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TMI Blog2008 (11) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... n the individual assessments of the share applicants in accordance with law. We direct accordingly. Deleting the levy of surcharge - HELD THAT:- In view of the decision of Hon ble Supreme Court in the case of CIT vs. Suresh N. Gupta [ 2008 (1) TMI 396 - SUPREME COURT] held that proviso to s. 113 inserted by the Finance Act, 2002 w.e.f. 1st June, 2002 is clarificatory in nature, we confirm the action of AO and allow this ground in favour of assessee. In the result, both the appeals of the assessee and that of the Revenue are allowed in part. - RAJPAL YADAV, J.M. AND R.C. SHARMA, A.M. For the Petitioner : Davendra Shankar For the Retitioner : Dr. Rakesh Gupta Ashwani Taneja ORDER R.C. SHARMA, A.M. : 1. These are the appeals filed by the assessee and revenue against the block assessment order passed under Section 158BC covering the period 1-4-1990 to 19-3-2001. As common grounds are involved in all these appeals we have heard all the appeals together and are now disposing the same by this consolidated order. Grounds taken by the assessee and revenue in their respective appeals are as under: ITA No. 56/Del/2004: (A) That the learned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 43,000 made by the assessing officer on account of premium paid @ 2 per cent for obtaining the entries when the assessing officer had made the addition on the basis of documents seized during the search operation. ITA No. 115/Del/2005: 1. On the facts and in the circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 18,18,000 made by the assessing officer in respect of benami share capital subscribed by the companies controlled by Shri Rajender Aggarwal when the assessing officer had made the addition on the basis of documents seized during the search operation. 2. On the facts and in the circumstances of the case, the learned Commissioner (Appeals) has erred in law in deleting the surcharge whereas Schedule I of the Finance Act clearly directs that surcharge is to be charged on the amount of income-tax computed including tax under Section 113 of the Income Tax Act of the 1961 on the undisclosed income of the block period determined under Section 158BC of the Income Tax Act, 1961. ITA No. 122/Del/2004: 1. On the facts and in the circumstances of the case the learned Commissioner (Appeals) has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the appeals after having the following observations: We have considered the rival contentions and carefully gone through the orders of authorities below and also deliberations upon case laws cited by the lower authorities in their respective orders as well as referred by learned Authorised Representative and learned Departmental Representative during the course of hearing before us. So far as identity of share applicants are concerned, the same are on record. The Hon'ble Supreme Court in case of Divine Leasing Finance Ltd. Order dated 21-1-2008 has held that if the share application money is received by the assessee company even from the bogus shareholders whose names are given to the assessing officer then the department is free to proceed to reopen their individual assessments in accordance with law. Accordingly, addition made under Section 68 which was deleted by the Hon'ble High Court was upheld by Hon'ble Supreme Court. A perusal of the orders of the Hon'ble Supreme Court in the case of Divine Leasing and Finance Ltd. referred to supra is in regard to SLP filed by the revenue against the order of the Hon'ble jurisdictional High Court, the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame and on verification if it is found that this amount has already been added in the hands of Minda group, no interference in the order of Commissioner (Appeals) in deleting this addition is called for. 4. It was contended by the learned Authorised Representative that all the three ingredients of identity, genuineness and creditworthiness of share applicants were not in dispute. All the companies from whom share capital was received by the assessee company were assessed to tax and their identity was well established on record. Accordingly, he prayed that issue is squarely covered by the decision of Hon'ble Supreme Court in case of Divine Leasing Finance Ltd., order dated 21-1-2008. He also placed reliance upon the decision of the Delhi High Court in the case of CIT v. Value Capital Services (P) Ltd. in IT Appeal No. 348.of 2008, dated 25-4-2008 wherein the Hon'ble Delhi High Court has held that it is quite obvious that it is very difficult for the assessee to show the creditworthiness of strangers. If the revenue has any doubt with regard to the ability to make the investments, their returns may be reopened by the department. It is the additional burden on the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer was liable to be confirmed. 6. We have considered the rival contentions and found that identity of the share applicants are not in dispute. The Hon'ble Supreme Court in case of Divine Leasing Finance Ltd. (supra) has held that if the share application money is received by the assessee company even from the bogus shareholders whose names are given to the assessing officer then the department is free to proceed to reopen their individual assessments in accordance with law. Accordingly, addition made under Section 68 which was deleted by the Hon'ble High Court was upheld by Hon'ble Supreme Court. A perusal of the orders of the Hon'ble Supreme Court in the case of Divine Leasing Finance Ltd. referred to supra is in regard to SLP filed by the revenue against the order of the Hon'ble jurisdictional High Court. The Hon'ble Supreme Court has specifically with a speaking order dismissed the SLP. The Hon'ble Supreme Court in the various decisions referred to by the learned Authorised Representative has categorically held that the addition in regard to the share capital cannot be treated as the undisclosed income of the assessee if the share applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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