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TMI Blog2009 (5) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... tware solutions, had during the relevant previous year claimed exemption of Rs. 65,75,677 under section 10A of the Act. Assessment was completed under section 143(3) and the Assessing Officer allowed the claim. However, CIT for a reasoning that the Assessing Officer had not examined the assessee s claim of deduction under section 10A of the Act properly, issued notice under section 10A of the Act. According to the CIT, there was a change in ownership or the beneficial interest in the assessee-company during the relevant previous year thereby depriving it the benefit of deduction under section 10A of the Act. In reply to the notice, assessee contended that there was no change in the ownership nor beneficial interest. In support of this, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 187C of the Companies Act, 1956 were not sufficient enough to establish that Shri Ashish Vibhakar had acquired 7,000 shares in the assessee-company as a nominee of ebyz.com.LLC. According to the learned CIT, the shareholding pattern during the relevant previous year had changed as under : (TABLE B ) Shareholding as on 31st March, 2000 Sl. No. Name No. of shares of Rs. 10 each Paid-up value (Rs.) % of Holding 1. Ashish Vibhakar 7,000 70,000 77.78 2. Jayesh N. Dalal Family Assoc. 2,000 20,000 22.22 TOTAL 9,000 90,000 100.00 Shareholding as on 31st March, 2001 Sl. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter that the sum given was for set up and incorporation of assessee-company as per the investment plan of Ebyz.com.LLC. Reliance was also placed on declaration filed by Shri Ashish Vibhakar in terms of section 187C(2) of the Companies Act, 1956 placed at page 6. According to him, this declaration dated 30-3-2000 clearly mentioned that the beneficial interest in 7,000 equity shares was with Ebyz.com.LLC and Form No. III being the form of return to be filed with the Registrar, pursuant to section 187C(4) of the Companies Act, 1956 placed at paper book page 8, was also referred in support of his contention that the shares held by Shri Ashish Vibhakar was only as nominee of ebyz.com.LLC. Therefore, according to him, it was, thus, clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 10A of the Act. So the short question remained is whether Shri Ashish Vibhakar who received the original allotment of 7,000 equity shares initially had received it for and on behalf of M/s. Ebyz.com.LLC. If this is not so, the Table B as reproduced at para 3 above, would be correct and if this is so, Table A as reproduced at para 2 above would be correct. Assessee s contention is that it had filed Return in Form No. III dated 8-4-2000 with the Registrar of Companies whereby it was declared that the beneficial interest in 7,000 shares held by Shri Ashish Vibhakar was with M/s. Ebyz.com.LLC. Learned CIT rejected the declaration filed by Shri Ashish Vibhakar with the assessee-company in Form No. 1 (paper book page 6) as a self-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shares stand registered in the books of the company and such other particulars as may be prescribed. (3) Whenever there is a change in the beneficial interest in such shares the beneficial owner shall, within thirty days from the date of such change, make a declaration to the company in such form and containing such particulars as may be prescribed. (4) Notwithstanding anything contained in section 153 where any declaration referred to in sub-section (1), sub-section (2) or sub-section (3) is made to a company, the company shall make a note of such declaration, in its register of members and shall file, within thirty days from the date of receipt of the declaration by it, a return in the prescribed form with the registrar with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails are correctly established, it would not be possible to give a finding whether Form No. III intimating the beneficial holding in shares were filed within the prescribed period under the Companies Act, 1956. In our opinion, this is a crucial evidence in order to decide whether the documentation were done as an afterthought or whether it was done in due course of business. If such Form No. III was indeed filed within the due period, no doubt assessee s claim has to be allowed. Neither the Assessing Officer nor the CIT has examined this aspect of the claim. Therefore, the learned CIT could not have come to a conclusion regarding the beneficial holding of shares by M/s. Ebyz.com.LLC without verifying the facts relating to filing of Form N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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