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TMI Blog2012 (5) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... ('the Act' hereinafter) for the assessment year (A.Y.) 2003-04. As the appeals raise a common issue, even as conceded to by both the parties, they were heard together, and are being disposed of vide a common, consolidated order. We shall, however, for the sake of reference, mention the figures as obtaining in the case of M/s. Orchid Medicare (P.) Ltd. 2. We have heard the parties and perused the material on record, as also reviewed the case law in the matter, including that cited before us. 2.1 The only issue arising in these appeals is the sustainability in law of the addition u/s. 68 of the Act in respect of the sums received by the assessees by way of share application money from two other companies; the Revenue's sole ground reading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in providing accommodation entries for a commission, so that the share investments are bogus. In other words, the investments under reference do not represent any real investment by the share applicant company/s, so that it is a case of no investment or a benami investment. Without doubt, if the investment under reference is shown to be bogus, so that there has been no actual investment by the creditor or it is a benami investment, section 68 would definitely apply, even as clarified by the hon'ble jurisdictional High Court in the case of, inter alia, Arawali Trading Company vs. ITO, 220 CTR 622 (Raj.). Further, in the context of investment by way of share capital/share application money, it has in fact gone on to say (in CIT vs. Shree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fronted to the assessee at any stage. The ld. CIT(A) we observe has in fact noted the lack, nay, absence of proper enquiry in the matter by the assessing authority. However, rather than proceeding to complete the enquiry by invoking his coterminous powers, he proceeds to discuss the law in the matter, with each of the decisions referred to by him being rendered, as would be apparent from a reading thereof, in the fact-setting of the respective cases, without appreciating the Revenue's case, which is primarily factual, as indeed the application of section 68 is. (refer para 4.1 of the impugned order). The decision in the case of CIT v. Oasis Hospitalities (P.) Ltd (2010-TIOL-HC-Del), discussed at para 4.2 of his order, again, clarifies this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share applicant-company/s, for the onus to shift back to the assessee. The decision in the case of CIT vs. Kamdhenu Steel & Alloys Ltd. (2012) 68 DTR 38 (Del.) is, again, precisely on this aspect of the matter, and rightly relied upon by the assessee. In fact, the non-proceeding by the Revenue along these lines raises serious doubts as to the credibility of its claims per its ground of appeal, no case in terms of which stand made out. Here it would be pertinent to state that it was only on the finding of lack or absence of proper or necessary enquiry by the assessing authority that the tribunal's order, setting aside the action of the Commissioner of Income-tax in invoking sec. 263 of the Act, was affirmed by the hon'ble court as giving ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stensible creditor-investors to the investee-company, i.e., the impugned transactions are paper transactions. If, on the other hand, the impugned `investments' are claimed to represent benami investments, the onus on the Revenue, as explained by the hon'ble jurisdictional high court, is even higher, while, as stated earlier, it has not even made out a prima facie case in support of its claims. Both the decisions cited by the Revenue are not in relation to share investment, which, as in the case of bank deposits, is characterized by a presumption of genuineness, particularly where in relation to a public offer, which thus needs to be impugned by the Revenue where a prima facie case is made out by the assessee-investee. Reliance on the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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