHAI M. PATEL 150000 11 SHRI RAJESHBHAI N. PATEL 150000 12 SHRI KETANBHAI N. PATEL 300000 13 SHRI CHANDUBHAI D. PATEL 200000 14 SHRI PARESHBHAI R. PATEL 300000 15 SHRI MAHULBHAI S. PATEL 75000 TOTAL 3625000 ACCORDING TO THE AO CLAIM OF THE ASSESSEE THAT ABO VE 15 PARTIES WERE NOT NEW AND WERE THOSE TO WHOM UNSECURED LOANS WERE RET URNED WAS NOT FOUND CORRECT. SOME OF THE ABOVE PARTIES DID NOT HA VE PAN AND NOTHING WAS PRODUCED BY THE ASSESSEE COMPANY TO PROVE THEIR IDENTITIES OR CAPACITY TO ADVANCE MONEY TO THE ASSESSEE. THE AO R EQUIRED THE ASSESSEE TO EXPLAIN ABOVE 15 CASES IN TERMS OF SECTION 68 BU T NO SATISFACTORY REPLY WAS GIVEN AND THEREFORE THE AO MADE THE ADDITION UNDER SECTION 68. 3. THE LD. CIT(A) FOUND THAT ASSESSEE HAS FILED VAR IOUS DETAILS BY THESE SIX PARTIES AS UNDER :- SL. NO. NAME AMOUNT (RS.) DOCUMENTS SUBMITTED. 1. SHRI HASMUKHBHAI T. PATEL 4 00 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. CERTIFICATE FROM SHREE SAYAN VIBHAG SAHAKARI KHAND UDYOG MANDLI LTD. SHOWING AGRICULTURAL INCOME. ITA NO.1859/AHD/2010 ASST. YEAR 2006-07 3 2. SHRI BHARAT R. PATEL 2 00 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF INCOME-TAX RETURN FILED ALONG WITH COMPUTATION OF INCOME. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. HOWEVER SOURCE OF CASH DEPOSITS IN THE BANK NOT PRODUCED. 3. SHRI RAMESHBHAI J. PATEL 2 00 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF INCOME-TAX RETURN FILED ALONG WITH COMPUTATION OF INCOME. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. HOWEVER SOURCE OF CASH DEPOSITS IN THE BANK NOT PRODUCED. 4 SHRI BALUBHAI M. PATEL 1 50 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. COPY OF ACCOUNT SHOWING AGRICULTURAL INCOME FROM KAMREJ VIBHAG SAHKHARI KHAND UDYOG MANDLI LTD. 5 SHRI CHANDUBHAI D. PATEL 2 00 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. CERTIFICATE FROM SHREE SAYAN VIBHAG SAHAKARI KHAND UDYOG MANDLI LTD. AND COPY OF 7/12 & 8A FOR PROVING AGRICULTURAL INCOME. 6 SHRI PARESHBHAI R. PATEL 3 00 000 CONFIRMATION LETTER AND COPY OF ACCOUNT. COPY OF BANK ACCOUNT SHOWING THE AMOUNT GIVEN TO THE COMPANY. COPY OF A/C FROM SHREE KHEDUT SAHKARI KHAND UDYOG MANDLI LTD. BABEN-BARDOLI AND COPY OF 7/12 FOR PROVING AGRICULTURAL INCOME. TOTAL 14 50 000 THE LD. CIT(A) OBSERVED THAT NEW SHARE APPLICATION MONEY WAS ONLY OF RS.14 50 000/- THE REST WAS NOT RECEIVED DURING THI S YEAR. EVEN IN RESPECT OF SUM OF RS. 14 50 000/- THE ASSESSEE HAS DISCHAR GED THE ONUS BY FILING CONFIRMATION BANK STATEMENT AND COPY OF SHARE APP LICATION FORMS . FOLLOWING THE DECISION OF HON. SUPREME COURT IN LOV ELY EXPORTS (P) LTD. 216 CTR 195(SC) HE OBSERVED THAT NO ADDITION CAN BE MADE. ON THIS BASIS HE TREATED ENTIRE SHARE APPLICATION MONEY AS EXPLAINED. NOW THE ITA NO.1859/AHD/2010 ASST. YEAR 2006-07 4 REVENUE HAS FILED APPEAL ONLY IN RESPECT OF 14 50 0 00/- WHEREAS AO HAS MADE ADDITION OF RS.39 33 000/- UNDER THIS HEAD. 4. THE LD. DR SUBMITTED THAT ALL THE MONEY WAS RECE IVED IN CASH WHICH WAS DEPOSITED IN THE ACCOUNT OF SHARE APPLICA NTS AND WAS TRANSFERRED TO THE ASSESSEE AS SHARE APPLICATION MO NEY. THEREFORE THERE IS A CLEAR DOUBT THAT SHARE APPLICATION IS BOGUS. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. AFTER H EARING THE LD. DR WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). IT IS BECAUSE IF DEPARTMENT IS READY TO ACCEPT THE CLAIM IN RESPECT OF OTHER SUM OUT OF RS.39 33 000/- THEN THERE IS NO REASON TO TAKE A DI FFERENT VIEW IN RESPECT OF RS.14 50 000/-. THE ENTIRE SUM STOOD AT THE SAME FOOTING. EVEN OTHERWISE WE NOTICE IN RESPECT OF SHARE APPLICATION MONEY OF RS.14 50 000/- THAT ALL THE SHARE APPLICANTS HAVE FILED CONFIRMATIONS AND BANK STATEMENT AND CERTAIN CERTIFICATES SHOWING SOU RCE OF MONEY. THUS IDENTITY OF SHARE APPLICANTS IS ESTABLISHED AND THE Y HAVE ADMITTED TO HAVE PAID THE MONEY TO THE ASSESSEE AS SHARE APPLICATION MONEY. EVEN IF CASH DEPOSIT IN THEIR BANK ACCOUNT IS UNEXPLAINED IT IS FOR THEM TO PAY THE TAX ON SUCH CASH DEPOSIT. THE DECISION OF HON. SUPREME COURT IN LOVELY EXPORTS (P) LTD. (SUPRA) IS SQUARELY APPLICABLE IN THIS CASE. ONCE IDENTITY OF THE SHARE APPLICANT IS PROVED AND HE ADMITTED TO HAVE PAID THE MONEY TO THE ASSESSEE COMPANY THEN ONUS IS DISCHARGED AND IT IS FOR THE REVENUE TO PROVE THAT WHAT IS APPARENT IS NOT REAL. IT WAS IN FACT MONEY OF THE ASSESSEE COMPANY NOT OF SOMEBODY ELSE OR NOT THAT O F THE SHARE APPLICANTS. HAVING NO CONTRARY MATERIAL ON RECORD WE UPHOLD THE ORDER OF LD. CIT(A) WHICH IS BASED ON THE DECISION OF APEX C OURT. ACCORDINGLY APPEAL FILED BY THE REVENUE IS DISMISSED. ITA NO.1859/AHD/2010 ASST. YEAR 2006-07 5 6. IN THE RESULT APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 17/9/10. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD DATED : 17/9/10. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 27/8/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..