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2023 (4) TMI 809 - AT - Income TaxUnexplained cash credit u/s. 68 - Onus to prove - onus of proof u/s. 68 in the case of listed company - Assessee contended that it is a listed company with Bombay Stock Exchange, therefore, proviso to section 68 is not applicable and accordingly onus of proof u/s. 68 in the case of listed company is different compared to the onus that is required to be discharged in the case of private non listed company - whether CIT(A) grossly erred in giving relief to the assessee on the ground that it was a listed company, ignoring the law that provisions of Section 68 applied to one and all? - HELD THAT:- Revenue failed to consider the first proviso to Section 68 of the Act which was introduced by the Finance Act, 2012 with effect from 01.04.2013 which specifically says “where the assessee is a company, not being a company in which public or substantially interested”. It is for this reason, the Ld. CIT(A) at Para 5.9 of his order clearly held that the assessee company is a listed company in which public are substantially interested and invocation of section 68 not applicable. Further the assessee submitted the confirmation, bank statement, Return of Income and Allotment Advice, etc. before the A.O. We also see from record that Shri Chintan N. Shah has appeared before the A.O. in response to the summons issued and also explained his source of investment in the share capital of the assessee company which was from the commission received from his brother in law in Dubai. Shri Harshal K. Shah who is the director in M/s. Akhil Retail Pvt. Ltd. and M/s. Shvansh Estate Pvt. Ltd. submitted the copy of the confirmation bank account and Profit and Loss account and balance sheet, in response to the summons issued by the A.O. Shri Harshal K. Shah submitted the share application money details through bank transactions and the loan taken from M/s. India Infraspace and M/s. Shree Ghantakarna Rolling Mills Pvt. Ltd. which is reflecting in the balance sheet. Thus primary onus that lay on the assessee to establish the identity, genuineness and creditworthiness of the assessee is being proved beyond doubt by the assessee. Further the assessee also proved source of source of the investment made by the three parties. The Ld. A.O. could not disprove the same with necessary evidences, therefore the question of invoking Section 68 does not arise. As relying on M/S. KRAFT LAMINATE, C/O. LAXMI TIMBER, NR. MAHALAXMI TEXTILE MILL [2022 (3) TMI 774 - ITAT AHMEDABAD], DARSHAN ENTERPRISE [2022 (1) TMI 605 - GUJARAT HIGH COURT] and RANCHHOD JIVABHAI NAKHAVA [2012 (5) TMI 186 - GUJARAT HIGH COURT] we have no hesitation in confirming the order passed by the Ld. CIT(A) deleting the addition made u/s. 68 of the Act. Decided in favour of assessee.
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