TMI Blog2017 (7) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ] Taking into consideration all the company cannot be assessed for the income tax to find out the person who has applied as share holder. The view of taken by the Tribunal is just and proper, therefore, the issue is answered in favour of the assessee and against the department. - D.B. Income Tax Appeal No. 419/2008 - - - Dated:- 31-7-2017 - MR. K.S. JHAVERI AND MR. INDERJEET SINGH, JJ. For The Appellant : Ms. Parinitoo Jain with Ms. Shiva Goyal For The Respondent : Mr. Ananat Kasliwal Judgment 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the tribunal has allowed the appeal of the assessee as well as appeal of the department for statistical purposes. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case are that the company which was originally incorporated on 26.06.1981 as per the Memorandum of Association and later on the company changed its name as Jalan Hard Coke w.e.f. 10.04.1992. During the year underconsideration the company had incurred its share capital by ₹ 26795000/- and had shown interest income earned on surplus fund amounting to ₹ 502394/-. The appellant filed the details of the share capital money before the AO vide its letter No.JHCL/99-2000 dated 10.08.1999. The details filed that there are number of share applicants who applied for the allotment of the share and most of them were residing in Delhi and each application was for ₹ 2 lacs each and the payment invariably was made by Dds. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contents are of very routine nature. Most of these are not attested by the Notary Public and even were the same are attested they are not in accordance with the requirements laid down in the CPC in order XIS, XI, XIA, XIII XIV at page 449 450 of the Code of Civil Procedure, 1908 by PRAFULL C.PANT, First Edition, 1998 as the Notary Public before whom the affidavit has been sworned has not placed the necessary certificate at the bottom of the affidavit as required by the aforementioned Rules. 5. The Tribunal while allowing the issue has held against the department. 6. Counsel for the appellant contended that in view of the fact that the amount which was received on the share applications was kept by the company and the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 68 of the Act, the assessee cannot be forced to prove the source of the source. The law on this subject is also settled by numerous decisions. The alleged report of the Inspector of the Department who is stated to have visited at the given addresses of the share applicants was never put or confronted to the assessee. The cumulative effects of these reasons is that the impugned addition cannot be added in the hands of the assessee company. Accordingly, we order to delete the entire additions and allow the appeal of the assessee. 6. In our view, the decision of the Supreme Court in the case of CIT vs. Lovely Export Pvt. Ltd. reported in (2009) 319 ITR (St.) 5 (SC) held as under:- Can the amount of share money be regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional burden was on the Department to show that even if share application did not have the means to make investment, the investment made by them actually emanated from the coffers of the assessee so as to enable is to be treated as the undisclosed income of the assessee. In the absence of such findings, addition could not be made in the income of the assessee under Section 68 of the Act. 9. We have heard Mr. Anuroop Singhi counsel for the appellant and Mr. Naresh Gupta counsel for the respondent. 10. Taking into consideration the observations made by the twin decisions as observed by the Tribunal that all the share applicants stand identified. The assessee has provided PANs of the share applicants. The mode of payment has also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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