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2008 (11) TMI 681 - ITAT DELHIBlock assessment order passed u/s 158BC - Bogus share capital unexplained cash credits u/s 68 or not - increase in share capital - deletion of levy of surcharge - It is noticed that the Revenue has not been able to specifically show that the investments had emanated from the coffers of the assessee in this case. Undisclosed Share Capital - HELD THAT:- The decision of the Hon’ble jurisdictional High Court in Value Capital Services Ltd.[2008 (4) TMI 263 - DELHI HIGH COURT] as also Hon’ble Supreme Court in Divine Leasing & Finance Ltd.[2008 (1) TMI 927 - SC ORDER], wherein the addition made by the AO and confirmed by the CIT(A) in regard to the alleged bogus shareholders represented by the increase in share capital of the assessee cannot be treated as unexplained cash credits in the hands of the assessee. Respectfully following the decision of the Hon’ble Supreme Court we direct the AO to delete the addition made u/s. 68. However, the Department is free to proceed to reopen the individual assessments of the share applicants in accordance with law. We direct accordingly. Deleting the levy of surcharge - HELD THAT:- In view of the decision of Hon’ble Supreme Court in the case of CIT vs. Suresh N. Gupta [2008 (1) TMI 396 - SUPREME COURT] held that proviso to s. 113 inserted by the Finance Act, 2002 w.e.f. 1st June, 2002 is clarificatory in nature, we confirm the action of AO and allow this ground in favour of assessee. In the result, both the appeals of the assessee and that of the Revenue are allowed in part.
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