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TMI Blog2024 (3) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Order received from o/o PCIT-2, Kolkata (ii) On 09.05.2023: ASR send to O/o PCIT-2, Kolkata through Proper Channel (iii) On 11.05.2023: For making some clarifications letter received from o/o JCIT, Range- 5, Kolkata (iv) On 17.05.2023: After making necessary corrections, ASR has been further sent To the PCIT-2, Kolkata through Proper Channel (v) On 24.05.2023: Received copy of letter from the o/o JCIT, Range-5, Kolkata regarding sending of ASR to the o/o PCIT-2, Kolkata (vi) On 05.06.2023: For making corrections of draft ground of appeal, letter received from o/o PCIT-2, Kolkata (vii) On 06.06.2023: After making necessary corrections of draft ground of appeal has been further sent to the o/o PCIT-2, Kolkata through Proper Channel (viii) On 10.07.2023: Certificates for filing appeal u/s 253 of the IT Act has been received from o/o PCIT-2, Kolkata Kindly condone the said delay for filing 2nd Appeal." 2.1. Considering the condonation application and the reasons stated therein, we are satisfied that the Revenue was prevented for reasonable cause from filing the instant appeal within statutory time limit. We, therefore, condone the delay and admit the appeal for ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of various kinds. Thus, the decision of the Ld. NAFC is erroneous in holding that the raised share capital was not the assessee's own income. 4. Revenue shall always crave for adding or altering any ground on or before the date of hearing." 4. The facts in brief are that the assessee is a private limited company engaged in business. Income of Rs. 1,16,230/- declared in the return e-filed for AY 2012-13 furnished on 28.08.2012. Return was taken up for scrutiny and during the course of assessment proceedings, the Assessing Officer (in short ld. 'AO') noticed that the assessee has received share capital and share premium totalling to Rs. 2.45 Crore (share capital of Rs. 4.90 Lakh and share premium of Rs. 2,40,10,000/-). The assessee was asked to explain the nature and source. The assessee filed the copies of memorandum of association, Form 2 & 5 filed with the Registrar of Companies for raising share capital, PAN card, bank statement and balance sheets. Ld. AO observed that the share applicant companies have no track record or asset base and are merely zero balance sheet company with no visible future prospect justifying the high premium per share and which defies all com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the course of remand proceedings carried out on the direction of ld. CIT(A) remand report under Rule 46A of the Income Tax Rules, 1962 was issued on 24.04.2017 and the relevant extract of the said report which supports the claim of ld. Counsel for the assessee that identity and creditworthiness of the share applicants and genuineness of the transaction is proved is reproduced below: "In order to ascertain the identity creditworthiness and genuineness of transactions director of assessee company has been examined and cross verified with statement of accounts available in respective assessment folder and paper book for the purpose of preparation of Remand Report. Sri Parashmal Banthia director of M/s Digvijay Vinimay Private Limited said that allotment of equity shares were made on the basis of demand of the investor companies. Assessee company being a NBFC and engaged in lending money against interest was in need of fund to increase financial activity. Whatever, offered by investor companies was received and applied in lending against interest. He filed ITR of all investor companies for the AY 2016-17 and also scrutiny assessment order of two investor companies to substantiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares of Rs. 10/- each and premium of Rs. 490/-per share. 6.8. The remand report submitted under rule 46A in the case of appellant states that notice under section 133(6) issued to 11 out of 12 investors and compliance was received in most of the cases. 6.9. Summon under section 131 issued to all investor companies by Post. In compliance of summon directors of two investor companies appeared and statement recorded. In other cases most of the investor companies sought further time for personal appearances. No fresh summons issued against application for grant of adjournment. 6.10. The learned AO verified receipt of Rs. 2.45 crores against issue of 49,000 equity shares to 12 private companies during financial year 2011-12 as claimed by the appellant verified with documents available in paper book. No difference could be noticed by the learned AO. 6.11. On perusal of the balance sheet, the learned AO has made the observation that 91% of the capital was applied in the assets other than investment in equity shares" The appellant was also engaged in the business of share trading and reported interest income against unsecured loans provided. No fresh investment in unquoted shares w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth to make the investment in the equity share capital of the assessee company. Thus, the alleged transaction is not fit to be covered under the provisions of Section 68 of the Act. 11. We place reliance on the decisions of various Hon'ble Courts as follows: a) Hon'ble Jurisdictional High Court in the case of PCIT vs. Sreeleathers [2022] 448 ITR 332 (Calcutta). b) Hon'ble Supreme Court in the case of CIT vs. Lovely Exports Ltd. (2008) 216 CTR 195 (SC). c) Hon'ble Madhya Pradesh High Court in the case of PCIT vs. Chain House International (P) Ltd. [2018] 98 taxmann.com 47 (Madhya Pradesh). d) Hon'ble Bombay High Court in the case of CIT vs. Gagandeep Infrastructure (P) Ltd. 80 taxmann.com 272 (Bombay). 12. Respectfully following the ratio laid down by the Hon'ble Courts in the judgments referred herein above deciding in favour of the assessee(s) and on considering the facts of the instant case, we are inclined to hold that all the necessary documentary evidences have been placed on record which are sufficient enough to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction and the assessee has successfull ..... X X X X Extracts X X X X X X X X Extracts X X X X
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