DEPUTY COMMISSIONER OF INCOME TAX vs. M/S. SHEEBA KURIES LTD, PUNE

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).

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.

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.

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Needless to say, the assessee will be given opportunity of putting up its case before the AO in such fresh proceedings.

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. *