Section 68 burden shifts after primary evidence; wrong statutory citation alone does not invalidate an otherwise lawful assessment.

A wrong citation of the taxing provision in an assessment order does not by itself invalidate an otherwise lawful assessment where jurisdiction exists and the defect is curable. In a section 68 enquiry on share capital and share premium, the assessee discharged the primary burden by producing identity documents, PAN, bank statements, audited accounts, returns, allotment records and confirmations for the share applicants. Once that evidence was on record, the onus shifted to the Revenue; mere non-appearance of some shareholders or lack of deeper enquiry was insufficient to sustain the addition, so the deletion was upheld.

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Issues: (i) Whether an assessment order is invalid merely because it mentions the wrong provision of law; (ii) Whether the addition made under section 68 of the Income-tax Act, 1961 on account of share capital and share premium was justified.

Issue (i): Whether an assessment order is invalid merely because it mentions the wrong provision of law.

Analysis: The assessment authority had jurisdiction to assess the assessee's income, and a wrong mention of the provision was treated as a curable defect. Mere misdescription of the provision did not by itself render the assessment incompetent or void. The error was held to be covered by the principle that a wrong citation of law does not invalidate an otherwise lawful exercise of jurisdiction.

Conclusion: The assessment was held not to be invalid on this ground, and the Revenue succeeded on this issue.

Issue (ii): Whether the addition made under section 68 of the Income-tax Act, 1961 on account of share capital and share premium was justified.

Analysis: The assessee produced documentary evidence regarding the share applicants, including their identity details, PAN, bank statements, audited accounts, income-tax returns, allotment records, and confirmations. The share applicants were found to be group concerns with common directors, and the transactions were through account payee cheques. The legal position applied was that the assessee must establish identity, creditworthiness, and genuineness, after which the onus shifts to the department. Mere non-appearance of some shareholders or failure to conduct deeper enquiry by the Assessing Officer was not sufficient to sustain the addition where the primary evidentiary burden had been discharged. The Court also noted that if any further doubt remained about the creditors' creditworthiness, meaningful enquiry should have been made, including from the creditors' own assessing officers.

Conclusion: The addition under section 68 was not sustainable and the deletion made by the first appellate authority was confirmed.

Final Conclusion: The Revenue obtained relief only on the technical assessment-ground issue, while the substantive addition relating to share capital and share premium was set aside in the assessee's favour, leaving the appeal only partly successful for the Revenue.

Ratio Decidendi: In a section 68 inquiry, once the assessee substantiates the identity, creditworthiness, and genuineness of the share applicants with primary evidence, the burden shifts to the Revenue, and an addition cannot be sustained merely because some shareholders do not appear or the Assessing Officer refrains from making meaningful enquiry.

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