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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R.S. SYAL & SHRI VIKAS AWASTHY
आदेश / ORDER PER R.S.SYAL, VP :
This appeal by the Revenue arises out of the order for the Assessment year 2012-13 passed by the ld. CIT(A)-4, Pune on 25-09-2016 deleting the addition of Rs.1,35,20,000/- made by the Assessing Officer (AO).
Briefly stated, the facts of the case are that the assessee company raised share application money amounting to
2 ITA No.104/PUN/2017 M/s. Sheeba Kuries Ltd.,
Rs.1,35,20,000/-. On being called upon to prove the
creditworthiness of the persons contributing such share
application money, the assessee failed to furnish any evidence
except names and amounts. Even no confirmations etc. were
filed on behalf of the assessee. The AO made addition of
Rs.1,35,20,000/- and inadvertently mentioned it as having been
made u/s.41 of the Income-tax Act, 1961 (hereinafter also
called `the Act’). The ld. CIT(A) deleted the addition by
simply holding that the provisions of section 41 were not
attracted in this case. He did not bother to go into the merits of
the genuineness of share application money. The Revenue has
come up in appeal before the Tribunal.
We have heard both the sides and gone through the
relevant material on record. It is apparent from the assessment
order that the AO specifically required the assessee to furnish
confirmations, bank statements and other corroborative
evidence to prove the genuineness of share application money
shown to have been received by the assessee at
Rs.1,35,20,000/-. The assessee, except for filing names and
amounts, could not lead any evidence whatsoever to prove the
genuineness of the amount. The mere fact that the AO
3 ITA No.104/PUN/2017 M/s. Sheeba Kuries Ltd.,
mentioned a wrong section cannot take away his jurisdiction
when he was otherwise examining the issue from the angle of
genuineness of the transaction in terms of section 68 of the Act.
It is a trite law that mere mentioning of a wrong section does
not take away jurisdiction of the AO if his action is otherwise in
accordance with law. The Hon’ble Andhra Pradesh High Court
in AWARE vs. Dy. CIT (2003) 263 ITR 13 (AP) has held that :
`Thus, mere mentioning of a wrong provision itself would not
be fatal to the assessment proceedings when the AO was
justified in his action under some other provisions of the Act.’
As the ld. CIT(A) deleted the addition simply on the ground
that the AO mentioned wrong section in the order without
considering the substance of the matter, in our considered
opinion, he erred in deciding the issue in this manner.
Considering the totality of the facts and circumstances of the
instant case and the further fact that the assessee could not
produce any evidence before the AO at the assessment stage to
prove the genuineness of the receipt of share application
money, in our considered opinion, as agreed by the ld. AR as
well, it would be in the fitness of the things if the matter is sent
back to the AO for deciding it afresh. We order accordingly.
The impugned order is, therefore, set-aside to this extent.
4 ITA No.104/PUN/2017 M/s. Sheeba Kuries Ltd.,
Needless to say, the assessee will be given opportunity of putting up its case before the AO in such fresh proceedings.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the Open Court on 08th May, 2019.
Sd/- Sd/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 08th May, 2019. सतीश
आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. आयकर आयु�(अपील) / The CIT (Appeals)-4, Pune 4. The Pr.CIT-3, Pune िवभागीय �ितिनिध, आयकर अपीलीय 5. अिधकरण, पुणे “ए” / DR ‘A’, ITAT, Pune; 6. गाड� फाईल / Guard file. // True copy // आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
ITA No.104/PUN/2017 M/s. Sheeba Kuries Ltd.,
Date 1. Draft dictated on 07-05-2019 Sr.PS 2. Draft placed before author 07-05-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *