TMI Blog2023 (1) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 1956. But in factual matrix both the judgments are not similar with assessee s fact. Section 68 is governed by the four necessary ingredients and one of them is existence of the party. In any case the existence of the party in question. In the companies act there are different process to restore the companies removal of strike off. The assessee was unable to produce any documents in support of their action to restore the donor-company before the judicial authority. Accordingly, the question was unanswered related to the identity of the corporate bodies to prove the existence related the transaction of assessee. We find no infirmity in the order of the ld. CIT(A). So, the addition made by the ld. AO is upheld. Appeal of the assessee is dismissed. - I.T.A. No.120/Asr/2018 - - - Dated:- 20-12-2022 - Dr. M. L. Meena, Accountant Member And Sh. Anikesh Banerjee, Judicial Member For the Appellant : Sh. S.K. Vatta, CA. For the Respondent : Smt. Ratinder Kaur, Sr. DR ORDER PER:ANIKESH BANERJEE, JM: The impugned appeal of the assessee is instituted in respect of addition of Rs.8 lacs as made u/s 68 read with section 115BBE and 115BBC of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modify any grounds of appeal during the appeal proceedings. 2. Brief fact of the case is that the assessee has received corpus donation from the following companies. i. Burlington Mercantile (P) Ltd. Rs.2,00,000/- ii. Pentium Capital Management (P) Ltd. Rs.3,00,000/- iii. BKN Consultancy Service (P) Ltd. Rs.3,00,000/- The addition was made u/s 68 and the tax was levied u/s 115BBE and 115BBC of the Act on the ground that the said entities are being presently struck off record of registered companies. The revenue authorities have treated these three entities as Shell Company . During assessment proceedings the verification was completed by the ld. AO. The notice u/s 133(6) was issued accordingly the verification was duly completed by the three corporate bodies. The financial transaction was through banking channel. The credentiality was verified from financial statement, filed the return u/s 139 existence of PAN was submitted during the verification. But the company was struck off by the order of Register of Company (in short ROC) a per Section - 248, Companies Act, 2013. So, the identity of the party is in question. The Corporate body is artificial juridical pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t so as to satisfy the compliance of the conditions for GSR spending. 4.13 Further, I find that the judicial decisions cited by the appellant on this issue are not applicable on account of differences in the factual matrix of the present case. It is not a case where small donations have been received were and it was difficult keep the record of their names and addresses. Rather, it is a case where donations have been received from corporate entities by cheque but their whereabouts could not be proved by the appellant either in the course of assessment proceedings or in the course of present proceedings. 4.14 I find that appellant has failed to bring on record any further evidence to controvert the findings given by the AO on this issue. The appellant has merely reiterated the fact that confirmation is from these companies have been filed, along with their PAN and bank account details. However, the fact that these companies are defunct and their names have been struck off by the Registrar of Companies has not been disputed by the appellant with irrefutable evidence. The government has taken in the recent past strong action against these shell companies, which have been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. (2) Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent members in terms of paid-up share capital, file an application in the prescribed84b manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in sub-section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner: Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing in sub-section (2) shall apply to a company registered under section 8. (4) A notice issued under sub-section (1) or sub-section (2) shall be published in the prescribed 84c manner and also in the Official Gazette for the information of the general public. (5) At the expiry of the time mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he register. So, the existence of the donors are in question. The counsel for the assessee had failed to file the effective date of striking off the companies and also placed reliance on the judgment of the Hon ble Apex Court and the ITAT, Delhi, supra . The ITAT Delhi Bench dated 08/02/2017 in case of Patanjali Yogpeeth to support the proposition that corpus donation is nature of capital receipt, which are not liable for tax as income. In the case of Hon able Apex Court held that Appeal proceedings can continue even in case of company whose name has been struck off from Register of Company under section 560(5) of the Companies Act, 1956. But in factual matrix both the judgments are not similar with assessee s fact. Section 68 is governed by the four necessary ingredients and one of them is existence of the party. In any case the existence of the party in question. In the companies act there are different process to restore the companies removal of strike off. The assessee was unable to produce any documents in support of their action to restore the donor-company before the judicial authority. Accordingly, the question was unanswered related to the identity of the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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