9911796707
TMI Blog2017 (3) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. There was however no material on the basis of which the CIT could have come to the conclusion that the receipt of share capital and share premium was not satisfactorily explained by the assessee. As rightly contended by the assessee, the CIT ought to have set aside the order of the AO and directed the AO to conduct fresh enquiry on the lines indicated in the order of this Tribunal in the case of Subhlakshmi Vanijya Pvt. Ltd. (supra). We therefore modify the order of CIT and direct the AO to make fresh enquiry with regard to the receipt of share capital and share premium during the previous year after affording Assessee opportunity of being heard. With these observations the appeal of the assessee is treated as partly allowed. - I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the AO himself commenced the proceedings for passing an order giving effect to the directions of the CIT. The reason for the delay in filing has been explained thus by the Assessee. After considering the reasons given in the affidavit, we are of the view that there was a reasonable cause for delay in filing this appeal by the assessee and therefore the delay in filing the appeal is condoned. 3. The Assessee is a company. For A.Y.2012-13 an order of assessment u/s 143(3) of the Act was passed by the AO on 07.03.2014. The assessee had during the previous year received ₹ 58.80 crores towards share premium on issue of share capital of ₹ 1.20 crores . 4. The AO framed the assessment u/s 143 (3) of the Act accepting the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the assessee during the year in the form of share capital and share premium of ₹ 1,20,00,000/- and ₹ 58,80,00,000/- is nothing but assessee's own unaccounted money which has been shown to have been received in the garb of share capital and share premium. As the assessee has neither at the time of assessment proceeding nor during the instant proceeding been able to produce any material which should establish genuineness of the impugned transaction, adverse inference is inevitable as has been held in the case of MGF Finance Ltd. (254 ITR 499 Del.). Further, the A.O. accepted the claim of the assessee without establishing that the capacity and creditworthiness of the persons who subscribed to the share capital and share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny enquiry and there was nothing on record to justify such addition and no reasonable person without making proper enquiry would have made the addition of ₹ 60 Crores. 8. It was the plea of the learned counsel for the Assessee that the CIT ought not to have directed to make the addition of the sum received as share capital and share premium by the Assessee as unexplained and ought to have set aside the issue to the AO for fresh consideration by the AO as the grievance of the CIT was that the AO did not make proper enquiry before accepting the receipt of share capital and share premium by the Assessee as explained. We have heard the submissions made on behalf of the assessee. This Tribunal had dealt with the identical case in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits on the question of issue of share capital at a huge premium ; and v) the AO in the given circumstances can t be said to have taken a possible view as the revision is sought to be done on the premise that the AO did not make enquiry thereby rendering the assessment order erroneous and prejudicial to the interest of the revenue on that score itself. C. In the given facts and circumstances of all such cases, the notices u/s 263 were properly served through affixture or otherwise. Further the law does not require the service of notice u/s 263 strictly as per the terms of section 282 of the Act. The only requirement enshrined in the provision is to give an opportunity of hearing to the assessee, which has been complied with in al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s passed u/s 147 of the Act. 9. The ld. Counsel for the assessee admitted that those findings will apply to the present case also. He however submitted that in the group of cases decided by the Tribunal in which the lead order has been passed in the case of Subhlakshmi Vanijya Pvt. Ltd. (supra), the CIT in exercise of his powers u/s 263 of the Act had not directed the addition of the sum received as share capital and share premium but has set aside the order of AO and directed the AO to make a fresh enquiry with regard to the creditworthiness of the share applicants and the genuineness of the transactions. It was submitted by him that in the present case, no notice u/s 263 of the Act was served on the assessee personally before the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
