2009 (7) TMI 846 - HC - Income Tax

Unexplained income - Addition of income - In so far as the assessee-company is concerned, it is not disputed that money was paid to it towards the aforesaid share application money, by means of cheques - There is no dispute that this company had subscribed a sum of Rs. 25 lakhs for allotment of shares - It was pointed out that the court did not find any merit in the special leave petition for the simple reason that if the share application money was received by the assessee-company from the alleged bogus shareholders, whose names were given to the Assessing Officer, then, the Department was free to proceed to reopen their individual assessments in accordance with law - Thus, the conclusion was that the amount cannot be regarded as undisclosed income of the recipient assessee-company - Decided in the favour of the assessee

Summary

Issues:
1. Whether the share application money received by the assessee-company from M/s. Diamond Proteins Ltd. is unexplained income under section 68 of the Income-tax Act, 1961?
2. Whether the decision of the Commissioner of Income-tax (Appeals) deleting the addition made by the Assessing Officer is justified?
3. Whether the judgment in the case of CIT v. Lovely Exports P. Ltd. is applicable to the present case?

Analysis:

Issue 1:
The assessee-company received a sum of Rs. 25 lakhs as share application money from M/s. Diamond Proteins Ltd. The Assessing Officer treated this amount as unexplained income under section 68 of the Act. However, the Commissioner of Income-tax (Appeals) allowed the appeal, deleting the addition. The Income-tax Appellate Tribunal affirmed this decision, noting that there was no dispute regarding the existence of M/s. Diamond Proteins Ltd. and the subscription of the said amount. The Tribunal referred to the decision in the case of CIT v. Lovely Exports P. Ltd., where it was established that if share application money was received from alleged bogus shareholders, the Department could proceed to reopen their individual assessments. Following this precedent, the Tribunal held that the share application money cannot be considered undisclosed income of the recipient assessee-company.

Issue 2:
The Tribunal found no substantial question of law arising in the appeal, indicating that the decision of the Commissioner of Income-tax (Appeals) to delete the addition was justified based on the facts and legal principles presented before them. Therefore, the Tribunal dismissed the appeal.

Issue 3:
The judgment in the case of CIT v. Lovely Exports P. Ltd. was crucial in determining the treatment of share application money as undisclosed income under section 68 of the Income-tax Act. The Tribunal applied the principles established in this case to the present matter, emphasizing that the Department could take action against alleged bogus shareholders rather than attributing the share application money to the recipient assessee-company. By following this precedent, the Tribunal upheld the decision of the Commissioner of Income-tax (Appeals) in deleting the addition made by the Assessing Officer.

In conclusion, the Tribunal dismissed the appeal, affirming the decision to delete the addition of share application money made by the Assessing Officer, based on the application of legal principles and precedents, particularly the judgment in the case of CIT v. Lovely Exports P. Ltd.