TMI Blog2020 (3) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... after considering the explanation of the assessee, had applied his mind. His view was that the amendment are not applicable in the case of the assessee for the year under consideration which is a possible view. The CIT did not agree with the conclusion reached by the ITO - Section 263 of the Act does not empower him to take action on these facts to arrive at the conclusion that the order passed by the ITO is erroneous and prejudicial to the interest of the revenue. Since the material was there on record and the said material was considered by the ITO and a particular view was taken, the mere fact that different view can be taken, should not be the basis for an action U/s 263 of the Ac and it cannot be held to be justified. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The order passed by the ld. CIT, Jodhpur U/s 263 is bad in law and bad on facts. 2. The ld. CIT had erred in observing that original assessment made U/s 143(3)/148 on 31st March, 2016 was erroneous so far as prejudicial to the interest of revenue. 3. The ld. Pr. CIT has erred in observing that the share capital money received during the year under consideration was not fully explained and needs to be re-examined. The same is bad in law and bad on facts. 4. The ld. Pr. CIT has erred in observing that the ld. AO had erred in observing that the amendment in Section 68 and Section 56(2)(viib) were applicable only from A.Y. 2013-14. Such a view cannot be said to be erroneous or prejudicial to the interest of Revenue. 5. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The addition was deleted in appeal before the ld. CIT(A) and the said order was also confirmed by Jodhpur Bench of the ITAT in their order dated 09.08.2017 in ITA No. 207/Jodh/2017. One of the reasons for deleting the said addition in the said year was that the amount of share capital was received in AY 2008-09 and only allotment of shares was made in AY 2009-10, and therefore on these grounds the addition cannot be sustained. 4. From the records, it appears that from the said finding for AY 2009- 10 given in the appellate proceedings action U/s 148 was taken for the year under consideration. Even from the reasons recorded it is seen that the action was taken on the basis of proceedings for AY 2009-10. 5. The contention of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s details with regard to the issue of share capital. The assessee company received a total sum of ₹ 1,50,00,000/- (One crore and fifty lacs) from 5 limited companies as Share Application money alongwith Share Premium in A.Y. 2008-09. The shares were allotted to all those companies in A.Y. 2009-10. It was contended that the assessee submitted interalia the Copies of accounts of all the companies pertaining to A.Y. 2008-09 and A.Y. 2009-10 indicating the amount was received towards share application, copy of bank statement, confirmations, copy of PAN card, and annual reports. 7. The assessee also contended that that no addition U/s 68 of the Act can be made in respect of share capital and share premium in the hands of the assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the source and creditworthiness of the share capital received. The shares of the company in the subsequent years had been transferred to certain related persons which also indicates that the share capital received was not genuine. The crux of the order is that the AO was not justified in accepting the contention of the assessee and the order so passed is erroneous and prejudicial to the interest of Revenue and therefore, the order was set aside to make fresh examination of the genuineness of the share application money U/s 68 of the Act. 9. On the other hand, the ld CIT-DR has relied on the orders of the authorities below. 10. We have heard the ld. counsels for both the parties and have also considered the material placed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for the year under consideration which is a possible view. The CIT did not agree with the conclusion reached by the ITO. However, Section 263 of the Act does not empower him to take action on these facts to arrive at the conclusion that the order passed by the ITO is erroneous and prejudicial to the interest of the revenue. Since the material was there on record and the said material was considered by the ITO and a particular view was taken, the mere fact that different view can be taken, should not be the basis for an action U/s 263 of the Ac and it cannot be held to be justified. 11. The basis for an action U/s 263 of the Act and it cannot be held to be justified. The order can be said to be erroneous assessment only if it de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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