9911796707
TMI Blog2009 (12) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... as clearly brought out in the penalty order as well as in the relevant assessment order. 2. None appeared on behalf of the assessee on the appointed date of hearing i.e. on 10.12.2009. One adjournment application has been presented before us which is signed by one Shri B.L. Gupta on 8.12.209 and the same was presented before us by one Shri Jai Kishan Aggarwal,. We find that neither any power of attorney in favour of Shri B.L. Gupta is available before us nor Mr. Jai Kishan Aggarwal could produce any power of attorney in his favour and hence, we do not consider this application for adjournment and the same was rejected for the reasons that this request is neither by an authorized/competent person nor presented before us by an authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case clearly show that it could not be share application money. It was held by the AO that the money received by the assessee is nothing but loan despite having been given nomenclature of share application in its books of account. It is further noted that the Addl.CIT who has passed the penalty order that he assessee company had not advanced any reason for not using the banking channel, when both the directors of the assessee company and the assessee company were maintaining bank account. The AO has relied upon the judgment of Hon ble Jharkhand High Court, rendered in the case of M/s Bhalotia Engineering Works as reported in 275 ITR 399 and imposed penalty u/s 271D for violation o f section 269SS to the extent of ₹ 1 crore. 4. Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1 lakh, the company had already received ₹ 8.05 lakh in the earlier year towards share application money and hence, before deciding this issue by following various tribunal s decision and two judgments of Hon ble Madras High Court, the CIT(A) should have decided the factual aspect as to whether in the present case, the amount received by the assessee company was in fact on account of share application money. It was submitted that for this reason alone, the order of CIT(A) is not sustainable. It is also submitted that the judgment of Hon ble Jharkhand High Court followed by the AO has squarely covered this issue regarding receipt of share application money in violation of the provisions of section 269SS whereas the two judgments foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporation and there is no application made by the assessee company for increase in the authorized share capital. It is also noted that an amount of ₹ 8.05 lakh was also received by the assessee company in earlier years towards share application money. Hence, there was no amount left in authorized share apical against which the assessee company could have received any share application money in the present year. In the light of these facts, it cannot be held that the amount in question received by the assessee company was in fact share application money. It is settled position by now that the nomenclature given by the assessee company in its books of account is not final and decisive as held by the Hon ble Apex Court in the case of K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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