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2015 (12) TMI 1074 - HC - Income TaxPenalties under section 271D - violation of Sections 269SS - ITAT deleted penalty - Held that - The amount received by the assessee towards share application money would not fall under loan or deposit under section 269SS of the Act. Consequently, the penalty under Section 271D of the Act was not leviable. The Tribunal was right in deleting the penalty. - Decided in favour of assessee.
Issues Involved:
1. Whether the ITAT was correct in not sustaining penalties under Section 271D of the Income Tax Act, 1961, for amounts received in the current account. 2. Whether receipt of share application money in cash is exempt from the provisions of Section 269SS. 3. Whether amounts received in cash over six years without share allotment can be treated as share application money. 4. Whether there was reasonable cause for receipt of cash by the assessee company from directors despite having bank accounts in the same city. Detailed Analysis: Issue 1: Non-Sustaining of Penalties under Section 271D The Tribunal deleted the penalties imposed under Section 271D on the ground that the amounts received were in a current account and not classified as loans or deposits. The Tribunal's decision was based on the interpretation that money received in a current account does not fall under the definition of loan or deposit as per Section 269SS, thus not attracting penal provisions under Section 271D. Issue 2: Exemption of Share Application Money from Section 269SS The Tribunal held that receipt of share application money in cash does not violate Section 269SS. The Tribunal reasoned that share application money is distinct from loans or deposits. This view was supported by the fact that no additions were made on account of share application money in the assessment orders, indicating the genuineness of the transactions. Issue 3: Treatment of Amounts Received in Cash Over Six Years The Tribunal treated the amounts received in cash over six years as share application money, noting that the funds were transferred to the share application account at the end of each year. The Tribunal emphasized that the funds were used for the construction of a hotel, and the directors contributed the money due to the non-sanctioning of loans by financial institutions. Issue 4: Reasonable Cause for Receipt of Cash The Tribunal found that there was a reasonable cause for the receipt of cash from directors. The Tribunal noted that the funds were required for labor payments and other cash expenses related to hotel construction. The Tribunal also observed that the transactions were genuine and done under a bona fide belief that no legal violation occurred, thus justifying the non-imposition of penalties. Relevant Statutory Provisions: - Rule 2(b) (vii) and (ix) of the Companies (Acceptance of Deposits) Rules, 1975: These rules exclude amounts received by way of subscriptions to shares, stock, bonds, or debentures from the definition of deposits. - Section 269SS of the Income Tax Act: Prohibits acceptance of loans or deposits in cash exceeding Rs. 20,000. - Section 271D of the Income Tax Act: Imposes penalties for contraventions of Section 269SS. Judicial Precedents: - CIT vs. Rugmini Ram Ragav Spinners P. Limited: The Madras High Court held that share application money is not a loan or deposit but a capital advance. - CIT vs. I.P. India P. Limited: The Delhi High Court ruled that share application money does not constitute a loan or deposit under Section 269SS. - CIT vs. Sunil Kumar Goel: The Punjab and Haryana High Court recognized that genuine family transactions based on a bona fide belief do not attract penalties under Sections 271D and 271E. - Bholotia Engineering Works Pvt. Limited vs. CIT: The Jharkhand High Court took a contrary view, holding that share application money could be considered a deposit under Section 269SS. Conclusion: The High Court dismissed the appeals, agreeing with the Tribunal's findings that the amounts received as share application money did not constitute loans or deposits under Section 269SS. Consequently, penalties under Section 271D were not applicable. The Court rejected the contrary view taken by the Jharkhand High Court and upheld the Tribunal's decision to delete the penalties.
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