AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 1078
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....ital raised along with the names and the addresses of the shareholders, their PAN, IT acknowledgement of filing of return, copy of bank statement, copy of the audited accounts, copy of returns filed with ROC returns as well as copy of the minutes recorded for allotment of shares at the board meetings, when the AO, during the course of assessment proceedings, called for these details. Thereafter the AO issued notices u/s 131 of the Act to the share applicant companies. These were not complied with. The AO was not satisfied with the question of the share premium charged for issue of shares. He also recorded that few share allottee companies were facing prosecution under the Company's Act. As there was no compliance to notices issued u/s 131(1) of the Act, the AO passed a best judgement assessment order u/s 144(1) of the Act determining the total income of the assessee at Rs. 2,54,14,635/- inter alia, making in addition of Rs. 2,37,50,000/- being share premium received by the assessee company as unexplained cash credit u/s 68 of the Act. The fresh share capital issued and subscribed to the extent of this value of share of Rs. 10/- was accepted as genuine by the AO and no addition made....
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....he ld. CIT(A) relied on certain case laws and specifically on the decision of the Hon'ble Supreme Court in the case of Pr. CIT (Central-1) vs. NRA Iron & Steel Pvt. Ltd. arising out of SLP (Civil) No. 29855 of 2018 and uphold the order of the AO. Aggrieved, the assessee is in appeal before us. 3. Rival contentions heard. On a careful consideration of the facts and circumstances of the case, perusal of the papers on record and the case law cited, we hold as follows. 4. The companies which had applied for share capital and the creditworthiness of these companies is given in the following table: Name of the Party Amount Received Net Worth as per B/s RAMESH MERCANTILE PVT LTD 30,00,000 5,41,03,400 SWASTIK SECURITIES & FINANCE LIMITED 30,00,000 37,56,09,293 ROHAN FINANCE & SECURITIES LTD 30,00,000 38,87,62,077 PRA TIUS COMMERCIALS PVT LTD 30,00,000 4,94,65,886 ZIWANI BARTER PVT LTD 30,00,000 36,56,71,889 JPRECHHA COMMERCIALS PVT LTD 20,00,000 5,07,00,999 TRAMMEL TRADING PVT LTD 30,00,000 35,07,76,604 BACHCHI FINANCE PVT LTD 20,00,000 19,09,58,640 JP ENGINEERING CORPN PVT LTD 30,00,000 64,01,28,457 4.1. Each of these share al....
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.... has been doubted by the ld. AO. We find that the assessee in the instant case had duly complied with by furnishing the complete details of share subscribers to prove their identity, genuineness of the transaction and creditworthiness of share subscribers beyond doubt. These are duly supported by the documentary evidences which are enclosed in the paper book. The ld. AO had not found any falsity or any adverse inference of the said documents. We find that the Ld. CIT(A) had placed heavy reliance on these documents and had granted relief to the assessee. All the share subscribers are duly 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 fi....
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....peals) did consider the issue of applicability of section 68 of the Act and concluded that it does not apply. The Revenue seems to have accepted the same and did not urge this issue before the Tribunal. Mr. Bhoot, ld. 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 u/s 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 AO with regard to identity, capacity of the investor as well as th....
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....market value. This came into the statute only with effect from April 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 a....