TMI Blog2018 (7) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... counting period(supra). CIT(A) has failed to consider all these relevant facts whilst accepting the assessee’s contentions going by only documentary evidence on record without applying human probabilities test hereinabove We therefore conclude that the CIT(A)’s findings do not deserve to be concurred with par se on merits qua genuineness and creditworthiness aspect. oming to the CIT(A)’s finding that such kind of a share premium is not taxable as revenue receipt, as per hon’ble apex court’s decision in Vodafone case (2012 (1) TMI 52 - SUPREME COURT OF INDIA) we are of the view that there is no dispute about the said settled legal position. The question that is involved in this appeal is altogether on a different footing. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessees dated 11.05.2018. The same stand returned back unserved with identical remark that no such entity has been found at this address . They are accordingly proceeded exparte. 2. Learned Departmental Representative states at the outset that the relevant facts involving in both these cases culminating in similar section 68 addition of the respective share premium seems to be neither genuine nor creditworthy; are identical. We thus take up former case ITA No.1200/Kol/2015 as the lead case. 3. The former assessee M/s Luxuri Vyapaar Pvt. Ltd carries trade and investment business in shares and finance. It filed its return of income on 10.08.2011 declaring income of ₹ 3,458/- only. The same stood processed u/s 143(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee s directors about the address proof, voter ID and residential proof., Income tax returns, bank statement in his return filed before ROC, any change in management and proof of identity, genuineness and creditworthiness of the above share applicants. He issued similar notices to the directors of some of the above said sixteen companies. 4. A perusal of the case file reveals that the said notices failed to evoke any response. The Assessing Officer therefore observed that all the above narrated facts sufficiently indicated that the share premium in question was neither genuine nor creditworthy. He quoted hon ble apex court s decision in CIT vs. Durga Prasad More[1971] 82 ITR 540 and Sumati Dayal vs CIT [1995] 80 Taxman 89/214 ITR 801 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of share premium is a capital receipt and don't give rise to any income. Thus the addition of share premium and capital as income u/s 68 is in contrary to said instruction issued by CBDT in light of Vodafone case. Hence the share capital and share premium is not an unexplained cash credit, hence the addition made under section 68 of ₹ 31,69,00,000 be deleted in full. I have gone through the annual accounts and is of opinion that the arguments of the AR about the dispute on disallowance u/s 14a read with rule 8D does not hold good that the major funds have been utilised by the assessee towards investments in share. These investments would earn income by way of dividend in future which is an exempt income. The administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probabilities test hereinabove We therefore conclude that the CIT(A) s findings do not deserve to be concurred with par se on merits qua genuineness and creditworthiness aspect. 7. Coming to the CIT(A) s finding that such kind of a share premium is not taxable as revenue receipt, as per hon ble apex court s decision in Vodafone case (supra) we are of the view that there is no dispute about the said settled legal position. The question that is involved in this appeal is altogether on a different footing. The assessee has failed to prove the genuineness and creditworthiness of its share premium in view of the above overwhelming circumstances raising serious doubts in view of multiple factual aspects hereinabove. We therefore are of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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