2019 (4) TMI 1099 - AT - Income Tax

Addition u/s 68 towards share capital and share premium - notices issued u/s 133(6) by the AO were duly served on 12 subscribing companies - HELD THAT - AR fairly stated that the various evidences submitted by the assessee as detailed supra were not even considered by the AO as the assessment was made with a pre-determined mindset that the share capital and premium received by the assessee was not genuine. Hence he prayed for setting aside of this issue to the file of AO, which was also agreed by the DR. Hence in these peculiar facts and circumstances, we deem it fit and appropriate, in the interest of justice and fairplay, to remand this issue to the file of AO for denovo adjudication and decide the same in accordance with law uninfluenced by earlier decision taken in this regard. Grounds raised by the revenue are allowed for statistical purposes.

Summary

Issues:
1. Justification of upholding the addition made under section 68 of the Act towards share capital and share premium.

Detailed Analysis:
The appeal was against the order of the Commissioner of Income Tax (Appeals) concerning the addition made under section 68 of the Act towards share capital and share premium. The primary issue was whether the Commissioner was justified in upholding the addition of ?1,80,00,000. The assessee had raised share capital by issuing 40000 shares with a premium of ?440 each, totaling ?1,80,00,000. The Assessing Officer (AO) noted that the assessee had not generated any revenue during the year and issued notices under sections 133(6) and 131 of the Act. However, the assessee did not respond, leading the AO to conclude that the source of the raised capital and the high premium remained unexplained, warranting the addition under section 68 of the Act.

The Commissioner observed that the assessee received share capital and premium from 12 related corporate bodies. The assessee submitted various details, including share application forms, bank statements, and other relevant documents. It was highlighted that all the share applicants were regularly assessed for income tax, and payments were made through their bank accounts. The subscribing companies were related entities, and they complied with all notices and provided necessary documents. The financial statements, IT return acknowledgments, and bank statements were furnished, demonstrating the legitimate sources of funds. The subscribing companies had ample capital and reserves, with investments made through proper banking channels. The Commissioner, after considering these evidences, deleted the addition towards share capital and premium.

During the hearing, the assessee's representative pointed out that the AO did not consider the submitted evidence and had a pre-determined mindset. Both parties agreed to remand the issue back to the AO for fresh adjudication, free from any prior influence. The Tribunal allowed the revenue's appeal for statistical purposes, emphasizing the need for a fair and unbiased assessment. Consequently, the appeal of the revenue was allowed for statistical purposes, and the matter was remanded back to the AO for a fresh decision.

In conclusion, the Tribunal's decision highlighted the importance of a fair assessment process and the need for the AO to consider all relevant evidence before making additions under section 68 of the Act. The case underscores the significance of proving the legitimacy of share capital and premium through proper documentation and compliance with regulatory requirements.