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2012 (10) TMI 616 - HC - Income TaxUnexplained share capital - ITAT deleted the addition - Held that - As decided in COMMR.OF INCOME TAX VERSUS M/S LOVELY EXPORTS(PVT)LTD 2008 (1) TMI 575 - SUPREME COURT OF INDIA if the share application money is received by the assessee-Company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to re-open their individual assessments in accordance with law & not to be treated as undisclosed income. As in the present case the names, addresses and PAN numbers of the deposits were provided to the AO, which were sufficient to disclose the identity of the persons. The AO did not question their identity and did not summon them, thus the department is free to proceed to reopen the individual assessment of the depositors but it cannot be regarded as undisclosed income - in favour of assessee.
Issues:
Income Tax Appeal under Section 260-A of Income Tax Act, 1961 - Addition of unexplained share capital under section 68 of the Act - Identity of depositors not established - Whether addition justified. Analysis: 1. Issue of Unexplained Share Capital Addition: The case involved an Income Tax Appeal under Section 260-A of the Income Tax Act, 1961, regarding the addition of unexplained share capital under section 68 of the Act. The Assessing Officer had found that the assessee reflected Rs. 26,00,000/- in the balance sheet under the head 'share application money pending allotment' but could not file confirmation of share applications during assessment proceedings. Consequently, the entire amount was added to the assessee's income. 2. Confirmation of Depositors' Identity: The CIT (A) upheld the addition, stating that the depositors had deposited cash in their bank accounts before issuing cheques for share allotment. However, the Tribunal allowed the appeal based on the information provided by the assessee regarding the names, addresses, and PAN of the persons who applied for share allotment. The Tribunal emphasized that this information was sufficient to disclose the identity of the depositors, and hence, no addition was warranted. 3. Legal Precedents and Arguments: The assessee relied on case laws like CIT vs. Lovely Exports (P) Ltd and others to support their position that providing names, addresses, and PAN numbers of depositors was adequate to establish identity. The Revenue argued that without producing the depositors, their creditworthiness and identity remained unproven, justifying the addition. 4. Judicial Interpretation: The High Court analyzed the facts and legal contentions, noting that the Assessing Officer did not doubt the identity or creditworthiness of the depositors but made the addition due to the lack of confirmation. The Court held that the assessee had discharged the onus by providing necessary details, and if doubts persisted, the Assessing Officer could have summoned the depositors for verification. 5. Application of Legal Precedents: The Tribunal relied on the judgment in CIT vs. Lovely Exports (P) Ltd, emphasizing that if share application money is received from alleged bogus shareholders, the department can proceed to reopen individual assessments but cannot treat it as undisclosed income of the company. The High Court applied this principle to the present case, where the details provided by the assessee were deemed sufficient to establish the depositors' identities. 6. Decision and Conclusion: Ultimately, the High Court concluded that the question raised in the appeal was settled by the Supreme Court's judgment in CIT vs. Lovely Exports (P) Ltd. The Court held in favor of the respondent-assessee, dismissing the Income Tax Appeal. The judgment reiterated that while the department could reopen individual assessments of depositors, the share capital could not be treated as undisclosed income of the company based on the information provided. In summary, the High Court's judgment emphasized the importance of establishing the identity of depositors in cases of unexplained share capital additions under section 68 of the Income Tax Act, highlighting that providing necessary details such as names, addresses, and PAN numbers could suffice to discharge the assessee's onus. The decision aligned with legal precedents and clarified the treatment of such cases, ultimately ruling in favor of the respondent-assessee based on established legal principles.
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