TaxTMI 
TaxTMI 
2019 (2) TMI 102
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.... 4,70,447/-. The ld. AO observed that since there was no substantial business activity carried on by the assessee, the assessee company cannot command huge share premium. Accordingly he sought to verify the veracity of the share capital and share premium raised by the assessee. The assessee submitted that it is engaged in the business of investment in unquoted equity shares of companies and properties. The assessee raised share capital and share premium from the following share holders: 1. Blossom Vinimay Pvt Ltd (Since amalgamated with Dreamz PBC Web Length Pvt Ltd) P-445, Hemanta Mukhopadhya Sarani, 4th Floor, Flat No. 4S, Kolkata - 700029 PAN - AADCB9501B Date of allotment of shares - 31.3.2012 Number of Shares - 92500 equity shares Face value per share - Rs. 10 Total Share Capital received - Rs. 9,25,000/- Premium value per share - Rs. 190 Total Share premium received - Rs. 1,75,75,000/- 2. Baliraja Distributors Pvt Ltd P-445, Hemanta Mukhopadhya Sarani, 2nd Floor, Flat No. 2N, Kolkata - 700029 PAN - AABCB3083G Date of allotment of shares - 31.3.2012 Number of Shares - 50000 equity shares Face value per share - Rs. 10 Total Share Capital received ....
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....of the Act to the share subscribers independently were duly complied with by them before the ld. AO. It was submitted that the summons u/s 131 of the Act was issued at the end of the limitation period. The summon was issued asking the directors of the assessee company to appear before him in short notice. The director of the assessee Mr Sukhendra Shukla appeared on due date on 19.2.2015 for giving his deposition along with his identity proof, copy of bank statement of the assessee company supported by the bank ledger and share subscribers' ledger but the ld AO did not gave him an opportunity to present his case before him. Later the director of the assessee company Mr Sukhendra Shukla explained all these facts vide his written submission filed on 25.2.2015 before the ld AO in response to summons u/s 131 of the Act. It was also submitted that the director of the investor company also did appear to give his deposition and submit the papers before the ld AO. It was stated that the ld AO very openly refused to take any deposition or record the presence for that and suggested to file the documents officially in his office which was duly complied with upto the satisfaction of the ld AO. ....
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....e ld. AO had adjudicated the issue with a predetermined state of mind that the share premium received by the assessee is not genuine. He also observed that the ld. AO held that the shareholders did not exist and the transactions were accordingly an eye wash only for bringing the black money of the assessee only into the company in the garb of share capital and share premium. The Ld. CIT(A) gave a categorical finding that each of the share subscribers are regularly assessed to income tax and that the investments made by each of them were duly and fully reflected in their audited books of accounts as well as in their income tax returns which are part of the paper book. The notices u/s 133(6) of the Act issued by the ld. AO to each of the share subscribers also stood duly complied with. He held that each of the share applicants maintained bank statement which are part of the paper book, from where, it is evident that all the transactions were routed through proper banking channels and duly reflected in their respective books of accounts which proves the genuineness of the transaction beyond doubt. He also observed that all the share applicants explained their respective source of fund....
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.... assessed to income tax and the transaction with the assessee company are duly routed through banking channels and are duly reflected in their respective audited balance sheets which are also placed on record before us. In any case, once the receipt of share capital has been accepted as genuine within the ken of section 68 of the Act, there is no reason for the ld. AO to doubt the share premium component received from the very same shareholders as bogus. We held that all the three necessary ingredients of section 68 had been duly complied with by the assessee with proper documentary evidences. We find that notices issued u/s 133(6) have been duly complied with. We find that the director of the assessee company together with the director of the investor company were present before the ld AO and the assessee had submitted that the ld AO had informed them to file the necessary details called for in the summons u/s 131 of the Act in his office through proper mode in tapal, which was accordingly done by them. It was also submitted that the both the directors of the assessee company as well as the director of the investor company offered themselves for deposition which was refused by the....
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.... the same and did not urge this issue before the Tribunal. Mr. Bhoot, learned counsel appearing for the Revenue also fairly states that the issue of applicability of section 68 of the Act was not urged by the Revenue before the Tribunal. (b) It is a settled position in law as held by this court in CIT v. Tata Chemicals Ltd. [2002] 122 Taxman 643/256 ITR 395 (Bom.) that in an appeal under section 260A of the Act, the High Court can only decide a question if it had been raised before the Tribunal even if not determined by the Tribunal. Therefore, no occasion to consider the question as prayed for arises. (c) In any case, we may point out that the amendment to section 68 of the Act by the addition of proviso thereto took place with effect from April 1, 2013. Therefore, it is not applicable for the subject assessment year 2012-13. So for as the pre-amended section 68 of the Act is concerned, the same cannot be invoked in this case, as evidence was led by the respondents-assessees before the Assessing Officer with regard to identity, capacity of the investor as well as the genuineness of the investment. Therefore, admittedly, the Assessing Officer did not invoke section 68 of the Ac....
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....il 1, 2013 and thus, would have, no application to the share premium received by the respondentâEUR"assessee in the previous year relevant to the assessment year 2012-13. Similarly, the amendment to section 68 of the Act by addition of proviso was made subsequent to previous year relevant to the subject assessment year 2012-13 and cannot be invoked. It may be pointed out that this court in CIT v. Gagandeep Infrastructure (P.) Ltd. [2017] 80 taxmann.com 272/247 Taxman 245/394 ITR 680 (Bom.) has while refusing to entertain a question with regard to section 68 of the Act has held that the proviso to section 68 of the Act introduced with effect from April 1, 2013 will not have retrospective effect and would be effective only from the assessment year 2013-14. (c) In view of the above, question No. B as proposed also does not give rise to any substantial question of law as it is an issue concluded by the decision of this court in Vodafone India Services (P.) Ltd. (supra) and in the apex court in G. S. Homes and Hotels (P.) Ltd. (supra). Thus not entertained. Therefore, all the six appeals are dismissed. No order as to costs." 6.2. We find that the issue under dispute was the s....