ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(2), HYDERABAD vs. M/S.PVK ENGINEERS PRIVATE LIMITED, HYDERABAD, HYDERABAD

O R D E R PER L.P. SAHU, A.M.: This appeal filed by the Revenue is directed against CIT(A) - 4, Hyderabad’s order dated 12/09/2017 for AY 2013-14 involving proceedings u/s 143(3) of the Income Tax Act, 1961 ; in short “the Act”.

action of ld. CIT(A) in deleting the disallowance made by the AO u/s 14A rwr 8D and ground Nos. (iv) to (vi) are relating to the action of the CIT(A) in deleting the disallowance made by the AO u/s 68 of the Act of Rs. 3,65,55,496/-.

2.1 Briefly the facts of the case are that the assessee company, in the business of manufacturing gas turbine auxiliaries, filed its return of income for the AY 2013-14 admitting total income of Rs. 1,32,50,090/- under normal provisions and Rs. 1,24,80,000/- under Book profit u/s 115JB of the I.T. Act. The case was selected for scrutiny and accordingly the Assessing Officer issued statutory notices. In response to the notices, the appellant company filed the part information. Therefore, the Assessing Officer issued summons u/s 131. In response to the summons, the AR of the appellant appeared and filed the information. But to further notices, there was no response from the appellant company. Therefore, the Assessing Officer based on the information available on record and after going through the information filed, completed the assessment by making additions of Rs. 3,65,55,496/ -towards disallowance u/s 68, Rs. 65,000/- towards disallowance u/s 14A and assessed the total income at Rs. 4,98,70,586/-.

3. When the assessee preferred an appeal before the CIT(A), the CIT(A) allowed the appeal of the assessee.

:- 3 -: PVK Engineers Pvt. Ltd., Hyd.

5.1 Before the CIT(A), the assessee, inter-alia, submitted that since the assessee did not earn any dividend income on the investment made in associate company disallowance u/s 14A cannot be made. For this proposition, it relied on :- 4 -: PVK Engineers Pvt. Ltd., Hyd. the decision in the case of Prathista Industries ltd. Vs. DCIT in ITA No. 1302/Hyd/2014.

5.2 After considering the submissions of the assessee, the CIT(A) relying on the decision of Prathista Industries Ltd., (supra), deleted the addition made by the AO by holding that there is no dividend income during the year under consideration.

5.3 We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. We observe that there is no exempt income received by the assessee during the impugned AY. Therefore, the disallowance made by the AO u/s 14A r.w.r. 8D is not correct. It is a settled law that if there is no exempt income, no disallowance can be made as there are Catena of judgements of Hon’ble Tribunal that if there is no exempt income, no disallowance can be made u/s 14A of the Act. Therefore, we uphold the order of CIT(A) in deleting the disallowance made u/s 14A rwr 8D of the Act. Thus, the grounds raised by the revenue on this issue is dismissed.

:- 5 -: PVK Engineers Pvt. Ltd., Hyd.

2012-13. Further, the Share application money pending allotment was shown at Rs. 5,05,61,141/- as on 31-03-2013 as against Rs. 5,50,05,645/- as on 3103-2012. In this regard, the assessee furnished evidence in respect of increase in share capital of Rs. 3 crores from Sri PVK Reddy and Sri PRK Reddy and also furnished the list of investor with regard to share application money pending allotment as on 31-03-2013.

6.1 The assessee also filed confirmation letters from the investors with regards to their investment in the above company. The AR of the assessee was asked to furnish necessary and supporting evidence in respect of the share application money received from the above persons i.e., Balance sheet along with relevant Schedule and Ledger account of the investor companies reflecting their investments and sources along with relevant bank account statement in respect of individual investors and the assessee furnished the details in respect of share application money and sought time for furnishing of evidence sought for but has not furnished any evidence on the said date as well as till date. As the assessee failed to provide or furnish any supporting evidence in support of the share application money received during the year, the issue is being concluded on the basis of the information available on record.

:- 6 -: PVK Engineers Pvt. Ltd., Hyd.

6.2 The AO observed that the assessee had not given the investor-wise break up of share application money of Rs. 5,50,05,645/- as on 01-04-2012. The assessee furnished the names of the investors from whom the assessee company had received the amount and also filed the confirmation letters but failed to furnish the source of their investment except in the case of Sri PRK Reddy, where the assessee had furnished the confirmation letter, return of income, computation and also the bank statement indicating the amount invested.

6.3 As assessee has failed to furnish necessary and sufficient evidence to establish the genuineness of the credits received in the form of share application money from the above concerned persons(except in the case of Sri PRK Reddy) and also failed to establish the creditworthiness of the said investors. It is also gathered from the information available on the web that the paid up share capital of Lepakshi Ayush park Pvt. Ltd., and Nandian PVK Energy Pvt. Ltd., is only Rs. 1,00,000/- each which further adds to the doubt about their creditworthiness. As per the principles laid down by the decisions of Hon'ble Supreme Court in Kale Khan Mohammad Hanif vs. CIT (50 ITR 1) and A. Govindarajulu Mudaliar vs. CIT (34 ITR 807), the onus of proving the source of a sum of money found to have been received by an assessee is on him. When the :- 7 -: PVK Engineers Pvt. Ltd., Hyd. nature of source of a receipt cannot be satisfactorily explained by the assessee, it is open to the revenue to hold that it is the income of the assessee. Accordingly, it is treated that the assessee has not satisfactorily explained. In view of the above observations, the AO treated the amount of Rs. 3,65,55,496/- as unexplained cash credits u/s 68 of the I.T. Act and brought to tax in the assessment in respect of Sea Gold Aqua Farms Ltd., the assessee themselves have invested amount of Rs. 2.60 crores more than the amount of Rs. 2.40 crores received by them. Considering the same and in the absence of any adverse information on file at this point of time, no addition is made in the assessment on this count.

“7.3 1 have carefully considered the assessment order and submissions of the appellant. The appellant during the course of appeal proceedings, furnished the details with regard to PAN, details of creditors, which were already furnished before the Assessing officer during the course of assessment proceedings, were verified. It was observed from the assessment order that, the Assessing Officer himself accepted repayment of the amounts to the concern creditors during the F.Y. 2011- 12, but the balance amounts were added during the F.Y. 2012-13 which is not logical. Since the appellant has :- 8 -: PVK Engineers Pvt. Ltd., Hyd. proved the genuineness and the creditors were on the day to day business and were already existing in the earlier years, hence, the addition made by the Assessing Officer deleted and the grounds of appeal were allowed.”

8. Before us, the ld. DR besides relying on the order of AO submitted that the assessee has failed to furnish necessary and sufficient evidence to establish the genuineness of the credits received in the form of share application money form the concerns and also failed to establish the creditworthiness of the investors. Therefore, he submitted that the order of the CIT(A) be set aside and that of the AO is restored.

:- 9 -: PVK Engineers Pvt. Ltd., Hyd.

there was a opening balance of Rs. 4,70,79,739/-. After taking into consideration the opening balance, debit and credit balances, the assessee has received net amount of Rs. 5,05,61,141/- towards the share application money during the year, for which the assessee has filed confirmation letters from the parties, out of which there was dispute regarding of Rs. 3,65,55,496/- only. In the opinion of the A.O. the assessee did not discharge the liability as provided u/s 68 of the Income Tax Act.1961. The AO made the addition in respect of the share application money received from the following parties: i) Lepakshi Ayush Park Pvt. Ltd. – Rs. 52,95,534 ii) Nandian PVK Energy Pvt. Ltd. – Rs. 2,01,59,962 iv) Sri V. Krishna Mohan Rao - Rs. 11,50,000 v) Sri V. Sarath Babu - Rs. 15,00,000 vi) Sri VSRD Choudary - Rs. 15,00,000 vii) Sri Madan Reddy - Rs. 9,50,000 viii) Yashoda Energy Pvt. Ltd. - Rs. 60,00,000 Total -Rs. 3,65,55,496 In respect of the parties at Sl.No. i) & ii), there is a debit and credit amounts as appearing in the above table, out of which, the AO has accepted the payments made to them. Had it been the doubt in the receipt of the monies, the entire receipt could have been added, whereas, the AO has added only the closing balance, which is not proper. Therefore, the assessee gets relief in respect of the parties mentioned at Sl.No. i) & Ii). Further, in respect of the :- 11 -: PVK Engineers Pvt. Ltd., Hyd. parties at Sl.No. iv) to vii), these parties names are included under the head “share application money” in the above table as evident from the order of the AO, but, under the same head, there is also opening balance as stated above and on perusal of the assessment order, it is clear that the amount has been received in the FY 2011-12, but, not in the impugned AY. Therefore, the amount received in the previous year cannot be taxed in the current AY. Accordingly, the assessee gets relief. Further, on perusal of the above table, the assessee received Rs. 60 lakhs from the Yashoda Energy Pvt. Ltd. during the year and assessee has filed only confirmation letter indicating PAN with the address at Secunderabad, but, no other documents were filed. Whereas the CIT(A) has allowed the addition of Rs. 60,00,000/- without examining the issue in detail as per section 68 of the Act. The AR of the assessee also did not prove the genuineness of the transactions and credit- worthiness of the share applicant, namely, Yashoda Energy Pvt. Ltd. as per section 68 of the Act. The address provided by the assessee is vague as merely quoting the address as Secunderabad, how the department can trace the share applicant whereabouts. In view of the above observations, we deem it fit and proper to remit this issue to the file of the AO with a direction to decide the issue afresh. The assessee is directed to substantiate its claim as per section 68 of the Act before the AO. Thus, the ground raised by the revenue is partly allowed for statistical purposes.

:- 12 -: PVK Engineers Pvt. Ltd., Hyd.