TMI Blog2019 (1) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, copy of PAN card and annual report of the company with respect to M/s Alka Securities Ltd. are available - Identical documents are available with respect to M/s Alpha Graphics India Ltd. and Alka Broking Ltd.. Similarly, identical documents are available in the paper book, filed by the assessee with respect to remaining investing companies/entities. It is not the case that new document has been filed before the Tribunal for the first time. The material facts available on record clearly established that the requirement of section 68 has been duly fulfilled by the assessee. - Decided against revenue. - ITA NO. 5904/Mum/2017 - - - Dated:- 9-1-2019 - Shri Joginder Singh, Vice President And Shri N.K. Pradhan, Accountant Member For the Revenue : Shri Satischandra Rajore DR For the Assessee : Shri Vishnu Agarwal Shri Ankush Agarwal-AR ORDER Per Joginder Singh (Vice President) The Revenue is aggrieved by the impugned order dated 29/06/2017 of the Ld. First Appellate Authority, Mumbai, deleting the addition on account of share capital/share premium amounting to ₹ 2,15,00,000/- made under section 68 of the Income Tax Act, 1961 (hereinafter the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year : Provided that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless- (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided further that nothing contained in the first proviso shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB)of section 10. 2.2. As per section 68 of the Act, onus is upon the assessee to discharge the burden so cast upon. First burden is upon the assessee to satisfactorily explain the credit entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by cheques may not be always sacrosanct. In the present appeal, the assessee duly fulfilled the conditions enshrined u/s 68 of the Act and produced necessary evidence for its claim. 2.3. The ratio laid down in ACIT vs Rajeev Tandon 294 ITR (AT) 219 (Del.), which was confirmed by Hon ble High Court , in 294 ITR 488, supports the case of the Revenue. Identical ratio was laid down in CIT vs Anil Kumar 392 ITR 552 (Del.), wherein it was held that mere identification of the donor and movement of gift through banking channel is not sufficient to prove the genuineness of gift. If the provision of section 68 of the Act is analyzed with the facts of the case and the discussion made above, it is noted that the assessee declared income of ₹ 13,190/- in its return filed on 31/10/2007 and the original assessment was framed under section 143(3) of the Act on 06/11/2009 accepting the return income, subsequently, notice under section 148 dated 14/03/2014 was issued to the assessee on the basis of share capital/premium received from two parties namely M/s Alka Diamond Industries ltd. (₹ 10 lakhs) and M/s Javda India Impex Ltd. (₹ 5 lakhs). In response to the notices under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout further probe to prove contrary the addition under section 68 in the hand of the assessee cannot be made. In the present case, the assessee has also discharged the primary onus cast upon it by offering complete explanation of the transactions of share application money received along with documentary evidence to prove the identity, genuineness and creditworthiness of the investor companies; which are the essential conditions required to be fulfilled under section 68 of the Act. Further the Assessing Officer has also conducted independent inquiry by issuing notices under section 133(6) of the Act to the share applications and they have duly complied to the same by submitting all the details called for. Hence, when the source of funds has been explained in the hands of the said investing companies and no addition having been made in their respective hands; addition under section 68 of the Act in the hands of the assessee cannot be sustained. In view of the above, discussion on the facts of the case and the submission of the assessee and having regard to the decision of courts and judicial precedents as noted above, the addition made by the Assessing Officer of the share applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 133(6) of the Act. Thus, this decision also may not help of the Revenue being on different facts. As mentioned earlier the addition of ₹ 15 lakhs was merely made on the basis of statement made by the one person which was later on retracted by him with the help of sworn affidavit. The copy of the share application form, copy of confirmation of share holders, copy of bank statement, copy of PAN card and annual report of the company with respect to M/s Alka Securities Ltd. are available at pages 131 to 200 of the paper book. Identical documents are available from pages 201 to 232 with respect to M/s Alpha Graphics India Ltd. Identically, in the case of M/s Alka Broking Ltd., the documents are available at pages-233 to 259 of the paper book. Similarly, identical documents are available in the paper book, filed by the assessee with respect to remaining investing companies/entities. It is not the case that new document has been filed before the Tribunal for the first time. The material facts available on record clearly established that the requirement of section 68 has been duly fulfilled by the assessee. It is further noted that even the Ld. First Appellate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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