INCOME TAX OFFICER, WARD-ITANAGAR, NORTH LAKHIMPUR vs. M/S. KAMALA HYDRO ELECTRIC POWER COMPANY LIMITED, ITANAGAR

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH “E” COURT AT KOLKATA Before Shri S.S.Godara, Judicial Member and Dr. A.L.Saini, Accountant Member ITA No.210/Gau/2017 Assessment Year :2012-13

Income Tax Officer V/s. M/s Kamala Hydro Ward-Itanagar & TPS Electric Power Co. Ltd., 1st Floor, Tajom Taloh at Borah Complex, D.K. Road,North Building, Daying Ering Lakhimpur (Asam)- Colony, ESS-Sector, 787001 Itanagar, Arunachal Pradesh-791111 [PAN No.AAOCS 1382 A] .. अपीलाथ� /Appellant ��यथ�/Respondent Shri Amitava Sen, JCIT-DR अपीलाथ� क� ओर से/By Appellant None ��यथ� क� ओर से/By Respondent 11-12-2019 सुनवाई क� तार�ख/Date of Hearing 18-12-2019 घोषणा क� तार�ख/Date of Pronouncement आदेश /O R D E R PER BEMCH:- This Revenue’s appeal for assessment year 2012-13 arises against the Commissioner of Income Tax (Appeals)-1 Guwahati’s order dated 29.09.2016 passed in case No.02/2016-17 involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short ‘the Act’. Case called twice. None appears at the assessee’s behest. Heard learned departmental representative. Case file perused.

ITA No.210/Gau/2017 Assessment Year: 2012-13 ITO Wd-Itanagar Vs. M/s Kamala Hydro Electric Power Co. Ltd. Page 2 application money of ₹9,27,50,000/- as unexplained cash credits. Mr. Sen invites our attention to the CIT(A)’s detailed discussion reading as follows:- “4.0. The ONLY GROUND of appeal is directed against the action of the AO it. treating share application money of Rs.9,27,50,000 as income of the appellant under section 68 of the Income Tax Ac t, 1961. 5.0. The appellant is a Joint Venture Company between M/s Jindal Power Limited and Government of Arunachal Pradesh [i.e. Hydro Power Development Corporation of Arunachal Pradesh] which has been established to develop and operate Attunli Hydro Electric Power Project. The share capital of the appellant company has been subscribed in the ratio of 74% and 26% by M/s Jindal Power Limited and Government of Arunachal Pradesh, respectively. 5.2. The appellant had received Rs.2,00,71,10,000 as advance share application money out of which Rs.9,27,50,000 was credited in the share application money during the current year. The AO treated the said amount as income of the appellant under section 68 of the Income Tax Act, 1961. 5.3. In this regard the relevant extract of the assessment order containing the reasons of the AO for the above action is reproduced as under: "From the balance sheet, it is seen that the assessee company has taken share application money amounting to Rs.2,00,71,10,000. Out of this, Rs.9,27,50,000 was credited in the share application money during the Financial Year 2011-12 as per Form 23AC in pursuance of Section 220 of the company Act, 1956 and Rule 7B [Form for filing balance sheet and other documents with the Registrar]. In terms .of Section 68 of the IT Act, 1961the assessee company IS required to furnish the nature and source of such sum so credited and particulars about the identity of the share applicants, evidence regarding the genuineness of the transaction and the credit worthiness of the share applicants. However, despite being given several opportunities, the assessee company has failed to furnish the desired particulars. Under the above circumstances, the sum of Rs.9,27,50,000 is treated as the taxable income of the assessee company as per section 68 of the IT Act, 1961." 5.4. Thus because the appellant did not submit details/ appear for hearing the AO has assumed that the identity and creditworthiness of the share applicant and the genuineness of the transaction has not been not been proved. On examination of the matter, I find this presumption of the AO to be erroneous because even without any further submission by the appellant, the materials available on the record itself were sufficient to establish the identity and credit worthiness of the share applicant and the genuineness of the transaction of Rs,9,27,50,000 made by the share applicant with the appellant However; it is seen that the AO did not even attempt to examine these three ingredients and merely because the appellant company did not appear before him for hearing he presumed and concluded that the three ingredients were not proved, 6.0. In notes to account forming part of the audited accounts submitted to the AO, at paragraph 5 [B] it is seen that the appellant has admitted the following table. B) Transaction with Related Parties

ITA No.210/Gau/2017 Assessment Year: 2012-13 ITO Wd-Itanagar Vs. M/s Kamala Hydro Electric Power Co. Ltd. Page 3 Nature of transactions Holding company Current Year Previous Year Advance against share application 9,27,50,000 11,14,36,000 money [pending allotment] Reimbursement of expenses, paid Nil 2,10,42,451 Balance as on 31.03.2012 Advance against share application 2,00,71,10,000 1,91,43,60,000 money [pending allotment] 6.1. At paragraph 7 of the notes to account it is written that - "Jindal Power Limited and Hydro Power Development Corporation of Arunachal Pradesh Limited have entered into a Joint Venture Agreement to develop and operate Attunli Hydro Electric Power Project and have subscribed 74% and 26% of the share capital of the Joint Venture Company respectively." 6.2. It is evident from the above two items that the share applicant is none other than the holding company, i.e., M/s Jindal Power Limited, 6.3. It is to be noted that M/s Jindal Power Limited was not an unknown third party creditor but was in fact one of the two promoters of the appellant company itself. The question of proving the identity, when the person is the promoter of the appellant company, does not arise. It is also to be noted that M/s Jindal Power Limited is a well known company and hence the question of doubting its identity does not arise. 6.4 It is also seen from the table at paragraph 5[B] that the funds amounting to Rs.9,27,50,000 which was credited as share application money during the year was provided by M/s Jindal power, Limited. The same table indicates that M/s Jindal Power Limited also provided funds of Rs.11,14,36,000 which was credited as share application money in the previous year. This transaction of Rs.11,14,36,000 has been accepted by the AO as no disallowance/addition was made in the previous year. Thus, having accepted the identity and creditworthiness of M/s Jindal Power Limited for the transaction of Rs11,14,36,000 in the previous year, the AO has by his own action precluded himself from questioning the identity and creditworthiness of M/s Jindal Power Limited with regard to the transaction of Rs.9,27,50,000 in the current year. The same applicant cannot be treated as unknown and lacking creditworthiness in one year when in another year his identity and creditworthiness was accepted. 6.5. In view of the above reasons, the action of the AO in holding that the identity and creditworthiness of the share applicant, i.e., M/s Jindal Power Limited is NOT SUSTAINABLE. 7.0. It may also be noted that it was beyond the capability of the appellant company to have earned such huge amount of Rs.9,27,50,000 as profit or income as it had not even started any commercial activity. 7.1. In this regard, on the basis of the decisions in the case of CIT Vs Bharat Engineering and Construction Company [83 ITR 187] and CIT Vs PK Noorjahan [237 ITR 571] the appellant has argued that since the appellant could not have possibly earned income even before it had commenced its activities the AO should not have treated the amount of Rs.9,27,50,000 as income of the appellant.

ITA No.210/Gau/2017 Assessment Year: 2012-13 ITO Wd-Itanagar Vs. M/s Kamala Hydro Electric Power Co. Ltd. Page 4 7.2. On consideration of the submissions of the appellant and on perusal of the cases cited by him, I find merit in the contention of the Authorised Representative. In a situation where the appellant had not even commenced its activities, in the very nature of things it was impossible for the appellant company to have earned such a huge amount as profit or income. 7.3. In view thereof, I am of the opinion that the AO action of the AO in treating the amount of Rs.9,27,50,000 as income of the appellant is NOT SUSTAIN ABLE in view of the fact that the appellant was not in a position to earn such income. 8.0. It is seen that the ONLY basis of the AO to disallow the transaction of and non submission of documents. 8.1. In has been argued that mere non attendance alone or non submission of documents cannot render the transactions of the appellant false or not genuine. The punishment for non attendance of scrutiny hearing or non submission of documents is prescribed in some other section like section 271[1][b]. In this regard, I agree with the appellant that the provisions of section 68 of the Income Tax Act, 1961, cannot be invoked as a punishment for non attendance of scrutiny hearing or non submission of documents. 8.2. In view thereof, since non attendance of hearing/ non submission of documents cannot he a valid cause for disallowance and since the AO has not brought on record any other material to support the addition and has made the addition for no other reasons other than the non attendance/non submission of documents, I hold that the addition of Rs.9,27,50,000 is NOT SUSTAINABLE, 9.0. In conclusion, for the reasons discussed at paragraphs 6.0 to 6.5, paragraphs 7.0 to 7.3 and paragraphs 8.0 to 8.2 above, I hold that the AO had no valid justification for making the addition of Rs.9,27,50,000. The addition is therefore NOT SUSTAINABLE and hence the addition of Rs.9,27,50,000 is hereby DELETED.” 3. Mr. Sen submits during the course of hearing is that the CIT(A)’s action under challenge relating to impugned addition is neither sustainable in law nor as facts since the assessee’s impugned share application has failed to satisfy the three basic parameters of identity, genuineness and creditworthiness of the subscriber entity. He therefore seeks to restore this issue for afresh factual verification.

ITA No.210/Gau/2017 Assessment Year: 2012-13 ITO Wd-Itanagar Vs. M/s Kamala Hydro Electric Power Co. Ltd. Page 5 subscribed to the assessee’s stake. We hold in these peculiar facts that CIT(A) has rightly deleted the impugned addition. we find that hon'ble Gujarat high court’s decision in decision in Tax Appeal No.118 of 2018 PCIT vs. Gyscoal Alleys Ltd. decided on 01.10.2018 upholds the tribunal’s order deleting similar addition in case of such related parties as under:- “Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal, Ahmedabad Bench {"Tribunal" for short} raising the following substantial question for our consideration : "Whether Appellate Tribunal has erred in law and on facts in deleting the addition made by the Assessing Officer on account of Rs. 9,99,99,900/= as per the provision of Section 68 of the Income-tax Act, without properly appreciating the facts of case and the material brought on record ?" C/TAXAP/1180/2018 ORDER The issue pertains to the share application money received by the respondent-assessee-company. The Assessing Officer added a sum of Rs. 9.99 Crores [rounded off] in the hands of the assessee with the aid of Section 68 of the Income-tax Act, 1961 ["the Act" for short]. CIT [A] deleted such addition primarily on the ground that the assessee had established the source, genuineness of the transactions and the creditworthiness of the investors. In further detailed consideration, the Tribunal confirmed the view of CIT [A], making the following observations :- "I have carefully considered the facts of the case, the assessment order and the written submission of the appellant. The appellant has received an amount of Rs. 9,,99,99,900/- on account of share capital and share premium from M/s. General Capital and Holding Co. Pvt. Ltd, Ahmedabad during the year. The AO held that the creditworthiness and the genuineness of the transaction were not proved by the appellant and accordingly made the addition under Section 68 of the Act for the above amount. The appellant has submitted that all three ingredients such as, credit worthiness, genuineness and the identity of the share applicant have been proved and therefore, the addition should not have been made by the AO.C/TAXAP/1180/2018 ORDER During the course of appellate proceedings, the assessment records were also obtained from AO and the same have also been examined by me to ascertain the facts correctly. The share applicant company M/s. General Capital has been duly confirmed the fact of making investment in the appellate company. The amounts have been received through banking channel. The same are duly reflected in the annual accounts of that company. The extracts of the bank statement which have been filed before me during the course of appellate proceedings as well as before the AO clearly show that there are no cash deposits as mentioned by the AO in the assessment order. The observation of the AO that the cash has been deposited and subsequently cheques were issued is factually incorrect. The director of the company also attended before AO and confirmed the fact. It is also noted that both the companies, that is the appellant company as well as the share applicant are managed by the same group of persons. Honourable High Court of Gujarat has consistently held that if the assessee has given sufficient proof in respect of the share application, no addition can

ITA No.210/Gau/2017 Assessment Year: 2012-13 ITO Wd-Itanagar Vs. M/s Kamala Hydro Electric Power Co. Ltd. Page 6 be made in the hands of the assessee. If the AO has any doubt about the source of the share applicant further investigation can be made in the hands of the share applicant, but not in the case of the appellant. ." ORDER It can thus be seen that the entire issue is based on appreciation of material on record. CIT [A] and the Tribunal concurrently came to the conclusion that the assessee had discharges its basic onus. The investors have confirmed the transactions. Such transactions were carried out through the banking channel. The director of the investing company had also appeared before the Assessing Officer and also confirmed the transactions. The CIT [A] and the Tribunal also did not confirm the Assessing Officer's finding that the assessee failed to establish the creditworthiness or genuineness of the transactions.” We notice that the factual position is no different herein as well wherein the investment between group entities by way of joint venture do not invite the impugned addition if the relevant parameters are proved as genuine. We accordingly confirm the CIT(A)’s findings that the Assessing Officer had erred in impugned addition. 5. This Revenue’s appeal is dismissed. Order pronounced in the open court 18/12/2019 Sd/- Sd/- (A.L.Saini) (S.S.Godara) (Accountant Member) Judicial Member) Kolkata, *Dkp �दनांकः- 18/12/2019 कोलकाता/। आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-ITO Ward-Itanagar & TPS Camp at Borah Complex, D.K. Road, North Lakhimpur (Assam)-787001 2. ��यथ� /Respondent-M/s Kamala Hydro Electric Power Co. Ltd., 1st Floor, Tajom Taloh Building, Daying Ering Colony, ESS-Sector, Itanagar Arunachal Pradesh-791111 3. संबं*धत आयकर आयु-त / Concerned CIT Guahati 4. आयकर आयु-त- अपील / CIT (A) Guahati 5. 0वभागीय �3त3न*ध, आयकर अपील�य अ*धकरण, / DR, ITAT, Guahati 6. गाड7 फाइल / Guard file. By order/आदेश से, /True Copy/ Sr. Private Secretary, Head of Office/DDO आयकर अपील�य अ*धकरण, गूवाहाठ� ।