9911796707
TMI Blog2017 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s appeals in respect of the six respondent-assessees all relating to the assessment year 2012-13. The issue arising in all these appeals are identical, viz., whether the amount received as share premium on issue of share by the respondent-assessees-companies could be taxed as profits and gains of business in the hands of the assessees under section 28(iv) of the Act. 2. Mr. A. J. Bhoot the learned counsel of the Revenue states that the relevant facts and questions arising for our consideration in all these six appeals are identical and be heard together. Therefore they are heard together. 3. Although numerous questions of law has been raised in the six appeals, Mr. A. J. Bhoot learned counsel for the appellant urges only the following q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he share premium received to its income as profits and gains of business under section 28(iv) of the Act. 5. Being aggrieved by the above assessment orders, the respondent-assessees in all the six appeals carried the above issue in appeal to the Commissioner of Income-tax (Appeals) (CIT(A)). By six distinct orders all dated March 15, 2016 (one in respect of each respondent-assessee) held that section 28(iv) of the Act would have no application, as it dealt with the benefit other than cash or money arising out of business as held by this court in Mahindra and Mahindra Ltd. v. CIT reported in [2003] 261 ITR 501 (Bom). It is also to be noted that the Commissioner of Income-tax (Appeals) also held that section 68 of the Act will not apply as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-7380 of 2016 rendered on August 9, 2016)- [2016] 387 ITR 126 (SC) wherein, the decision of the Karnataka High Court holding that the amount received on account of shares from various shareholders be treated as business income was reversed. The impugned order also made reference to the unreported decision of this court in Idea Cellular Limited v. Union of India (Writ Petition (Lodg) No. 1462 of 2013 decided on September 12, 2013) wherein, this court while dealing with issue of non-granting of stay of demand in its writ jurisdiction has observed that any benefit which is received on capital account cannot be subject matter of Income-tax under section 28(iv) of the Act. Thus, the appeals of the Revenue were dismissed by following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Tribunal. Therefore, no occasion to consider the question as prayed for arises. (c) In any case, we may point out that the amendment to section 68 of the Act by the addition of proviso thereto took place with effect from April 1, 2013. Therefore, it is not applicable for the subject assessment year 2012- 13. So for as the pre-amended section 68 of the Act is concerned, the same cannot be invoked in this case, as evidence was led by the respondents- assessees before the Assessing Officer with regard to identity, capacity of the investor as well as the genuineness of the investment. Therefore, admittedly, the Assessing Officer did not invoke section 68 of the Act to bring the share premium to tax. Similarly, the Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax (Appeals) to hold that share premium is capital receipt and therefore, cannot be taxed as income. This conclusion was reached by the impugned order following the decision of this court in Vodafone India Services Pvt. Ltd. (supra) and of the apex court in G. S. Homes and Hotel P. Ltd. (supra). In both the above cases the court has held that the amount received on issue of share capital including premium are on capital account and cannot be considered to be income. (b) It is further pertinent to note that the definition of income as provided under section 2(24) of the Act at the relevant time did not define as income any consideration received for issue of share in excess of its fair market value. This came into the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
