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2018 (10) TMI 1122 - AT - Income TaxAddition u/s 68 - unexplained capital receipt - onus on the assessee to prove to satisfaction of the A.O the nature and source of the credits in the books of accounts. - Admission of additional evidences by hte CIT(A) - Held that - All the aforesaid evidences have been filed at the instance of the Ld.CIT(A) and therefore the said evidence is covered by Rule 46A(4) which does not require to satisfy the conditions of Rule 46A(1) of Income-tax Rules 1962. We further notice that under the provisions of section 250(4) the CIT(A) has wide discretion to make such further enquiry as he thinks fit or to direct the AO to make further enquiry in the light of grounds taken by the assessee. Even rule 46A(4) clarifies that nothing contained in Rule 46A(1) shall curtail the CIT(A) s power to direct the production of any document or the examination of any witness to enable him to dispose of the appeal Definition of income as provided u/s 2(24) of the Act at the relevant time did not define as income in consideration received for issue of shares in excess of its fair market value. This came into the statute wef 01-04-2013 and thus would have no application to the share premium received by the respondent assessee in the previous year relevant to the AY prior to 2013-14. Similarly the amendment to section 68 of the Act by addition of Proviso was made subsequent to previous year relevant to the subject assessment year and cannot be invoked. Therefore we are of the considered view that even under this count no addition can be made towards share premium u/s 68 of the Act as it is on account of capital a receipt does not come within the ambit of definition of income . CIT(A) has rightly deleted the additions - decided in favour of assessee.
Issues Involved:
1. Admission of additional evidence by the CIT(A) under Rule 46A of the Income-tax Rules, 1962. 2. Onus on the assessee to prove the nature and source of credits in the books of accounts. 3. Deletion of addition of ?10 crores by CIT(A) concerning share application money received from Xander Group. 4. Justification of share premium charged over and above the intrinsic value of shares. 5. Explanation of the nature and source of ?10 crores received from Xander Group. Issue-wise Detailed Analysis: 1. Admission of Additional Evidence by the CIT(A) under Rule 46A of the Income-tax Rules, 1962: The revenue contended that the CIT(A) erred in accepting additional evidence without the assessee fulfilling the conditions under Rule 46A. The CIT(A) directed the assessee to file details regarding the creditworthiness of the subscriber, which were then forwarded to the AO for examination. The AO objected to the admission of these additional evidences. However, the CIT(A) held that under section 250(4) and Rule 46A(4), the CIT(A) has the discretion to call for additional evidence to dispose of the appeal. The Tribunal upheld the CIT(A)'s decision, stating that the additional evidence was admitted correctly and the AO was given an opportunity to comment on it. 2. Onus on the Assessee to Prove the Nature and Source of Credits in the Books of Accounts: The AO held that the assessee failed to prove the identity, capacity, and genuineness of the transactions related to the share application money. The AO treated the share application money as income from undisclosed sources under section 68 of the Income-tax Act, 1961. The Tribunal noted that the assessee provided sufficient evidence, including the identity of the investor, bank statements, and confirmation letters, thereby discharging its initial burden of proof. 3. Deletion of Addition of ?10 Crores by CIT(A) Concerning Share Application Money Received from Xander Group: The CIT(A) deleted the addition made by the AO, stating that the assessee provided comprehensive details about Xander Group's identity and creditworthiness. The Tribunal agreed with the CIT(A), noting that the AO did not bring any cogent evidence to disprove the genuineness of the transaction. The Tribunal found that the AO's addition was based on suspicion and surmises without substantial evidence. 4. Justification of Share Premium Charged Over and Above the Intrinsic Value of Shares: The AO questioned the high share premium of ?9,99,900 per share, arguing that it lacked justification given the company's business and asset base. The CIT(A) observed that the share valuation was based on the intrinsic value of the company's development rights and future potential, not merely its balance sheet. The Tribunal upheld this view, stating that the valuation of shares depends on various factors, including goodwill and business potential, and not just book value. 5. Explanation of the Nature and Source of ?10 Crores Received from Xander Group: The AO doubted the genuineness of the transaction, suggesting it was a way to introduce the assessee's own money under the guise of capital. The CIT(A) and the Tribunal found that the assessee provided sufficient evidence to prove the identity, genuineness, and creditworthiness of Xander Group. The Tribunal noted that the AO failed to utilize the statutory mechanism to verify the transaction through competent authorities and relied on suspicion without substantial evidence. Conclusion: The Tribunal dismissed the revenue's appeal, upholding the CIT(A)'s decision to delete the addition of ?10 crores made by the AO. The Tribunal found that the assessee satisfactorily proved the identity, genuineness, and creditworthiness of the investor and that the AO's addition was based on suspicion and without substantial evidence. The Tribunal also confirmed that the CIT(A) correctly admitted additional evidence under Rule 46A.
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