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2018 (9) TMI 525 - AT - Income TaxReopening of assessment - addition u/s 68 - assessee charged share premium of ₹ 154.72 per shares for 28,66,500 shares issued during the year - income from other sources - Held that:- As per the provisions of section 56(2)(viib), where a company, not being a company in which the public are substantially interested, receives, in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration receive for such share as exceed the fair market value of such share was inserted by the Finance Act, 2012, w.e.f. 01/04/2013 and the present assessment year before us is 2009-10, therefore, the amendment made in section 68 is prospective in nature As decided in CIT vs Gangadeep Infrastructure Pvt. Ltd. (2017 (3) TMI 1263 - BOMBAY HIGH COURT) three essential tests while confirming the section 68 laid down by the Court namely the genuineness of the transaction, identity and the capacity of the investor have all been examined by the impugned order of the Tribunal and on fact it was found satisfied. Further it was a submission on behalf of the Revenue that such large amount of share premium gives rise to suspicion on the genuineness (identity) of the shareholders, i.e., they are bogus. The Apex Court in a case in this context to the preamended section 68 has held that where the Revenue urges that the amount of share application money has been received from bogus shareholders then it is for the Incometax Officer to proceed by reopening the assessment of such shareholder and assessing them to tax in accordance with law. It does not entitle the revenue to add the same to the assessee's income as unexplained cash credit. - decided against revenue
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