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2018 (7) TMI 1610 - AT - Income TaxAddition towards undisclosed income being write back of redeemable non cumulative preference shares - addition on the basis of admission of the assessee during the course of search - Held that - In this case, facts are identical to the case already considered by the co-ordinate bench in the case of Nalwa Chrome Pvt Ltd. 2017 (3) TMI 820 - ITAT MUMBAI . The AO has made addition towards redeemable non cumulative preference shares u/s 28(iv) of the Income-tax Act, 1961. Since, the co-ordinate bench has already taken a view that share capital receipt cannot be taxed either u/s 28(iv) or 41(1) of the Act. Therefore, being consistent with the view taken by the co-ordinate bench, we are of the considered view that write back of preference share capital cannot be taxed u/s 28(iv) of the Income-tax Act, 1961. The Ld.CIT(A), after considering relevant facts has rightly deleted addition made by the AO. We do not find any error in the order of the CIT(A). Hence, we are inclined to uphold the findings of CIT(A) and dismiss the appeal filed by the revenue.
Issues Involved:
1. Deletion of addition on account of Redeemable Non-Cumulative Preference Shares. 2. Legality of reversing or redeeming Preference Shares under the Companies Act, 1956. 3. Classification of reduction in Preference Shares Capital as Business Income or Capital Account. Issue-wise Detailed Analysis: 1. Deletion of Addition on Account of Redeemable Non-Cumulative Preference Shares: The revenue challenged the deletion of an addition of ?8.75 crores made by the Assessing Officer (AO) on account of Redeemable Non-Cumulative Preference Shares issued on 02/06/2003. The AO considered this amount as a benefit arising out of business activity and chargeable to tax under Section 28(iv) of the Income Tax Act, 1961. The AO's decision was based on the fact that the assessee admitted this amount as undisclosed income during a search operation. However, the Commissioner of Income Tax (Appeals) [CIT(A)] deleted this addition, holding that the preference share capital received in the financial year 2003-04 was capital in nature and could not be taxed under Section 28(iv). 2. Legality of Reversing or Redeeming Preference Shares under the Companies Act, 1956: The AO argued that the preference shares were no longer payable and thus constituted a taxable benefit. The assessee countered that the preference shares were issued in 2003-04 and were redeemable only before 2023, as per the provisions of Section 80 of the Companies Act, 1956. The CIT(A) agreed with the assessee, stating that the preference shares could not be written back in the books of account and were compulsorily redeemable. The CIT(A) emphasized that even if the shares were considered no longer redeemable, they remained a capital receipt and could not be taxed as business income. 3. Classification of Reduction in Preference Shares Capital as Business Income or Capital Account: The AO classified the reduction in preference shares capital as business income under Section 28(iv), arguing that it was a benefit derived from business activity. The assessee contended that the receipt was capital in nature and could not be taxed as business income. The CIT(A) and the Income Tax Appellate Tribunal (ITAT) supported the assessee's position, citing various judicial precedents, including the Bombay High Court's decision in Vodafone India Services Ltd. The ITAT reiterated that share capital receipts could not be taxed under Sections 28(iv) or 41(1) of the Income Tax Act, 1961, and upheld the CIT(A)'s decision to delete the addition. Conclusion: The ITAT dismissed the revenue's appeal, upholding the CIT(A)'s decision to delete the addition of ?8.75 crores. The ITAT confirmed that the preference shares were capital receipts and could not be taxed as business income under Section 28(iv). The judgment emphasized that legal provisions and judicial precedents supported the classification of the preference shares as capital receipts, not taxable under the cited sections of the Income Tax Act.
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