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TMI Blog2012 (6) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... urns along with PAN, copy of passport, NRE bank account and loans were confirmed by the shareholder. It was also pointed out that though the assessee is not required to prove the creditworthiness, still it was proved by filing the sale proceeds of retail business in Russia along with statement of account of Habib Bank, Zurich and Employment Agreement. The ld. Counsel for the assessee relied upon the following judicial pronouncements: - a. CIT v. Lovely Exports [2008] 6 DTR (SC) 308; b. CIT v. Samir Biotech (P.) Ltd. [2010] 325 ITR 294 (Del); c. CIT v. Victor Electrodes Ltd. [2010] 329 ITR 271 (Del); d. CIT v. STL Extrusion (P.) Ltd. [2011] 333 ITR 269 (MP); e. DCIT v. STL Extrusion (P.) Ltd. [2010] 15 ITJ 872 (Ind Trib); f. CIT v. K.C. Fibres Ltd. [2010] 332 ITR 481 (Del); g. CIT v. Orbital Communications (P.) Ltd. [2010] 327 ITR 560 (Del); h. ACIT v. Devshree Project (P.) Ltd. [2011] 17 ITJ 607 (Ind Trib); i. ACIT v. Shree Kela Prakashan (P.) Ltd. [2010] 14 ITJ 539 (Ind Trib); j. ACIT v. Venkteshwar Isat (P.) Ltd. [2010] 14 ITJ 83 (CG); k. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was remitted from the account of the creditor with Habib Bank AG Zurich. The appellant has also filed evidences to the effect that the current emoluments of the creditor were in excess of USD 4.50 lacs per annum (equivalent to Rs.2.16 crore). The employment agreement of the creditor dated 7.7.2005 with Retail International Company, WLL also prove the creditworthiness of the creditor. Further the during appellate proceedings the appellant was specifically required to furnish some certificate or document in respect of deposits in the account of creditor with Habib Bank AG Zurich. The appellant further filed a certificate of a bank dated 24.11.2010 stating here in that Shri Nand Ji Mehrotra is maintaining this account since 5.6.2001 and that an amount of Rs.USD 6799995 was credited in his account on account of his share of sale proceeds of the company (Mother Care - Russia). The amount of share capital of Rs.50 lac was remitted on 2.8.2005 in the account of the creditor with State Bank of India Friends Colony, New Delhi from the Habib Bank account. These facts will indicate that the appellant has also explained the source of Rs.50 lacs in the hands of the creditor. It is noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering of explanation of the sum found credited in the books and nature and source thereof to the satisfaction of the Assessing Officer. On perusal of totality of facts available on record, we are satisfied that the assessee has discharged its onus by establishing the identity of the share holder along with nature and source of the money. Confirmation letter was also filed by the assessee. Even the ld. Assessing Officer has accepted in the assessment order that identity of the share applicant is not in doubt, therefore, the decision from Hon'ble Apex Court in the case of Lovely Export Ltd. (2008) (216 CTR 195) (SC) clearly comes to the rescue of the assessee. The Hon'ble Court while coming to a particular conclusion held as under: "If the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the Assessing Officer, then the Department is free to proceed to reopen their individual assessments in accordance with law, but it cannot be regarded as undisclosed income of assessee company." If the aforesaid conclusion drawn by Hon'ble Apex Court is kept in juxtaposition with the facts of the present appeal, we are satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of stamp duty, the value was adopted at Rs.17,67,000/-. The assessee was asked to show cause as to why the sale consideration value may not be taken as per sec. 50C. The assessee claimed that since the flat is a depreciable asset, the provision of sec. 50 is not applicable. The ld. Assessing Officer opined that since sec. 50C of the IT Act applies to all capital asset, no distinction can be made between depreciable and non-depreciable asset, consequently, he computed the capital gain as under: Total sale consideration as per market value - Rs.17,67,000 Less - Value as shown in the computation - Rs.5,46,293 Long term capital gain - Rs.12,20,700 On appeal, the learned Commissioner of Income Tax (Appeals) affirmed the stand of the ld. Assessing Officer by following the decision of the Special Bench of the Mumbai Bench of the Tribunal held that provisions of section 50C will apply to the case of the assessee. The assessee is aggrieved and has challenged the conclusion drawn by the first appellate authority by way of this cross objection. 4.2 During hearing, the ld. Counsel for the assessee placed reliance on the decision in the case of ACIT v. Rojer Pereira Communications P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bench of the Mumbai Tribunal in the case of United Marine Academy (2011) 138 TTJ (Mum) (SB) 129 and the decision from Hon'ble Apex Court in Common Wealth Trust Limited v. CIT; 228 ITR 1 (SC). It is pertinent to mention here that while coming to a particular conclusion, the Special Bench considered the following judicial decisions :- a. ACIT v. Roger Pereira Communications (P) Limited; [2009] 34 SOT (Mum) b Chhatturam Holiram Limited v. CIT; 25 ITR 326(Pat) c. CIT v. ACE Builders Private Limited; 281 ITR 210 (Bom). d. CIT v. ONGC [2002] 255 ITR 413 (Raj) e. CIT v. Tony Electronics Limited; 228 CTR 364 (Del) f. Hukumchand Mills Limited. v. CIT; 47 ITR 949 (Bom) g. Indralok Hotels (P) Limited v. ITO [2009] 20 DTR (Mum) 148 k. K.R. Palanisamy & Others v. UOI 306 ITR 6111 (Mad) j. Mrs. Munira S. Butawala (ITA No. 3468/Mum/2007) l. Singer India Private Limited (ITA No. 1785/Mum/2007) J Curcular No. 8 of 2008 dated 27th August, 2002. It is pertinent to mention here that the decision of ACIT v. Rojer Pareira Communications cited by the ld. Counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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