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2019 (5) TMI 419 - AT - Income TaxAddition u/s 68 - Share premium collected by the assessee - HELD THAT:- On perusal of the chart given for fund position of each share applicant it reveals that the net owned funds of each share applicant were several times more than the investment made in equity of the assessee. It is evident that each share applicant had substantial resources of their own compared with the total investible funds available with each share applicants and that investment made in the equity shares and the assessee company was not significant. We note that the AO did not point out any defect or infirmity in the documents placed on record by the assessee as well as the share subscribers. Thus the creditworthiness of the aforesaid share subscribers cannot be disputed. Assessee had produced the aforesaid documents to explain the nature and source of the share capital along with share premium of the six corporate shareholders. AO had accepted the share capital subscribed by these six corporate entities. However, without pointing out any defects has whimsically without giving any reason by a cryptic order has added the entire share premium which was also given by the very same six corporate entities u/s 68 of the Act. AR brought to our notice that the similar additions were made by the Assessing Officer in five cases wherein the AO accepted the share capital but added the share premium which action of the AO was not upheld by the Tribunal. As decided in APEAK INFOTECH, YOGESH INFOTECH, AMPLY INFOTECH, WESTLINE TRADING COMPANY, JASPER COMMERCE, INEX INFOTECH [2017 (9) TMI 1590 - BOMBAY HIGH COURT] 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 Assessing Officer with regard to identity, capacity of the investor as well as the genuineness of the investment. Therefore, admittedly, the Assessing Officer did not invoke section 68 of the Act to bring the share premium to tax. - Decided in favour of assessee
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