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2018 (12) TMI 972 - AT - Income TaxAddition u/s 68 - assessee has not substantiated the genuineness of fresh share capital and share premium applied for and allotted by the assessee company - Held that - As decided in ITO, WARD-13 (1) , KOLKATA VERSUS M/S ANAND ENTERPRISES LTD. 2018 (9) TMI 1779 - ITAT KOLKATA AO had erroneously invoked the provisions of section 68 of the Act to the facts of the instant case, which, in our considered opinion, are not at all applicable herein. This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties. In the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash. Hence we hold that provision of section 68 of the Act are not applicable in the instant case and accordingly the entire addition deserves to be deleted - decided in favour of assessee.
Issues Involved:
1. Whether the order of the Ld. CIT(A) is arbitrary, illegal, and bad in law. 2. Whether the Ld. CIT(A) erred in deciding the appeal ex-parte without allowing proper opportunity to the appellant. 3. Whether the Ld. CIT(A) erred in confirming the addition made by the AO under Section 68 of the Income Tax Act, 1961, despite the assessee providing necessary evidence. 4. Whether the provisions of Section 68 of the Act apply when shares are allotted for consideration other than cash. Issue-wise Detailed Analysis: 1. Arbitrary, Illegal, and Bad in Law: The revenue contended that the order of the Ld. CIT(A) was arbitrary, illegal, and bad in law. However, the tribunal did not find merit in this contention. The tribunal focused on the substantive issue of whether Section 68 of the Act was applicable in the given circumstances. 2. Ex-parte Decision by Ld. CIT(A): The revenue argued that the Ld. CIT(A) erred in deciding the appeal ex-parte without giving the appellant a proper opportunity to present their case. The tribunal acknowledged this procedural lapse but chose to address the substantive legal issue directly, given that the facts were not in dispute and the issue was a legal one. 3. Confirmation of Addition under Section 68: The revenue claimed that the Ld. CIT(A) erred in confirming the addition made by the AO under Section 68, despite the assessee providing all necessary evidence, including PAN, acknowledgment of return filing by shareholders, agreements, balance sheets, and identity proof. The tribunal reviewed the evidence submitted by the assessee, including details of share capital raised, Form No. 3, and the list of allottees. The tribunal found that the assessee had duly discharged its onus to prove the identity and creditworthiness of the share applicants and the genuineness of the transaction. 4. Applicability of Section 68 for Non-Cash Consideration: The core issue was whether Section 68 of the Act applies when shares are allotted for consideration other than cash. The tribunal referred to the case of ITO vs. M/s. Anand Enterprises Ltd., where it was held that Section 68 does not apply to transactions where shares are issued for consideration other than cash. The tribunal noted that the assessee had issued shares in exchange for shares of other companies, and there was no receipt of any sum of money. The tribunal cited the Hon'ble Supreme Court's decision in Shri H.H. Rama Varma vs. CIT, which clarified that 'any sum' means 'sum of money'. The tribunal also referred to the Hon'ble Allahabad High Court's decision in CIT vs. Sohanlal Singhania and the Hon'ble Jurisdictional High Court's decision in Jatia Investment Company vs. CIT, which supported the view that Section 68 applies to cash transactions and not to barter transactions. Conclusion: The tribunal concluded that the provisions of Section 68 were erroneously invoked by the AO. The assessee's transactions were legitimate barter transactions involving the exchange of shares without any cash flow. Therefore, the addition made under Section 68 was deleted. The tribunal allowed the appeal of the assessee. Result: The appeal of the assessee was allowed, and the addition made under Section 68 was deleted.
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