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TMI Blog2016 (6) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... was share allotment money and, therefore, could not be considered to be a loan and/or advance. It is to be further noted that it is not the case of the Revenue that the transaction of taking money for allotment of shares was a colourable device to evade taxes. In the aforesaid circumstances, no reason has been shown as to why the concurrent finding of fact arrived at by the Commissioner of Income-tax (Appeals) and the Tribunal holding that share allotment money could not be considered to be loans and advances is required to be disturbed. This finding was reached on an analysis of facts. Appeal is admitted on question No. (ii) - "Whether on the facts and circumstances of the case and in law, the Tribunal was justified in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residential unit only ? 3. Re : question (i) (a) The respondent-assessee holds more than 10 per cent. of the voting power (beneficial shareholder) in Siddhivinayak Realities Pvt. Ltd., M/s. Oberoi Construction Pvt. Ltd., Kingston Properties Pvt. Ltd. and R. S. Estate Developers Pvt. Ltd. During the subject assessment year, Siddhivinayak Realities Pvt. Ltd. received a sum of ₹ 10.35 crores from M/s. Oberoi Construction Pvt. Ltd. as share application money while Kingston Properties Pvt. Ltd. received a sum of ₹ 6.89 crores from R. S. Estate Developers Pvt. Ltd. as share application money. The Assessing Officer invoked section 2(22)(e) of the Act and brought to tax the amount received as share application money by M/s. Sidd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Direct Information Pvt. Ltd. [2012] 18 ITR (Trib) 562 (Mumbai), dated January 31, 2012 and ITO v. Subhmangal Credit Capital Pvt. Ltd. I. T. A. No. 7238/Mum/2008, dated January 19, 2010 to hold that where share application money is received pending allotment of shares then, the same cannot be considered to be in the nature of loans and advances. The impugned order, on facts, held that in the absence of the Revenue alleging/establishing any mala fide, the book entries and resolutions passed by the two companies involved in applying for shares and allotment of shares has to be accepted as having been genuinely done. The subsequent return of the amounts in a subsequent assessment year was for commercial reasons. It was further held that the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the share application money cannot be treated as loans and advances for purposes of section 2(22)(e) of the Act. Moreover, on examination of the facts, both the Commissioner of Income-tax (Appeals) and the Tribunal have held that what was received was share allotment money and, therefore, could not be considered to be a loan and/or advance. It is to be further noted that it is not the case of the Revenue that the transaction of taking money for allotment of shares was a colourable device to evade taxes. 5. In the aforesaid circumstances, no reason has been shown as to why the concurrent finding of fact arrived at by the Commissioner of Income-tax (Appeals) and the Tribunal holding that share allotment money could not be considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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