ITO, Ward-10(4), Kolkata, Kolkata V. M/s Unique Hirise Pvt. Ltd., Kolkata

ITA 2272/KOL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6031 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 01-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOKE NAG
• Assessee Lawyers: MANISH TIWARI
• Keywords: Retrospective amendment; Question of law; Fair market value; Capital receipt
• Section: 143(3); 260A; 133(6); 250; 201; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 INCOME TAX OFFICER, WARD-10(4), KOLKATA...APPELLANT VS. M/S. UNIQUE HIRISE PVT. LTD........................................RESPONDENT FLAT NO. 1E 6, M.G. BASAK ROAD BLOCK-1 PHASE-II KOLKATA 700 080 [PAN : AABCU 1315 J] APPEARANCES BY: SHRI ALOKE NAG, ADDL. CIT, SR. D/R, APPEARED ON BEHALF OF THE REVENUE. SHRI MANISH TIWARI, FCA, APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : AUGUST 5 TH , 2019 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 20 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 30/09/2016, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS A COMPANY AND HAS FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 28/09/2012, DECLARING NIL INCOME (LOSS FOR RS.12,660/-). THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143(3) ON 12/03/2015 ADDING AN AMOUNT OF RS.1,40,21,900/- U/S 68 OF THE ACT, BEING SHARE PREMIUM RECEIVED BY THE ASSESSEE AGAINST ALLOTMENT OF SHARES. IT MAY BE NOTED THAT THE FACE VALUE OF THE SHARES ALLOTTED WAS ACCEPTED AS GENUINE BY THE ASSESSING OFFICER. THE ASSESSEE CARRIED THE MATTER IN APPEAL. 2.1. THE LD. FIRST APPELLATE AUTHORITY, DELETED THE ADDITION FOR VARIOUS REASONS GIVEN AT PARA 4.2. TO 4.9. OF HIS ORDER. 3. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 4. THE LD. D/R, MR. ALOKE NAG, SUBMITTED THAT THE ASSESSEE HAD NOT SUBMITTED ALL THE DETAILS WHICH WERE FILED BY HIM AND THAT UNDER THOSE CIRCUMSTANCES, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY. GRANTED RELIEF AND THAT HE HAS NOT ALLOWED THE JUDICIAL DECISIONS OF THE ITAT AND OTHER COURTS ON THIS ISSUE. HE POINTED OUT THAT IN MANY SUCH CASES, THE TRIBUNAL HAS BEEN RESTORING THE ISSUE TO THE FILE OF THE LD. CIT(A) FOR 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, OPPOSED THE CONTENTIONS AND SUBMITTED THAT, THE ASSESSING OFFICER HAS BEEN CONVINCED OF THE IDENTITY AND CREDITWORTHINESS OF THE SHARE HOLDERS. HE POINTED OUT THAT, ONLY WITH REGA GENUINENESS OF THE TRANSACTIONS, TRANSACTIONS WERE PARTLY GENUINE. HE SUBMITTED THAT THERE WERE ONLY FIVE SHARE HOLDERS ALL OF WHOM ARE CORPORATE BODIES AND EACH AND EVERY ONE OF THEM WAS ASSESSED TO T AND THE PREMIUM IN QUESTION WAS SUBST NUMBER OF CASE- LAW, FOR THE PROPOSITION THAT, PART OF THE SUM RECEIVED CANNOT BE ADDED U/S 68 OF THE ACT. 6. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 7. THIS IS A CASE, WHERE THE ASSESSING OFFICER HAS ACCEPTED THE SHARE CAPITAL RAISED BY THE ASSESSEE AT ITS FACE VALUE. THE ONLY ADDITION MADE WAS OF SHARE PREMIUM ON THE GROUND THAT THIS IS EXCESSIVE. DOUBTED. THE CREDITWORTHINESS IS NOT QUESTIONED BY THE ASSESSING OFFICER, ONLY PART OF THE TRANSACTION IS ACCEPTED AS GENUINE. OFFICER CAN MAKE AN ADDITION OF ONLY THE SHARE PREMIUM U/S 68 OF THE ACT, WHILE ACCEPTING THE SHARE APPLICATION MONEY AT FACE VALUE TO BE GENUINE. THIS BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S. TREND INFRA DEVELOPERS PVT. LTD. IN ITA NO. 2270/KOL/2016; ASSESSMENT YEAR 2012 2 M/S. UNIQUE HIRISE PVT. LTD THE LD. D/R, MR. ALOKE NAG, SUBMITTED THAT THE ASSESSEE HAD NOT SUBMITTED ALL THE WHICH WERE FILED BY HIM BEFORE THE LD. CIT(A) DURING THE COURSE OF ASSESSMENT UNDER THOSE CIRCUMSTANCES, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY. HE FURTHER SUBMITTED T HAT THE LD. CIT(A) HAS WRONGLY GRANTED RELIEF AND THAT HE HAS NOT ALLOWED THE JUDICIAL DECISIONS OF THE ITAT AND OTHER HE POINTED OUT THAT IN MANY SUCH CASES, THE TRIBUNAL HAS BEEN RESTORING THE ISSUE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, OPPOSED THE CONTENTIONS AND SUBMITTED THAT, THE ASSESSING OFFICER HAS BEEN CONVINCED OF THE IDENTITY AND CREDITWORTHINESS OF THE SHARE HOLDERS. HE POINTED OUT THAT, ONLY WITH REGA GENUINENESS OF THE TRANSACTIONS, THE VIEW OF THE ASSESSING OFFICER WAS THAT TRANSACTIONS WERE PARTLY GENUINE. HE SUBMITTED THAT THERE WERE ONLY FIVE SHARE HOLDERS ARE CORPORATE BODIES AND EACH AND EVERY ONE OF THEM WAS ASSESSED TO T AND THE PREMIUM IN QUESTION WAS SUBST ANTIA TED BY THE ASSESSEE. HE RELIED ON THE LAW, FOR THE PROPOSITION THAT, PART OF THE SUM RECEIVED CANNOT BE ADDED WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - THIS IS A CASE, WHERE THE ASSESSING OFFICER HAS ACCEPTED THE SHARE CAPITAL RAISED ITS FACE VALUE. THE ONLY ADDITION MADE WAS OF SHARE PREMIUM ON THE GROUND THAT THIS IS EXCESSIVE. IN OTHER WORDS, THE IDENTITY OF THE SHARE HOLDER IS NOT DOUBTED. THE CREDITWORTHINESS IS NOT QUESTIONED BY THE ASSESSING OFFICER, ONLY PART OF IS ACCEPTED AS GENUINE. THE ISSUE BEFORE US IS WHETHER THE ASSESSING OFFICER CAN MAKE AN ADDITION OF ONLY THE SHARE PREMIUM U/S 68 OF THE ACT, WHILE ACCEPTING THE SHARE APPLICATION MONEY AT FACE VALUE TO BE GENUINE. THIS BENCH OF THE ITO VS. M/S. TREND INFRA DEVELOPERS PVT. LTD. IN ITA NO. 2270/KOL/2016; ASSESSMENT YEAR 2012 -13, ORDER DT. 26/10/2018, HELD AS FOLLOWS: I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 M/S. UNIQUE HIRISE PVT. LTD THE LD. D/R, MR. ALOKE NAG, SUBMITTED THAT THE ASSESSEE HAD NOT SUBMITTED ALL THE DURING THE COURSE OF ASSESSMENT UNDER THOSE CIRCUMSTANCES, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE HAT THE LD. CIT(A) HAS WRONGLY GRANTED RELIEF AND THAT HE HAS NOT ALLOWED THE JUDICIAL DECISIONS OF THE ITAT AND OTHER HE POINTED OUT THAT IN MANY SUCH CASES, THE TRIBUNAL HAS BEEN THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, OPPOSED THE CONTENTIONS AND SUBMITTED THAT, THE ASSESSING OFFICER HAS BEEN CONVINCED OF THE IDENTITY AND CREDITWORTHINESS OF THE SHARE HOLDERS. HE POINTED OUT THAT, ONLY WITH REGA RD THE THE VIEW OF THE ASSESSING OFFICER WAS THAT THE TRANSACTIONS WERE PARTLY GENUINE. HE SUBMITTED THAT THERE WERE ONLY FIVE SHARE HOLDERS , ARE CORPORATE BODIES AND EACH AND EVERY ONE OF THEM WAS ASSESSED TO T AX TED BY THE ASSESSEE. HE RELIED ON THE LAW, FOR THE PROPOSITION THAT, PART OF THE SUM RECEIVED CANNOT BE ADDED WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES THIS IS A CASE, WHERE THE ASSESSING OFFICER HAS ACCEPTED THE SHARE CAPITAL RAISED ITS FACE VALUE. THE ONLY ADDITION MADE WAS OF SHARE PREMIUM ON THE IN OTHER WORDS, THE IDENTITY OF THE SHARE HOLDER IS NOT DOUBTED. THE CREDITWORTHINESS IS NOT QUESTIONED BY THE ASSESSING OFFICER, ONLY PART OF THE ISSUE BEFORE US IS WHETHER THE ASSESSING OFFICER CAN MAKE AN ADDITION OF ONLY THE SHARE PREMIUM U/S 68 OF THE ACT, WHILE ACCEPTING THE SHARE APPLICATION MONEY AT FACE VALUE TO BE GENUINE. THIS BENCH OF THE ITO VS. M/S. TREND INFRA DEVELOPERS PVT. LTD. IN ITA NO. HELD AS FOLLOWS: - 3.3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE FACT STATED HEREINABOVE REMAIN UNDISPUTED BEFORE US BY EITHER OF THE PARTIES AND HENCE THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. AT THE OUTSET, WE FIND THAT THE ASSESSEE HAD RECEIVED SHARE CAPITAL OF RS. 57,900/ AND RS. 2,88,92,100/- FROM THE VERY SAME SHAREHOLDERS TOWARDS SHARE PREMIUM. TH CAPITAL RECEIVED BY THE ASSESSEE HAS BEEN DULY ACCEPTED BY THE LD. AO WITHIN THE KEN OF OF THE ACT. HOWEVER, SHARE PREMIUM COMPONENT HAS BEEN DOUBTED BY THE LD. AO. WE FIND THAT THE ASSE SSEE IN THE INSTANT CASE HAD DULY COMPLIED WITH BY FURNISHING THE COMPLETE DETAILS OF SHARE SUBSCRIBERS TO PROVE THEIR IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF SHARE SUBSCRIBERS BEYOND DOUBT. THESE ARE DULY SUPPORTED BY THE DOCUMENT ENCLOSED IN THE PAPER BOOK. THE LD. AO HAD NOT FOUND ANY FALSITY OR ANY ADVERSE INFERENCE OF THE SAID DOCUMENTS. WE FIND THAT THE LD. CIT(A) HAD PLACED HEAVY RELIANCE ON THESE DOCUMENTS AND HAD GRANTED RELIEF TO THE ASSESSEE. ALL TH THE TRANSACTION WITH THE ASSESSEE COMPANY ARE DULY ROUTED THROUGH BANKING CHANNELS AND ARE DULY REFLECTED IN THEIR RESPECTIVE AUDITED BALANCE SHEETS WHICH ARE ALSO PLACED ON RECORD BEFORE US. IN ANY C ASE, ONCE THE RECEIPT OF SHARE CAPITAL HAS BEEN ACCEPTED AS GENUINE WITHIN THE KEN OF SECTION 68 OF THE ACT, THERE IS NO REASON FOR THE LD. AO TO DOUBT THE SHARE PREMIUM COMPONENT RECEIVED FROM THE VERY SA INGREDIENTS OF SECTION 68 HAD BEEN DULY COMPLIED WITH BY THE ASSESSEE WITH PROPER DOCUMENTARY EVIDENCES. WE FIND THAT NOTICES ISSUED U/S 133(6 GRIEVANCE OF THE LD. AO WAS THAT THE ASSESSEE COULD NOT PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES. IN OUR CONSIDERED OPINION, FOR THIS REASON ALONE, THERE CANNOT BE ANY ADDITION U/S 68 OF THE ACT AS H CORPORATION PVT. LTD . REPORTED IN 159 ITR 78 (SC). WE FIND THAT THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF NOVO PROMOTERS AND FIN VEHEMENTLY RELIED UPON BY THE LD. DR BEFORE US, IS NOT APPLICABLE IN THE INSTANT CASE, AS IN THE FACTS BEFORE THE HON'BLE DELHI HIGH COURT, THE NOTICES U/S 133(6) HAVE NOT BEEN DULY COMPLIED WITH. HENCE THE DEC ISION RENDERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE REFERRED TO SUPRA IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE AND IS FACTUALLY DISTINGUISHABLE. 3.3.1. WE FIND THAT THE RELIANCE PLACED BY THE LD. AR IN THE DECISION OF HON'BLE BOMBAY HIGH C IN PR. CIT VS. APEAK INFOTECH QUESTION RAISED BEFORE THE HON'BLE BOMBAY HIGH COURT ARE AS UNDER: 'A. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT TO UPHOLD THE DECISION ON COMMISSIONER OF INCOME TAX (APPEALS) THAT THE SHARE PREMIUM RECEIVED BY THE ASSESSEE I GNORING THE RATIO LAID DOWN BY THIS COURT IN ITS DECISION REPORTED IN THE CASE OF METALS LTD. VS. UNION OF INDIA B. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IN DELETING ADDITION MADE BY THE ASSESSING OFFICER, BY HOLDING THAT THE SHARE PREMIUM RECEIPT IS CAPITAL IN NATURE?' THE HON'BLE COURT HELD AS UNDER: REGARDING QUESTION A: ( A) THE ISSUE RAISED BY THE REVENUE IN THIS QUESTION IS TO BRING TO TAX THE SHARE PREMIUM RECEIVED UNDER SECTION 68 PREMIUM TO TAX UNDER APPELLANT REVENUE BEFORE THE TRIBUNAL. THE ONLY ISSUE WHICH WAS URGED BEFORE THE TRIBUNAL AS RECORDED IN PARA 11 OF THE IMPUGNED ORDER IS THE ADDITION OF S AND SHARE APPLICATION MONEY IN THE HANDS OF THE ASSESSEE AS INCOME UNDER OF THE ACT. WE FIND THAT THE COMMISSIONER OF INCOME OF APPLICABILIT Y OF REVENUE SEEMS TO HAVE ACCEPTED THE SAME AND DID NOT URGE THIS ISSUE BEFORE THE TRIBUNAL. MR. BHOOT, LEARNED COUNSEL APPEARING FOR THE RE 3 M/S. UNIQUE HIRISE PVT. LTD 3.3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE FACT STATED HEREINABOVE REMAIN UNDISPUTED BEFORE PARTIES AND HENCE THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. AT THE OUTSET, WE FIND THAT THE ASSESSEE HAD RECEIVED SHARE CAPITAL OF RS. 57,900/ - FROM SIX SHAREHOLDERS FROM THE VERY SAME SHAREHOLDERS TOWARDS SHARE PREMIUM. TH CAPITAL RECEIVED BY THE ASSESSEE HAS BEEN DULY ACCEPTED BY THE LD. AO WITHIN THE KEN OF OF THE ACT. HOWEVER, SHARE PREMIUM COMPONENT HAS BEEN DOUBTED BY THE LD. AO. WE FIND THAT THE SSEE IN THE INSTANT CASE HAD DULY COMPLIED WITH BY FURNISHING THE COMPLETE DETAILS OF SHARE SUBSCRIBERS TO PROVE THEIR IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF SHARE SUBSCRIBERS BEYOND DOUBT. THESE ARE DULY SUPPORTED BY THE DOCUMENT ARY EVIDENCES WHICH ARE ENCLOSED IN THE PAPER BOOK. THE LD. AO HAD NOT FOUND ANY FALSITY OR ANY ADVERSE INFERENCE OF THE SAID DOCUMENTS. WE FIND THAT THE LD. CIT(A) HAD PLACED HEAVY RELIANCE ON THESE DOCUMENTS AND HAD GRANTED RELIEF TO THE ASSESSEE. ALL TH E SHARE SUBSCRIBERS ARE DULY ASSESSED TO INCOME TAX AND THE TRANSACTION WITH THE ASSESSEE COMPANY ARE DULY ROUTED THROUGH BANKING CHANNELS AND ARE DULY REFLECTED IN THEIR RESPECTIVE AUDITED BALANCE SHEETS WHICH ARE ALSO PLACED ON RECORD BEFORE ASE, ONCE THE RECEIPT OF SHARE CAPITAL HAS BEEN ACCEPTED AS GENUINE WITHIN THE KEN OF OF THE ACT, THERE IS NO REASON FOR THE LD. AO TO DOUBT THE SHARE PREMIUM COMPONENT RECEIVED FROM THE VERY SA ME SHAREHOLDERS AS BOGUS. WE HELD THAT ALL THE THREE NECESSARY HAD BEEN DULY COMPLIED WITH BY THE ASSESSEE WITH PROPER DOCUMENTARY EVIDENCES. WE FIND THAT NOTICES ISSUED U/S 133(6 ) HAVE BEEN DULY COMPLIED WITH. THE ONLY GRIEVANCE OF THE LD. AO WAS THAT THE ASSESSEE COULD NOT PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES. IN OUR CONSIDERED OPINION, FOR THIS REASON ALONE, THERE CANNOT BE ANY ADDITION U/S 68 OF THE ACT AS H ELD BY THE HON'BLE SUPREME COURT IN THE CASE OF . REPORTED IN 159 ITR 78 (SC). WE FIND THAT THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF NOVO PROMOTERS AND FIN LEASE PVT. LTD. REPORTED IN 342 ITR 169 (DEL) VEHEMENTLY RELIED UPON BY THE LD. DR BEFORE US, IS NOT APPLICABLE IN THE INSTANT CASE, AS IN THE FACTS BEFORE THE HON'BLE DELHI HIGH COURT, THE NOTICES U/S 133(6) HAVE NOT BEEN DULY COMPLIED WITH. ISION RENDERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE REFERRED TO SUPRA IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE AND IS FACTUALLY DISTINGUISHABLE. 3.3.1. WE FIND THAT THE RELIANCE PLACED BY THE LD. AR IN THE DECISION OF HON'BLE BOMBAY HIGH C PR. CIT VS. APEAK INFOTECH REPORTED IN 88 TAXMANN.COM 695 DT. 08.06.2017 WHEREIN THE QUESTION RAISED BEFORE THE HON'BLE BOMBAY HIGH COURT ARE AS UNDER: 'A. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT TO UPHOLD THE DECISION ON COMMISSIONER OF INCOME TAX (APPEALS) THAT THE SHARE PREMIUM RECEIVED BY THE ASSESSEE - COMPANY CANNOT BE TAXED UNDER SECTION 68 OF THE ACT GNORING THE RATIO LAID DOWN BY THIS COURT IN ITS DECISION REPORTED IN THE CASE OF METALS LTD. VS. UNION OF INDIA [2013] 359 ITR 450 (BOM) B. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL AS WELL AS THE COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IN DELETING ADDITION MADE BY THE ASSESSING OFFICER, BY HOLDING THAT THE SHARE PREMIUM RECEIPT IS CAPITAL IN NATURE?' THE HON'BLE COURT HELD AS UNDER: REGARDING QUESTION A: A) THE ISSUE RAISED BY THE REVENUE IN THIS QUESTION IS TO BRING TO TAX THE SHARE PREMIUM SECTION 68 OF THE ACT. WE FIND THAT THE ISSUE OF BRINGING THE SHARE PREMIUM TO TAX UNDER SECTION 68 OF THE ACT WAS NOT AN ISSUE WHICH WAS URGED BY THE APPELLANT REVENUE BEFORE THE TRIBUNAL. THE ONLY ISSUE WHICH WAS URGED BEFORE THE TRIBUNAL AS RECORDED IN PARA 11 OF THE IMPUGNED ORDER IS THE ADDITION OF S AND SHARE APPLICATION MONEY IN THE HANDS OF THE ASSESSEE AS INCOME UNDER OF THE ACT. WE FIND THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) DID CONSIDER THE ISSUE Y OF SECTION 68 OF THE ACT AND CONCLUDED THAT IT DOES NOT APPLY. THE REVENUE SEEMS TO HAVE ACCEPTED THE SAME AND DID NOT URGE THIS ISSUE BEFORE THE TRIBUNAL. MR. BHOOT, LEARNED COUNSEL APPEARING FOR THE RE VENUE ALSO FAIRLY STATES THAT I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 M/S. UNIQUE HIRISE PVT. LTD 3.3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE FACT STATED HEREINABOVE REMAIN UNDISPUTED BEFORE PARTIES AND HENCE THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. AT THE FROM SIX SHAREHOLDERS FROM THE VERY SAME SHAREHOLDERS TOWARDS SHARE PREMIUM. TH E SHARE CAPITAL RECEIVED BY THE ASSESSEE HAS BEEN DULY ACCEPTED BY THE LD. AO WITHIN THE KEN OF SECTION 68 OF THE ACT. HOWEVER, SHARE PREMIUM COMPONENT HAS BEEN DOUBTED BY THE LD. AO. WE FIND THAT THE SSEE IN THE INSTANT CASE HAD DULY COMPLIED WITH BY FURNISHING THE COMPLETE DETAILS OF SHARE SUBSCRIBERS TO PROVE THEIR IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF SHARE EVIDENCES WHICH ARE ENCLOSED IN THE PAPER BOOK. THE LD. AO HAD NOT FOUND ANY FALSITY OR ANY ADVERSE INFERENCE OF THE SAID DOCUMENTS. WE FIND THAT THE LD. CIT(A) HAD PLACED HEAVY RELIANCE ON THESE DOCUMENTS AND E SHARE SUBSCRIBERS ARE DULY ASSESSED TO INCOME TAX AND THE TRANSACTION WITH THE ASSESSEE COMPANY ARE DULY ROUTED THROUGH BANKING CHANNELS AND ARE DULY REFLECTED IN THEIR RESPECTIVE AUDITED BALANCE SHEETS WHICH ARE ALSO PLACED ON RECORD BEFORE ASE, ONCE THE RECEIPT OF SHARE CAPITAL HAS BEEN ACCEPTED AS GENUINE WITHIN THE KEN OF OF THE ACT, THERE IS NO REASON FOR THE LD. AO TO DOUBT THE SHARE PREMIUM COMPONENT ME SHAREHOLDERS AS BOGUS. WE HELD THAT ALL THE THREE NECESSARY HAD BEEN DULY COMPLIED WITH BY THE ASSESSEE WITH PROPER DOCUMENTARY ) HAVE BEEN DULY COMPLIED WITH. THE ONLY GRIEVANCE OF THE LD. AO WAS THAT THE ASSESSEE COULD NOT PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES. IN OUR CONSIDERED OPINION, FOR THIS REASON ALONE, THERE CANNOT BE ANY ELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ORISSA . REPORTED IN 159 ITR 78 (SC). WE FIND THAT THE DECISION OF HON'BLE DELHI HIGH LEASE PVT. LTD. REPORTED IN 342 ITR 169 (DEL) VEHEMENTLY RELIED UPON BY THE LD. DR BEFORE US, IS NOT APPLICABLE IN THE INSTANT CASE, AS IN THE FACTS BEFORE THE HON'BLE DELHI HIGH COURT, THE NOTICES U/S 133(6) HAVE NOT BEEN DULY COMPLIED WITH. ISION RENDERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE REFERRED TO SUPRA IS NOT 3.3.1. WE FIND THAT THE RELIANCE PLACED BY THE LD. AR IN THE DECISION OF HON'BLE BOMBAY HIGH C OURT REPORTED IN 88 TAXMANN.COM 695 DT. 08.06.2017 WHEREIN THE 'A. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT TO UPHOLD THE DECISION ON COMMISSIONER OF INCOME TAX (APPEALS) THAT THE SHARE COMPANY CANNOT BE TAXED UNDER SECTION 68 OF THE ACT GNORING THE RATIO LAID DOWN BY THIS COURT IN ITS DECISION REPORTED IN THE CASE OF MAJOR LAW, THE TRIBUNAL AS WELL AS THE COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IN DELETING ADDITION MADE BY THE ASSESSING OFFICER, BY HOLDING THAT THE SHARE PREMIUM RECEIPT IS CAPITAL IN NATURE?' A) THE ISSUE RAISED BY THE REVENUE IN THIS QUESTION IS TO BRING TO TAX THE SHARE PREMIUM OF THE ACT. WE FIND THAT THE ISSUE OF BRINGING THE SHARE OF THE ACT WAS NOT AN ISSUE WHICH WAS URGED BY THE APPELLANT REVENUE BEFORE THE TRIBUNAL. THE ONLY ISSUE WHICH WAS URGED BEFORE THE TRIBUNAL AS RECORDED IN PARA 11 OF THE IMPUGNED ORDER IS THE ADDITION OF S HARE CAPITAL AND SHARE APPLICATION MONEY IN THE HANDS OF THE ASSESSEE AS INCOME UNDER SECTION 28(IV) TAX (APPEALS) DID CONSIDER THE ISSUE OF THE ACT AND CONCLUDED THAT IT DOES NOT APPLY. THE REVENUE SEEMS TO HAVE ACCEPTED THE SAME AND DID NOT URGE THIS ISSUE BEFORE THE VENUE ALSO FAIRLY STATES THAT THE ISSUE OF APPLICABILITY OF TRIBUNAL. (B) IT IS A SETTLED POSITION IN LAW AS HELD BY THIS COURT IN [2002] 122 TAXMAN 643/256 ITR 395 (BOM.) THAT IN AN APPEAL UNDER THE ACT, THE HIGH COURT CAN ONLY DECIDE A QUESTION IF I TRIBUNAL EVEN IF NOT DETERMINED BY THE TRIBUNAL. THEREFORE, NO OCCASION TO CONSIDER THE QUESTION AS PRAYED FOR ARISES. (C) IN ANY CASE, WE MAY POINT OUT THAT THE AMENDMENT TO ADDITION OF PROVISO THERETO TOOK PLACE WITH EFFECT FROM APRIL 1, 2013. THEREFORE, IT IS NOT APPLICABLE FOR THE SUBJECT ASSESSMENT YEAR 2012 68 OF THE ACT IS CONCERNED, THE SAME CANNOT BE INVOKED IN THIS CASE, AS EVIDENCE WAS LED BY THE RESPONDENTS CAPACITY OF THE INVESTOR AS WELL AS THE GENUINENESS OF THE INVESTMENT. THERE ADMITTEDLY, THE ASSESSING OFFICER DID NOT INVOKE PREMIUM TO TAX. SIMILARLY, THE COMMISSIONER OF INCOME OF FACTS, FOUND THAT LIKELY THAT THE REVENUE MAY HAVE TAKEN AN INFORMED DECISION NOT TO URGE THE ISSUE OF SECTION 68 OF THE ACT BEFORE THE TRIBUNAL. (D) WE MAY ALSO POINT OUT THAT DECISION OF THIS COURT IN INDIA [2012] 19 TAXMANN.COM 176/207 TAXMAN 185/[2013] 359 ITR 450 BOM. PROCEE DED ON ITS OWN FACTS TO UPHOLD THE INVOCATION OF SETTLEMENT COMMISSION. IN THE ABOVE CASE, THE SETTLEMENT COMMISSION ARRIVED AT A FINDING OF FACT THAT THE SUBSCRIBERS TO SHARES CREDITWORTHY INASMUCH AS THEY DID NOT HAVE FINANCIAL STANDING WHICH WOULD ENABLE THEM TO MAKE AN INVESTMENT OF RS. 6,00,00,000 AT PREMIUM AT RS. 990 PER SHARE. IT WAS THIS FINDING OF THE FACT ARRIVED AT BY THE SETTLEMENT C THIS COURT IN ITS WRIT JURISDICTION. IN THE PRESENT CASE THE PERSON WHO HAVE SUBSCRIBED TO THE SHARE AND PAID SHARE PREMIUM HAVE ADMITTEDLY MADE STATEMENT ON OATH BEFORE THE ASSESSING OFFICER AS RECORDED BY THE TRIBUNAL THE AUTHORITIES THAT SHAREHOLDER/SHARE APPLICANTS WERE UNIDENTIFIABLE OR BOGUS. (E) IN THE ABOVE VIEW QUESTION NO. A IS NOT BEING ENTERTAINED IN VIEW OF THE DECISION IN TATA CHEMICAL LTD. (SUPRA). ACCORDINGLY, T REGARDING QUESTION B : (A) WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL UPHELD THE VIEW OF THE COMMISSIONER OF INCOME THEREFORE, CANNOT BE TAXED AS INC ORDER FOLLOWING THE DECISION OF THIS COURT IN VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND OF THE APEX COURT IN G. S. HOMES AND HOTEL (P.) LTD. (SUPRA). IN BOTH THE ABOVE CASES THE COURT HAS HELD THAT THE A ON CAPITAL ACCOUNT AND CANNOT BE CONSIDERED TO BE INCOME. (B) IT IS FURTHER PERTINENT TO NOTE THAT THE DEFINITION OF INCOME AS PROVIDED UNDER 2(24) OF THE ACT AT THE RELEVANT TIME DID NOT DEFINE AS INCOME ANY CONSIDERATION RECEIVED FOR ISSUE OF SHARE IN EXCESS OF ITS FAIR MARKET VALUE. THIS CAME INTO THE STATUTE ONLY WITH EFFECT FROM APRIL 1, 2013 AND THUS, WOULD HAVE, NO APPLICATION T RECEIVED BY THE RESPONDENT 2012- 13. SIMILARLY, THE AMENDMENT TO MADE SUBSE QUENT TO PREVIOUS YEAR RELEVANT TO THE SUBJECT ASSESSMENT YEAR 2012 CANNOT BE INVOKED. IT MAY BE POINTED OUT THAT THIS COURT IN INFRASTRUCTURE (P 4 M/S. UNIQUE HIRISE PVT. LTD THE ISSUE OF APPLICABILITY OF SECTION 68 OF THE ACT WAS NOT URGED BY THE REVENUE BEFORE THE (B) IT IS A SETTLED POSITION IN LAW AS HELD BY THIS COURT IN CIT V. TATA CHEMICALS LTD [2002] 122 TAXMAN 643/256 ITR 395 (BOM.) THAT IN AN APPEAL UNDER THE ACT, THE HIGH COURT CAN ONLY DECIDE A QUESTION IF I T HAD BEEN RAISED BEFORE THE TRIBUNAL EVEN IF NOT DETERMINED BY THE TRIBUNAL. THEREFORE, NO OCCASION TO CONSIDER THE QUESTION AS PRAYED FOR ARISES. (C) IN ANY CASE, WE MAY POINT OUT THAT THE AMENDMENT TO SECTION 68 ADDITION OF PROVISO THERETO TOOK PLACE WITH EFFECT FROM APRIL 1, 2013. THEREFORE, IT IS NOT APPLICABLE FOR THE SUBJECT ASSESSMENT YEAR 2012 - 13. SO FOR AS THE PRE OF THE ACT IS CONCERNED, THE SAME CANNOT BE INVOKED IN THIS CASE, AS EVIDENCE WAS LED BY THE RESPONDENTS - ASSESSEES BEFORE THE ASSESSING OFFICER WITH REGARD TO IDENTITY, CAPACITY OF THE INVESTOR AS WELL AS THE GENUINENESS OF THE INVESTMENT. THERE ADMITTEDLY, THE ASSESSING OFFICER DID NOT INVOKE SECTION 68 OF THE ACT TO BRING THE SHARE PREMIUM TO TAX. SIMILARLY, THE COMMISSIONER OF INCOME - TAX (APPEALS) ON CONSIDERATION OF FACTS, FOUND THAT SECTION 68 OF THE ACT CANNOT BE INVOKED. IN VIEW OF THE ABOVE, IT IS LIKELY THAT THE REVENUE MAY HAVE TAKEN AN INFORMED DECISION NOT TO URGE THE ISSUE OF OF THE ACT BEFORE THE TRIBUNAL. (D) WE MAY ALSO POINT OUT THAT DECISION OF THIS COURT IN MAJOR METALS LTD. V. UNION OF [2012] 19 TAXMANN.COM 176/207 TAXMAN 185/[2013] 359 ITR 450 BOM. DED ON ITS OWN FACTS TO UPHOLD THE INVOCATION OF SECTION 68 SETTLEMENT COMMISSION. IN THE ABOVE CASE, THE SETTLEMENT COMMISSION ARRIVED AT A FINDING OF FACT THAT THE SUBSCRIBERS TO SHARES OF THE ASSESSEE COMPANY WERE NOT CREDITWORTHY INASMUCH AS THEY DID NOT HAVE FINANCIAL STANDING WHICH WOULD ENABLE THEM TO MAKE AN INVESTMENT OF RS. 6,00,00,000 AT PREMIUM AT RS. 990 PER SHARE. IT WAS THIS FINDING OF THE FACT ARRIVED AT BY THE SETTLEMENT C OMMISSION WHICH WAS NOT DISTURBED BY THIS COURT IN ITS WRIT JURISDICTION. IN THE PRESENT CASE THE PERSON WHO HAVE SUBSCRIBED TO THE SHARE AND PAID SHARE PREMIUM HAVE ADMITTEDLY MADE STATEMENT ON OATH BEFORE THE ASSESSING OFFICER AS RECORDED BY THE TRIBUNAL . NO FINDING IN THIS CASE HAS BEEN GIVEN BY THE AUTHORITIES THAT SHAREHOLDER/SHARE APPLICANTS WERE UNIDENTIFIABLE OR BOGUS. (E) IN THE ABOVE VIEW QUESTION NO. A IS NOT BEING ENTERTAINED IN VIEW OF THE DECISION IN TATA CHEMICAL LTD. (SUPRA). ACCORDINGLY, T HE QUESTION (A) IS NOT ENTERTAINED. REGARDING QUESTION B : (A) WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL UPHELD THE VIEW OF THE COMMISSIONER OF INCOME - TAX (APPEALS) TO HOLD THAT SHARE PREMIUM IS CAPITAL RECEIPT AND THEREFORE, CANNOT BE TAXED AS INC OME. THIS CONCLUSION WAS REACHED BY THE IMPUGNED ORDER FOLLOWING THE DECISION OF THIS COURT IN VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND OF THE APEX COURT IN G. S. HOMES AND HOTEL (P.) LTD. (SUPRA). IN BOTH THE ABOVE CASES THE COURT HAS HELD THAT THE A MOUNT RECEIVED ON ISSUE OF SHARE CAPITAL INCLUDING PREMIUM ARE ON CAPITAL ACCOUNT AND CANNOT BE CONSIDERED TO BE INCOME. (B) IT IS FURTHER PERTINENT TO NOTE THAT THE DEFINITION OF INCOME AS PROVIDED UNDER OF THE ACT AT THE RELEVANT TIME DID NOT DEFINE AS INCOME ANY CONSIDERATION RECEIVED FOR ISSUE OF SHARE IN EXCESS OF ITS FAIR MARKET VALUE. THIS CAME INTO THE STATUTE ONLY WITH EFFECT FROM APRIL 1, 2013 AND THUS, WOULD HAVE, NO APPLICATION T O THE SHARE PREMIUM RECEIVED BY THE RESPONDENT / ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 13. SIMILARLY, THE AMENDMENT TO SECTION 68 OF THE ACT BY ADDITION OF PROVISO WAS QUENT TO PREVIOUS YEAR RELEVANT TO THE SUBJECT ASSESSMENT YEAR 2012 CANNOT BE INVOKED. IT MAY BE POINTED OUT THAT THIS COURT IN INFRASTRUCTURE (P .) LTD. [2017] 80 TAXMANN.COM 272/2 47 TAXMAN 245/394 ITR 680 I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 M/S. UNIQUE HIRISE PVT. LTD OF THE ACT WAS NOT URGED BY THE REVENUE BEFORE THE CIT V. TATA CHEMICALS LTD . [2002] 122 TAXMAN 643/256 ITR 395 (BOM.) THAT IN AN APPEAL UNDER SECTION 260A OF T HAD BEEN RAISED BEFORE THE TRIBUNAL EVEN IF NOT DETERMINED BY THE TRIBUNAL. THEREFORE, NO OCCASION TO CONSIDER THE SECTION 68 OF THE ACT BY THE ADDITION OF PROVISO THERETO TOOK PLACE WITH EFFECT FROM APRIL 1, 2013. THEREFORE, IT IS NOT 13. SO FOR AS THE PRE -AMENDED SECTION OF THE ACT IS CONCERNED, THE SAME CANNOT BE INVOKED IN THIS CASE, AS EVIDENCE WAS LED ASSESSEES BEFORE THE ASSESSING OFFICER WITH REGARD TO IDENTITY, CAPACITY OF THE INVESTOR AS WELL AS THE GENUINENESS OF THE INVESTMENT. THERE FORE, OF THE ACT TO BRING THE SHARE TAX (APPEALS) ON CONSIDERATION OF THE ACT CANNOT BE INVOKED. IN VIEW OF THE ABOVE, IT IS LIKELY THAT THE REVENUE MAY HAVE TAKEN AN INFORMED DECISION NOT TO URGE THE ISSUE OF MAJOR METALS LTD. V. UNION OF [2012] 19 TAXMANN.COM 176/207 TAXMAN 185/[2013] 359 ITR 450 BOM. SECTION 68 OF THE ACT BY THE SETTLEMENT COMMISSION. IN THE ABOVE CASE, THE SETTLEMENT COMMISSION ARRIVED AT A OF THE ASSESSEE COMPANY WERE NOT CREDITWORTHY INASMUCH AS THEY DID NOT HAVE FINANCIAL STANDING WHICH WOULD ENABLE THEM TO MAKE AN INVESTMENT OF RS. 6,00,00,000 AT PREMIUM AT RS. 990 PER SHARE. IT WAS THIS OMMISSION WHICH WAS NOT DISTURBED BY THIS COURT IN ITS WRIT JURISDICTION. IN THE PRESENT CASE THE PERSON WHO HAVE SUBSCRIBED TO THE SHARE AND PAID SHARE PREMIUM HAVE ADMITTEDLY MADE STATEMENT ON OATH BEFORE THE . NO FINDING IN THIS CASE HAS BEEN GIVEN BY THE AUTHORITIES THAT SHAREHOLDER/SHARE APPLICANTS WERE UNIDENTIFIABLE OR BOGUS. (E) IN THE ABOVE VIEW QUESTION NO. A IS NOT BEING ENTERTAINED IN VIEW OF THE DECISION IN HE QUESTION (A) IS NOT ENTERTAINED. (A) WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL UPHELD THE VIEW OF THE TAX (APPEALS) TO HOLD THAT SHARE PREMIUM IS CAPITAL RECEIPT AND OME. THIS CONCLUSION WAS REACHED BY THE IMPUGNED ORDER FOLLOWING THE DECISION OF THIS COURT IN VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND OF THE APEX COURT IN G. S. HOMES AND HOTEL (P.) LTD. (SUPRA). IN BOTH THE ABOVE CASES THE MOUNT RECEIVED ON ISSUE OF SHARE CAPITAL INCLUDING PREMIUM ARE (B) IT IS FURTHER PERTINENT TO NOTE THAT THE DEFINITION OF INCOME AS PROVIDED UNDER SECTION OF THE ACT AT THE RELEVANT TIME DID NOT DEFINE AS INCOME ANY CONSIDERATION RECEIVED FOR ISSUE OF SHARE IN EXCESS OF ITS FAIR MARKET VALUE. THIS CAME INTO THE STATUTE ONLY WITH O THE SHARE PREMIUM ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR OF THE ACT BY ADDITION OF PROVISO WAS QUENT TO PREVIOUS YEAR RELEVANT TO THE SUBJECT ASSESSMENT YEAR 2012 -13 AND CANNOT BE INVOKED. IT MAY BE POINTED OUT THAT THIS COURT IN CIT V. GAGANDEEP 47 TAXMAN 245/394 ITR 680 (BOM.) HAS WHILE REFUSING TO ENTERTAIN A QUESTION WITH REGARD TO HAS HELD THAT THE PROVISO TO 2013 WILL NOT HAVE RETROSPECTIVE EFFECT AND WOULD BE EFFECTIVE ONLY FROM THE ASSESSMENT YEAR 2013-14. (C) IN VIEW OF THE ABOVE, QUESTION NO. B AS PROPOSED ALSO DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND IN THE APEX COURT IN G. S. HOMES AND HOTELS (P.) LTD. (SUPRA). THUS NOT ENTERTAINED. THEREFORE, ALL THE SIX APPEALS ARE DISMISSED. NO ORDER 3.3.2. IN VIEW OF THE AFORESAID OBSERVATIONS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENT RELIED UPON HEREINABOVE, WE HOLD THAT THE LD. CIT(A) HAD RIGHTLY GRANTED RELIEF TO THE ASSESSEE IN THE WHICH IN OUR CONSIDERED OPINION, DOES NOT REQUIRE ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7.1. THIS ORDER WAS FOLLOWED COMME RCIAL PVT. LTD. IN ITA NO. 686/KOL/2017, ORDER DT. 22/11/2018. PROPOSITIONS OF LAW WERE LAID DOWN IN THE FOLLOWING CASES: ITO VS. M/S. SAVERA TOWERS PVT LTD. IN ITA NO. 2275/KOL/2016; ASSESSMENT YEAR 2012- 13, ORDER DT. 05/12/2018 ITO VS. M/S. POSITIVE PROPERTIES PVT. LTD. IN ITA NO. 2274/KOL/2016; ASSESSMENT YEAR 2012- 13, ORDER DT. 09/01/2019 ANANYA DEVELOPERS PVT. LTD. VS. ITO IN ITA NO. 285/KOL/2017; ASSESSMENT YEAR 2012- 13, ORDER DT. 14/06/2019 8. CONSISTENT WITH THE VIEW TAKEN BY THE CO THESE ORDERS, WE HAVE TO NECESSARILY HOLD THAT THE ADDITION OF ONLY SHARE PREMIUM BY ACCEPTING THE FACE VALUE OF THE SHARES AS GENUINE, CANNOT BE SUSTAINED. THUS THE ORDER OF THE LD. CIT(A) AND DISMISS THIS APPE 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE SD/- [S.S. GODARA ] JUDICIAL MEMBER DATED : 20.09.2019 {SC SPS} 5 M/S. UNIQUE HIRISE PVT. LTD (BOM.) HAS WHILE REFUSING TO ENTERTAIN A QUESTION WITH REGARD TO SECTION 68 HAS HELD THAT THE PROVISO TO SECTION 68 OF THE ACT INTRODUCED WITH EFFECT FROM APRIL 1, 2013 WILL NOT HAVE RETROSPECTIVE EFFECT AND WOULD BE EFFECTIVE ONLY FROM THE ASSESSMENT (C) IN VIEW OF THE ABOVE, QUESTION NO. B AS PROPOSED ALSO DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW AS IT IS AN ISSUE CONCLUDED BY THE DECISION OF THIS COURT IN VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND IN THE APEX COURT IN G. S. HOMES AND HOTELS (P.) LTD. (SUPRA). THUS NOT ENTERTAINED. THEREFORE, ALL THE SIX APPEALS ARE DISMISSED. NO ORDER AS TO COSTS.' 3.3.2. IN VIEW OF THE AFORESAID OBSERVATIONS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENT RELIED UPON HEREINABOVE, WE HOLD THAT THE LD. CIT(A) HAD RIGHTLY GRANTED RELIEF TO THE ASSESSEE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WHICH IN OUR CONSIDERED OPINION, DOES NOT REQUIRE ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. THIS ORDER WAS FOLLOWED BY THE TRIBUNAL IN THE CASE OF ITO VS. M/S. BSNL RCIAL PVT. LTD. IN ITA NO. 686/KOL/2017, ORDER DT. 22/11/2018. PROPOSITIONS OF LAW WERE LAID DOWN IN THE FOLLOWING CASES: - ITO VS. M/S. SAVERA TOWERS PVT LTD. IN ITA NO. 2275/KOL/2016; ASSESSMENT YEAR 13, ORDER DT. 05/12/2018 POSITIVE PROPERTIES PVT. LTD. IN ITA NO. 2274/KOL/2016; ASSESSMENT 13, ORDER DT. 09/01/2019 ANANYA DEVELOPERS PVT. LTD. VS. ITO IN ITA NO. 285/KOL/2017; ASSESSMENT YEAR 13, ORDER DT. 14/06/2019 CONSISTENT WITH THE VIEW TAKEN BY THE CO -ORD INATE BENCHES OF THIS TRIBUNAL IN THESE ORDERS, WE HAVE TO NECESSARILY HOLD THAT THE ADDITION OF ONLY SHARE PREMIUM BY ACCEPTING THE FACE VALUE OF THE SHARES AS GENUINE, CANNOT BE SUSTAINED. THUS THE ORDER OF THE LD. CIT(A) AND DISMISS THIS APPE AL OF THE REVENUE. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 20 TH DAY OF SEPTEMBER, 201 9 [J. SUDHAKAR REDDY ACCOUNTANT MEMBER I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 M/S. UNIQUE HIRISE PVT. LTD SECTION 68 OF THE ACT OF THE ACT INTRODUCED WITH EFFECT FROM APRIL 1, 2013 WILL NOT HAVE RETROSPECTIVE EFFECT AND WOULD BE EFFECTIVE ONLY FROM THE ASSESSMENT (C) IN VIEW OF THE ABOVE, QUESTION NO. B AS PROPOSED ALSO DOES NOT GIVE RISE TO ANY OF LAW AS IT IS AN ISSUE CONCLUDED BY THE DECISION OF THIS COURT IN VODAFONE INDIA SERVICES (P.) LTD. (SUPRA) AND IN THE APEX COURT IN G. S. HOMES AND HOTELS 3.3.2. IN VIEW OF THE AFORESAID OBSERVATIONS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENT RELIED UPON HEREINABOVE, WE HOLD THAT THE LD. CIT(A) PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WHICH IN OUR CONSIDERED OPINION, DOES NOT REQUIRE ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED ITO VS. M/S. BSNL RCIAL PVT. LTD. IN ITA NO. 686/KOL/2017, ORDER DT. 22/11/2018. SIMILAR ITO VS. M/S. SAVERA TOWERS PVT LTD. IN ITA NO. 2275/KOL/2016; ASSESSMENT YEAR POSITIVE PROPERTIES PVT. LTD. IN ITA NO. 2274/KOL/2016; ASSESSMENT ANANYA DEVELOPERS PVT. LTD. VS. ITO IN ITA NO. 285/KOL/2017; ASSESSMENT YEAR INATE BENCHES OF THIS TRIBUNAL IN THESE ORDERS, WE HAVE TO NECESSARILY HOLD THAT THE ADDITION OF ONLY SHARE PREMIUM BY ACCEPTING THE FACE VALUE OF THE SHARES AS GENUINE, CANNOT BE SUSTAINED. THUS , WE UPHOLD 9 . SD/- SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. UNIQUE HIRISE PVT. LTD FLAT NO. 1E 6, M.G. BASAK ROAD BLOCK-1 PHASE-II KOLKATA 700 080 2. INCOME TAX OFFICER, WARD- 10(4), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6 M/S. UNIQUE HIRISE PVT. LTD COPY OF THE ORDER FORWARDED TO: 10(4), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 2272/KOL/2016 ASSESSMENT YEAR: 2012-13 M/S. UNIQUE HIRISE PVT. LTD TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES