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TMI Blog2010 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... , delay of 281 days in re-filing the appeal is condoned. Accordingly, application stands disposed of. ITA 917/2010 1. The present appeal has been filed under Section 260A of Income Tax Act, 1961 (for brevity "Act, 1961") challenging the order dated 5th December, 2008 passed by the Income Tax Appellate Tribunal (in short "ITAT") in ITA No. 1970/Del/2005, for the assessment year 2000-2001. 2. Ms. Rashmi Chopra, learned counsel for Revenue submitted that ITAT had erred in law and on merits in deleting the addition of Rs. 1,32,72,500/- on account of bogus share capital under Section 68 of Act, 1961. She contended that the assessee-company had failed to prove the identity, genuineness and creditworthiness of the share applicants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f depositor, AO did not carry out any specific enquiries. In our view, the matter has to be looked into from the point of burden cast on the assessee for which parameters have been laid down by Hon'ble Supreme Court in the case of Lovely Exports (Pvt.) Ltd. and of Delhi High Court in the case of Sophia Finance Ltd., Stellar Investment Ltd. and AGR Investments Ltd. (supra). Hon'ble Courts have laid down following main parameters. (1) When the identity of the shareholder is established by the assessee no addition in respect of share application money received by the assessee can be made u/s 68. (2) If some of the summons come unserved, no adverse inference can be drawn. 28. In our view, the assessee has discharged its onus in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This ground of the assessee is partly allowed." 5. On a scrutiny of the order passed by the Tribunal, it is clear that the Tribunal has based its conclusion on the decision rendered in Commissioner of Income Tax v. Lovely Exports (P) Ltd. (2008) 216 CTR 195 wherein their Lordships have held as under: "Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that 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 reopen their individual assessments in accordance with law. Hence, we find no infirmity with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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