TMI Blog2018 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... - Decided in favour of assessee. - ITA 263/2018 - - - Dated:- 28-2-2018 - S. Ravindra Bhat And A. K. Chawla, JJ. For the Appellant : Mr. Sanjay Kumar with Mr. Rahul Chaudhary, Standing Counsels For the Respondent : None ORDER 1. The Revenue appeals concurrent factual findings with respect to the lack of justification in the addition made to the assessee s income for A.Y. 2007-08 under Section 68 of the Income Tax Act, 1961 (for short the Act ). 2. The Assessing Officer (AO) noted that the assessee was a sick company during the relevant assessment year but had nevertheless garnered substantial amounts to the extent of ₹ 12 crores invested by two share applicants i.e. M/s Khaitan United Sales Pvt. Ltd. and M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guous findings of learned CIT(A). Only written note on decisions u/s.68 is filed by Ld. CIT-DR. We have been taken through the records by assistance of representative of both sides. We have gone through assessee's paper book running into 57 pages placed on records. Our findings ground wise is given herein after. Apropos revenue's first ground assailing deletion of addition made u/s 68, it is found that assessee's case on given facts and documents specially unchallenged shareholder affidavits and in view of lack of enquiry by the AO during assessment and remand proceedings, is squarely covered by Hon'ble Apex court decision in case of Lovely exports 216 CTR 195 wherein it is held that: 2. Can the amount of share money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of credible material. The onus, thereafter, shifts to the assessee to prove that the gift is genuine and if the assessee is unable to proffer a credible explanation, the Assessing Officer may legitimately raise an inference against the assessee. If, however, the assessee furnishes all relevant facts within his knowledge and offers a credible explanation, the onus reverts to the revenue to prove that these facts are not correct. The revenue cannot draw an inference based upon suspicion or doubt or perceptions of culpability or on the quantum of the amount, involved particularly when the question is one of taxation, under a deeming provision. Thus, neither suspicion/doubt, nor the quantum shall determine the exercise of jurisdiction by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incriminating material is there nor shareholders are found to be non traceable. 5. In this case, the assessee was a sick company; it pulled out of the woods in 2010. To tide over its financial sickness, apparently, it sought the help of the share applicants. The identity of those share applicants was clearly revealed. As noted by both the lower appellate authorities, no suspicion is attached to the said share applicants; moreover, the AO did not conduct any further enquiry except resting his conclusions on surmises. 6. In these circumstances, the Court is of the opinion that the concurrent findings rendered are purely factual. No substantial question of law arises. The appeal is, therefore, dismissed. - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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