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TMI Blog2024 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the entity that subscribed to its issue of FCCB, which is not in doubt. Assessee having received the amount of subscription of the fund from the said entity, has also not been denied. The fact that global certificate in respect of the bonds was also issued to the said entity, is also not disputed and, therefore, the Tribunal accepted that assessee has adequately discharged the onus cast upon it in terms of Section 68 - Tribunal concluded that assessee did not have an obligation to prove the identity, capacity and creditworthiness of the actual subscriber, i.e., the sources source. The said order in the case of Reliance Communication Ltd passed by the Tribunal was impugned by the revenue in this court u/s 260A of the Act. The same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single global certificate which is prerequisite condition of section 68 of the Act? (iii) Whether on the facts and in circumstances of the case, Hon'ble ITAT was justified in not appreciating that Deutsche Bank Luxembourg SA - Registrar, the agent of the assessee, responsible for maintaining the name of the subscriber register was not provided by the assessee, whereas assessee was duty bound to produce such subscriber register from its agent and order of ITAT is perverse to that extent? (iv) Whether on the facts and in circumstances of the case, Hon'ble ITAT has justified in not appreciating that the provisions of section 114(g) of the Indian Evidence Act which clearly lays down that if a fact in knowledge of a party is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in denomination of US$ 100 each. It also provided that no individual certificate in respect of interest in any bond was to be issued in exchange of global certificate except in the circumstances provided in the clause. 3. The payment of US$ 290.40 million was made by way of subscription for FCCB which assessee has received from Barclays Bank through Deutsche Bank and issued a receipt on 15th October 2010. FCCB of US$ 300 million were transferred to Reliance Power under demerger scheme approved by Hon'ble Bombay High Court on 15th October 2011. The FCCB of US$ 100,000/- were converted into shares in Reliance Power Ltd. and 43862 shares were issued to FCCB holders during F.Y. 2010-11. Balance FCCB of US$ 299.90 millions were redeemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The identity, creditworthiness and genuineness has to be looked into vis vis the subsequent bondholders collectively represented by global certificate. It was also submitted that the lead managers are not the subscribers or at least the ultimate subscribers and assessee was required to cause the register of the bondholders to be maintained by the Registrar. The failure to produce the names of the subsequent bondholders and failure to give their creditworthiness justifies the invocation of section 68 of the Act. It was also submitted that if the provisions of Section 68 of the Act are applied to FCCB proceeds, the interest expenses and FCCB expenses were also to be disallowed as nongenuine. 7. A similar issue on similar facts had com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The same issue as raised in case at hand was raised therein. The appeal was dismissed, against which an SLP was preferred by the revenue. The SLP also came to be dismissed. 9. The Tribunal in the case at hand has concluded and rightly so that the facts in the case of Reliance Communication Ltd are similar to assessee s case in the case at hand and the ground raised by revenue were also identical. Therefore, on facts the Tribunal correctly came to the conclusion that the nature and source of funds of FCCB is fully explained and the addition under Section 68 of the Act made by the AO in the reassessment proceedings was not correct. 10. In the circumstances, we find no reason to interfere in the order of the Tribunal impugned in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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