TMI Blog2021 (6) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court decision in the case of Shri Kapurchand Shrimal [ 1981 (8) TMI 2 - SUPREME COURT] for the proposition that it is the duty of appellate authority to correct the errors in the order of authority below and remand the matter with or without direction unless prohibited by law. Appeal by the Revenue stands partly allowed for statistical purposes. - I.T.A. No. 4314/Mum/2017 - - - Dated:- 3-6-2021 - Shri Shamim Yahya (AM) And Shri Pavankumar Gadale (JM) For the Assessee : Shri Dalpat Shah For the Department : Shri Ajit Kumar Shrivastava ORDER PER SHAMIM YAHYA (AM) :- This is an appeal by the Revenue and pertains to assessment year 2012- 13. 2. The grounds of appeal read as under :- 1. On the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojections with actuals. The details were not furnished. Furthermore, apart from questioning the basis of share premium the assessing officer clearly noted that the creditworthiness of the investors has not been established. That the same was in question, and the assessee has not filed the transaction details and relevant bank account also. He noted that assessee has stated that the details referred shall be furnished shortly. But till the date of order they were not supplied. Hence the assessing officer proceeded to hold the transaction to be non-genuine and in view of assessee s evasive replies he considered the transaction to be a sham transaction. Hence he added o the same as unexplained under section 68 of the I.T. Act. 4. Against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions in allowing this ground of appeal. 1. CIT Vs P. Mohanakala (2007) 161 Taxman 169 (SC) 2. CIT Vs M/s. Green Infra Limited dated 16.1.2017 of Hon'ble Mumbai High Court in ITA No. 1162 of 2014. 3. ACIT Vs M/s. Gagandeep Infrastructure P. Ltd. 2014(11) TMI 479 of Hon'ble Mumbai ITAT. . 4. DCIT Vs. M/s. Overseas Infrastructure Alliance (I) P. Ltd. (ITA No. 1470/Mum/2011) of Hon. Mumbai ITAT. Thus, since the Hon. Jurisdictional High Court has held that share premium cannot be taxed as a trading receipt, the Ground of Appeal is allowed. 6. Against this order the Revenue is an appeal before us. 7. We have heard both the parties and perused the records. We note that the assessing officer in this case has made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reader of the appellate order. She has further referred to the decision of Bombay High Court in the case of Vodafone (supra) and the CBDT circular in connection with share premium falling under capital field. This decision was rendered in the case of foreign direct investment and how it is applicable to the present assessee has not at all been discussed by the learned CIT(A). As regards the decision of Bombay High Court in the case of Green Infra Ltd. (supra), Gagandeep Infrastructure P. Ltd. and others noted by the learned CIT(A), these were with reference to share premium where that creditworthiness of the receipt was not questioned. Here as detailed hereinabove the creditworthiness has been very much questioned by the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfactory. Such opinion found itself constitutes a prima facie evidence against the assessee, viz., the receipt of money, and if the assessee fail to rebut the said evidence the same can be used against the assessee by holding that it was a receipt of an income nature. In the case in hand the authorities concurrently found the explanation offered by the assessee unacceptable. The authorities upheld the opinion formed by the Assessing Officer that the explanation offered was not satisfactory. The assessee did not take the plea that even if the explanation is not acceptable the material and attending circumstances available on record do not justify the sum found credited in the books to be treated as a receipt of an income nature. The burde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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