TaxTMI 
TaxTMI 
2019 (9) TMI 1622
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....e 'Act'), relating to Assessment Year 2012-13. 2. The assessee is a company and has filed its return of income for the Assessment Year 2012-13 on 28/09/2012, declaring Nil income (Loss for Rs. 12,660/-). The Assessing Officer completed the assessment u/s 143(3) on 12/03/2015 adding an amount of Rs. 1,40,21,900/- u/s 68 of the Act, being share premium received by the assessee against allotment of shares. It may be noted that the face value of the shares allotted was accepted as genuine by the Assessing Officer. The assessee carried the matter in appeal. 2.1. The ld. First Appellate Authority, deleted the addition for various reasons given at para 4.2. to 4.9. of his order. 3. Aggrieved the revenue is in appeal before us. 4. The l....
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....rities below as well as case law cited, we hold as follows:- 7. This is a case, where the Assessing Officer has accepted the share capital raised by the assessee at its face value. The only addition made was of share premium on the ground that this is excessive. In other words, the identity of the share holder is not doubted. The creditworthiness is not questioned by the Assessing Officer, only part of the transaction is accepted as genuine. The issue before us is whether the Assessing Officer can make an addition of only the share premium u/s 68 of the Act, while accepting the share application money at face value to be genuine. This Bench of the Tribunal in the case of ITO vs. M/s. Trend Infra Developers Pvt. Ltd. in ITA No. 2270/Kol/2....
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....he 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. The only grievance of the ld. AO was that the assessee could not produce the directors of the share subscribing companies. In our considered opinion, for this reason alone, there cannot be any addition u/s 68 of the Act as held by the Hon'ble Supreme Court in the case of CIT vs. Orissa Corporation Pvt. Ltd. reported in 159 ITR 78 (SC). We find that the decision of Hon'ble D....
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....A: (a) The issue raised by the Revenue in this question is to bring to tax the share premium received under section 68 of the Act. We find that the issue of bringing the share premium to tax under section 68 of the Act was not an issue which was urged by the appellant Revenue before the Tribunal. The only issue which was urged before the Tribunal as recorded in para 11 of the impugned order is the addition of share capital and share application money in the hands of the assessee as income under section 28(iv) of the Act. We find that the Commissioner of Income-tax (Appeals) 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 u....
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.... the Tribunal. (d) We may also point out that decision of this court in Major Metals Ltd. v. Union of India [2012] 19 taxmann.com 176/207 Taxman 185/[2013] 359 ITR 450 Bom. proceeded on its own facts to uphold the invocation of section 68 of the Act by the Settlement Commission. In the above case, the Settlement Commission arrived at a finding of fact that the subscribers to shares of the assessee company were not creditworthy inasmuch as they did not have financial standing which would enable them to make an investment of Rs. 6,00,00,000 at premium at Rs. 990 per share. It was this finding of the fact arrived at by the Settlement Commission which was not disturbed by this court in its writ jurisdiction. In the present case the per....
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.... 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....