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2022 (5) TMI 212 - AT - Income TaxAddition u/s 68 - Unexplained share capital/premium received - scope of amendment in Section 68 by Finance Act, 2012 w.e.f. 01.04.2013 - HELD THAT:- It is an undisputed fact that parties to the Share Capital/Share Premium had responded to the enquiries made by the Assessing Officer u/s 133(6) as per the evidences placed in the paper book and reproduced as above. The identity of the parties have been established and their PAN have also been provided and nothing adverse have been pointed out by the Assessing Officer/CIT(A). Even the existence of the parties have been proved by the voluminous documents submitted by such subscribers to the ‘Registrar of Companies’ like ‘Certificate of Incorporation’, ‘Memorandum of Association’, ‘Form No. 23AC’ and thus, identity of the subscribers to the Share Capital stands established. Following the judgment of the Hon’ble Bombay High Court in case of ‘Gagandeep Infrastructure’ [2017 (3) TMI 1263 - BOMBAY HIGH COURT] and ‘Paradise Inland Shipping Pvt. Ltd.’ [2017 (3) TMI 1263 - BOMBAY HIGH COURT] and we hold that the said amendment to Section 68 cannot be said to be retrospective in nature and it has to be prospective i.e. from AY 2013-14. The judgements of the Hon’ble Apex Court in the case of ‘G. S. Homes & Hotels Pvt. Ltd.’ [2016 (8) TMI 613 - SC ORDER] and case of ‘Apeak Infotech [2017 (9) TMI 1590 - BOMBAY HIGH COURT] read with Vodafone India Services P. Ltd.’ [2014 (10) TMI 278 - BOMBAY HIGH COURT] are quite apt to the issue that ‘share capital’ and ‘share premium’ are on ‘capital account’ and cannot be considered as income of the assessee. Accordingly, the addition as made by the Assessing Officer and confirmed by the CIT(A) deserves to be deleted and as such, we delete the addition made u/s. 68 - Decided in favour of assessee.
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