TMI Blog2016 (7) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the director of the assessee offered the amount of share capital as its income. Considering the totality of the facts, we are of the view that in the present case, no interference to the order of ld.CIT(A)is called for. - Decided against assessee. - I.T.A. No.368/Ahd/2011 - - - Dated:- 7-7-2016 - SHRI R.P. TOLANI, JUDICIAL MEMBER And SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER For The Appellant : Shri S.N. Divatia and Shri P.D. Shah, A.Rs For The Respondent : Shri Sanjay Kumar, Sr.DR ORDER PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : This appeal by the Assessee is directed against the order of the Commissioner of Income Tax(Appeals)-VI, Ahmedabad dated 30/12/2010 for the Assessment Year 2007-08. 2. The relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile computing the total income. 2.2. Before us at the outset, the Ld AR submitted that he did not wish to press Ground No.2 on account of smallness of amount. In view of the aforesaid submission, Ground No. 2 is dismissed as not pressed. 2.3. Ground No.1 is with respect to addition u/s.68 of the Act. 3. During the course of assessment proceedings and on perusing the Balance Sheet, Assessing Officer (AO) noticed that Assessee had received fresh capital of ₹ 45 lacs against the allotment of 45000 equity shares having face value of ₹ 10 each at a premium of ₹ 90 per share, the details of which are tabulated at Page 2 of the assessment order. AO further noticed that during the year, the shares of the Assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment P Ltd. wherein the statement of Pankaj Shah, its director was recorded u/s 131 of the Act, wherein he denied having any knowledge of the affairs of the company. AO noted that the statement of Shri Rupang Shah was brought to the notice of Chetan Shah, the director of the Assessee. AO noted that Chetan Shah submitted that the share capital introduced was genuine but according to AO, no supporting evidence to prove the genuineness of the transaction was placed before AO. He also noted that the Assessee vide letter dated 17.9.2009 offered the whole amount of capital introduced as income for tax. AO therefore considered the amount of ₹ 45 lacs introduced as share capital to be non genuine and accordingly made addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. He further submitted that the offer made was subject to condition that no penalty u/s 271(1)(c) of the Act shall be levied but since AO has levied the penalty, no addition could have been made on the basis of offer. He further submitted that CIT(A) also did not adjudicate on merits and while upholding the addition has simply held that since the assessee had accepted the capital as bogus, Assessee had no legal right to appeal against the agreed addition. He further placed reliance on the decision of Mumbai Tribunal in the case of Bambino Investment Trading Co Ltd. vs DCIT (2004) 2 SOT 585 (Mum) and the decision in the case of CIT vs. M. Pyngrope reported in 200 ITR 106 (Gau). As an alternate submission, he submitted that the matter be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax with a condition that no penalty would be levied on such addition and further no addition could be made on the basis of offer given by the assessee as the tax is on the income of the assessee and that a person cannot be taxed on the basis of concession given by the assessee and for this proposition reliance was placed on the decision of Tribunal in the case of Bambino Investment Trading Co Ltd. vs. DCIT (supra). We find that the ratio of the decision relied upon by ld.AR is not applicable to the present facts because the Tribunal in that case has held that assessee has right to appeal when concession is given under mistaken impression of true legal position but it cannot be equated to a concession as regards facts. In the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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