DCIT,CC-7(3), MUMBAI, MUMBAI V. M/S CLASSIC CREATIONS IMPEX PVT LTD., MUMBAI

ITA 4585/MUM/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8669 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHARAMVIR SINGH LD
• Keywords: Unexplained cash credit; Share purchase agreement; Accommodation entries; Retraction
• Section: 131; 68; 148; 132; 143(3); 133(6); 207

Judgement Text

1 आयकर अपीलीय अधिकरण “सी” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI माननीय श्री महावीर स िंह, उपाध्यक्ष एवुं माननीय श्री मनोज कु मार अग्रवाल ,लेखा दस्य के मक्ष। BEFORE HON’BLE SHRI MAHAVIR SINGH, VP AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकरअपील िं./ I.T .A. No. 4585/ Mum /2019 (धििाारण वर्ा / Ass essm ent Yea r: 200 9-10 DCIT, CC – 7(3), R. No. 655, Aaykar Bhavan M. K. Road, Mumbai-400 020 बिाम / Vs. M/s C lassic Crea ti ons Im pex P vt. L t d. K-W ing, 3 rd f loor, T ex Cent re (Ne xt to H DF C Ban k), Chandi va l i, Andheri (W ), Mum bai-400 072 स्थायीलेखा िं./जीआइआर िं./PAN/GIR No. AABCC-3350-M (अपीलाथी/Appellant) : (प्रत्यथी / Respondent) Assessee by : Shri Rushabh Mehta – Ld. AR Revenue by : Shri Dharamvir Singh – Ld. DR ुनवाई की तारीख/ Date of Heari ng : 24/11/2021 घोषणा की तारीख / Date of P ro nou nc ement : 18/02/2022 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by revenue for Assessment Year (AY) 2009-10 arises out of the order of learned Commissioner of Income-Tax (Appeals)-49, Mumbai [CIT(A)] dated 12/04/2019 in the matter of assessment framed by learned Assessing Officer (AO) u/s 143(3) r.w.s. 147 on 19/12/2016. The sole ground urged by the revenue read as under: - In the circumstances and on the facts of the case and in law, the CIT(A) has erred in deleting the addition of Rs.3,23,50,000/- made by the AO as unexplained cash credit received from M/s. Emma Auto Ancillary Pvt. Ltd. in the form of share 2 application money u/s. 68 of the Act without considering the fact that the statement of Shri Satish Agrawal and other related concerns were recorded u/s. 131 of the Act wherein they had stated that the above mentioned company was engaged in the business of providing accommodation entries. 2. Having heard rival submissions and after careful consideration of material on record including the orders of lower authorities, our adjudication to the subject matter of appeal would be as given in succeeding paragraphs. Assessment Proceedings 3.1 The material facts are that the assessee being resident corporate assessee is stated to be engaged as builder and developer. The assessee is stated to be part of Lotus group. The original return of income filed by the assessee was processed u/s 143(1). However, the case was reopened pursuant to search action u/s 132 on M/s Lotus / Kamdhenu / Green Valley group on 09/10/2014. During the search action, statement of Shri Satish Agarwal (director of Assessee Company) was recorded wherein he could not provide the details of the share application money of Rs.349.50 Lacs as received by the assessee company during AYs 2009-10 & 2010-11. The said money was accepted to be unexplained cash credit in the hands of the assessee company. Accordingly, the case was reopened and notice u/s 148 was issued on 28/03/2016. In response to the same, the assessee offered the original return of income. 3.2 During the course of assessment proceedings, the assessee was show-caused as to why the share application money of Rs.323.50 Lacs as received during this year from sole share-applicant i.e., M/s Emma Auto Ancillary Private Ltd. (EAAPL) be not treated as unexplained cash credit in view of admission made by Shri Satish Agarwal in the recorded 3 statement. However, the assessee maintained that the primary onus as required u/s 68 to prove the identity of the share applicant, their creditworthiness and genuineness of the transactions stood discharged by various documentary evidences viz. Copies of Income Tax return of share applicant, their financial statements, bank statement, copy of PAN card and duly signed forms filed with ministry of corporate affairs. Regarding receipt of share premium, it was stated that due procedure was followed and the premium was received keeping in view the future prospects of the business. It was the prerogative of Board of Directors to decide the premium amount and it would be the wisdom of the share holders whether they want to subscribe to shares at a premium. It was also submitted that the admission was made under pressure and the statement stood retracted by the director on 16/10/2014. Further, share application money was utilized to make advances to another group concern i.e., M/s Lotus Spaces Pvt. Ltd. for ongoing project at Lotus Park, Thane. The copy of retraction statement was fled before Ld. AO wherein it was submitted that the statement was given under pressure and undue influence. 3.3 Keeping in view the submissions made by the assessee, another statement was recorded u/s 131 from Shri Satish Agarwal on 19/12/2016 wherein it was confirmed by him that the earlier statement was given under undue pressure and the same stood retracted on 16/10/2014. The relevant portion of the same has been extracted in the assessment order. However, the retraction was disregarded by Ld. AO in the light of various judicial pronouncements. It was also held that there was no logic for the investor to subscribe to share at huge premium. The assessee company did not carry out any business since its incorporation. Similarly, 4 no business was carried out by EAAPL and its returned income was ‘Nil’. However, it was noted that the investor entity i.e., EAAPL had received Share Application money of Rs.403.35 Lacs and invested the same in the assessee company. The investor entity did not have funds of its own. It was alleged that the funds invested in the assessee company were sourced from other fictitious entities. No logic explains the commercial expediency for investor entity to make investment in the assessee company. To verify the transactions, summons was issued u/s 131 to directors of investor entity but none attended. The field enquiries by ward inspector revealed that no office existed at the given address and no business activity was being carried out from that premises. Therefore, it was held that assessee was unable to prove the creditworthiness of the investor entity. Finally, the share application money as received by the assessee was added as unexplained cash credit u/s 68. Appellate Proceedings 4. During appellate proceedings, the assessee challenged the validity of reassessment proceedings which were rejected by Ld. CIT(A). On merits, the assessee drew attention to the documentary evidences filed by it to establish identity of the investor entity, its creditworthiness and genuineness of the transaction. It was reiterated that it was the prerogative of Board of Directors to decide the premium amount and it would be the wisdom of the share-holders whether they want to subscribe to shares at a premium. It was submitted that the share- application was duly supported by the financial statements. The transactions took place through banking channels and all the credits stood explained. The attention was also drawn to the fact that the share- application money received by the assessee was invested in another 5 group entity for an ongoing project. As per the decision of Hon’ble Bombay High Court in CIT V/s Gagandeep Infrastructure Private Ltd. (80 Taxmann.com 272), the assessee was not required to prove the source of the source since amendment to Sec.68 was introduced only w.e.f. AY 2013-14. Reliance was placed on many other decisions to support the fact that onus casted upon assessee, in terms of requirement of Sec.68, stood discharged and therefore, no addition could be sustained u/s 68. 5. The submissions filed by the assessee found favor with Ld. CIT(A). Concurring with the same, the Ld. CIT(A) rendered the following findings:- 7.3 I have carefully considered the assessment order and the submissions of the learned counsel. Search was conducted on Lotus group on 09.10.2014. During the course of search, statement of Mr. Satish Aggarwal was recorded on 09.10.2014 wherein he stated that Share application money of Rs.3,49,50,000/- received by the assessee from M/s. Emma Auto Ancillary Pvt. Ltd. is only an accommodation arrangement and the amount of Rs.3,49,50,000/- is an unexplained credit in the books of the appellant. During the year under consideration, the appellant has received share application money of Rs.3,23,50,000/- from M/s. Emma Auto Ancillary Pvt. Ltd. and the balance amount was received in AY 2010-11. The main issue involved in the present appeal is in relation to addition u/s. 68 of Rs.3,23,50,000/- in respect of share application money received by the appellant from M/s. Emma Auto Ancillary Pvt. Ltd. during the year under consideration. The assessee claims that no addition of Rs.3,23,50,000/- is called for as it has completely established the three ingredients viz. identity, genuineness and creditworthiness as envisaged u/s. 68 of the Act with voluminous documents placed on record whereas the AO has treated the same to be bogus and added the same u/s. 68 of the Act merely on surmises and conjectures. Thus, the essential dispute is with regard to the share application money received by the appellant from M/s. Emma Auto Ancillary Pvt. Ltd. and whether the assessee has discharged its onus cast upon by the provisions of section 68 of the Act. 7.4. The assessee has submitted documents as under in the course of assessment as well as before me: i) Copy of PAN of investor ii) Copy of duly signed Share Application forms filed by the alleged Investor with the appellant company while applying the shares. iii) Financial Statements & ITR Acknowledgement of the alleged investor company, iv) Copy of relevant extract of Bank Statement of the alleged investor company and of the appellant company reflecting the said transactions, v) Copy of confirmation of investor 6 vi) Copy of the Return of Allotment (Form 2) filed with the Registrar of Companies vii) Copy of Form no. 5 filed with ROC viii)Board Resolution passed by the alleged investor company for investment in shares of the appellant company, ix) Copy of boards' resolution of the appellant company dated 30.10.2008 for issuing shares at premium and allotment of shares to the alleged investor company. x) Copy of share certificate issued to the investor company. 7.5. I have perused the aforesaid documents. The appellant has placed on record share application forms, board resolutions of the appellant & investor company, ITR & Financials of the investor company, PAN Card of the investor company, Confirmation of the investor company, Forms filed before ROC, Share certificate. etc, before the A.O for necessary verification. The AO has not found any discrepancies in these documents. It was further held by Ld. CIT(A) that the allegations of Ld. AO that the investment were sourced by the investor from fictitious entities, was not backed up by any investigation. The assessee was not required to prove the source of source since the amendment made to Sec.68 was applicable only w.e.f. AY 2013-14 as held by Hon’ble Bombay High Court in CIT V/s Gagandeep Infrastructure Private Ltd. (80 Taxmann.com 272). Similar was the view in the decision of Hon’ble Bombay High Court in Pr. CIT V/s Veedhata Tower Private Ltd. (403 ITR 415) wherein it was held that prior to AY 2013-14, it was not obligatory for assessee to explain the source of the source of a credit appearing in its books of accounts. Similar was the decision of Hon’ble Court in Pr. CIT V/s M/s S.D.B. States Pvt. Ltd. (ITA No.1356 of 2105 dated 27.03.2018) as well as in CIT V/s Paradise Inland Shipping Pvt. Ltd. (ITA No.66 of 2016). Finally, it was held by Ld. CIT(A) as under: - 7.8 Hence, I do not find any force in the assertion of the AO as the appellant is not required to explain source of source of funds invested by the alleged investor company in support of which the appellant has relied on various judicial precedents. The appellant has duly disclosed / recorded the Share application money received from M/s. Emma Auto Ancillary Pvt. Ltd. in the books of accounts as well as income tax returns filed and the transactions have been routed through bank statements and duly recorded in books of accounts; thus all the credits in the bank account of the appellant stands explained. 7 7.9. Further, the AO has pointed out that the appellant company does not carry out any business activity and hence, there is no logic of commercial expediency as to why any investor will invest such a huge premium in a company which does not carry out any business activity. However, it is now a well settled law that the tax department cannot question the charging of high premium in view of the fact that prior to AY 2013-14, there was no bar on issuing shares at premium from any legislated law of the land and that, in appellant's case, it was the prerogative of Board of Directors to decide the premium amount and it was the wisdom of the shareholders whether they would want to subscribe to shares at a premium. This view has been taken in the decision of the Hon'ble Bombay High Court in case of Green Infra Ltd v. ITO [2017] 78 taxmann.com 340 (Bombay). More recently, SLP filed by the revenue in similar context in the case of PCIT v. Chain House International (P.) Ltd. reported in [2019] 103 taxmann.com 435 (SC) has also been dismissed by the Hon'ble Apex Court. 7.10. Moreover, the appellant also emphasized the fact that it is not a case where anything adverse against the assessee had been found either in search or on inquiry by AO. Also, it is not a case where any entry operator has admitted to have provided any accommodation entry. Furthermore, Shri Satish Aggarwal on whose statement reliance was placed by AO, was also not connected with the assessee at the time when the investor had parked the funds in the company and nonetheless, he has already retracted his statement which cannot be used against the assessee. 7.11 The AO has raised a point that it is hard to explain the business sense as to why, investor after investing such a huge premium has subsequently exited the company by selling shares at face value. In this regard, the appellant has submitted that the price at which the shares are to be purchased / sold is the prerogative of the parties involved in the purchase and sale transactions and the appellant company has no role to play in as much as its shares are transacted between various parties. This feature of purchase of shares by new shareholders at a lower value is peculiar, however, it is equally vital to note that the said transaction is between erstwhile shareholders and the new shareholders wherein there is no role of the appellant company. I believe that the analogy of above referred judgements in case of Green Infra Ltd v. ITO [2017] 78 taxmann.com 340 (Bombay) and PCIT v. Chain House International (P.) Ltd. [2019] 103 taxmann.com 435 (SC) fairly applies as there should not be any question on subsequent sale of shares at face value as it is the prerogative of the parties involved in the purchase & sale transactions and the relevant provisions of law pertaining to-that year, if applicable, might have been invoked in the hands of the buyers/sellers of such shares as the case may be. Thus, this fact is not relevant to disregard that the assessee has not established genuineness, identity and creditworthiness of the investor. Hence, I agree with the submission of the appellant that no addition should have been made on the ground that shares were issued at high premium and shares were subsequently sold at face value as it has proved the genuineness, identity and creditworthiness of the investor. 7.12. During the course of assessment proceedings, the AO had issued summons u/s 131 to Shri S.K. Kulhari and Shri Shyamchandra Sharma, the directors of M/s. Emma Auto Ancillary Pvt. Ltd. requiring them to attend the hearing. However, the AO stated in his assessment order that both the directors have not attended or complied with the summons till date. Further, the inspector deputed to servx the summons no-lice found that the registered office of the investor company as stated by the appellant company is a flat used for residential purpose and no business activity was carried out from the said premise. In view of the above, the AO has 8 doubted the existence and credibility of the investor company. In this regard, the appellant has contended that non-compliance to summons u/s. 131 issued by the Assessing Officer to the directors of the investor company was beyond the control of the appellant and that cannot be a basis to suspect a transaction. Further, the appellant has highlighted that it is not a case where the registered premises of the investor company could not be located by the Id. Assessing Officer which is evident from the fact that the notice of summons was duly served by the inspector. Further, it is undisputed that notice u/s. 133(6) was also issued by the Id. Assessing Officer to M/s. Emma Auto Ancillary Pvt. Ltd. which was duly served and the required details were also submitted by them. Although there might have been no compliance to summons u/s. 131 due to some reason beyond the control of the appellant; the address of the investor company was successfully located by the Id. AO and there was no non-compliance in regard to notice u/s. 133(6) and therefore, the identity & existence of above mentioned party and genuineness of the transaction was proved beyond doubt. Further, the AO's observation that the registered premises of the investor company is now being used by its director for residential purpose does not bring out anything adverse about the transaction between the appellant company and the investor company as the transaction was more than 6 years old which is a long period and it is quite normal that in such a long time gap, the director would have shifted their business operations to some other premises. Even various Hon'ble Courts have taken a view that mere failure of creditor / investor 7 lender to appear before the AO cannot invite addition if basic facts and material are on record. In fact, in the present case, notices were duly served and even compliance to notice u/s. 133(6) affirming the transaction was made by the alleged investor. In substance, nothing adverse has been brought on record by the AO in the course of his inquiry. Further, it is also noted that the AO has not brought on record any statement of entry operator who has admitted that the alleged investor is Jamakharchi / bogus company. 7.13. In his statement, Shri Satish Agarwal has stated that Share application money of Rs.3,23,50,000/- received from M/s. Auto Ancillary Pvt. Ltd. is only an accommodation arrangement. However, the appellant argues that Shri Satish Agarwal had no role to play in connection with the alleged transaction undertaken in the year under consideration as he was not even a director in the company. It is also observed that the aforesaid statement relied upon by the AO is retracted by Shri Satish Agarwal with corroborative evidences and that his earlier statement was based on influence and pressure of search party. The retraction affidavit of Shri Satish Aggarwal was furnished in the course of assessment as well as before me. In the course of assessment proceedings, statement of Shri. Satish Aggarwal was recorded before the AO wherein he has affirmed his retraction and clarified that the earlier statement given by him was recorded under pressure and undue influence. In his retraction statement, he also clarified that at the time of search, he could not provide the details to prove the identity, creditworthiness and genuineness of the transaction of the receipt of Share application money in M/s. Classic Creation Impex P. Ltd. amounting to Rs.3,49,50,000/-. Along with his retraction affidavit, Shri Satish Aggarwal also submitted the documentary evidences in support of the receipt of Share Application Money such as Application form of Equity Shares, PAN of the applicant, ITR of the applicant, Balance Sheet of the applicant, Bank Statement highlighting the payment & Board Resolution regarding the investment. Satish Aggarwal. Hence, mere statement of Shri Satish Agarwal has no evidentiary value unless backed with cogent finding by the AO. Reference in this regard is also invited 9 to the CBDT Instruction F.No.286/98/2013-IT (INV.II) dated 18/12/2014 and letter dated 10/03/2003 issued by the Ministry of Finance & Company Affairs wherein it is stated that the search party must focus on collection of evidences and not merely admission/ confession of additional income. The Hon'ble Gujarat High Court has relying on the aforesaid instructions upheld the view that addition should not be made based on oral confession in the case of CIT v. Ramanbhai Patel (TA no. 207 of 2008) and Chetnaben J Shah v. ITO [TA no. 1437 of 2007]. Thus, respectfully following the CBDT circular as well as the decision cited by the assesses (supra), I find that the addition cannot be sustained merely on the basis of the statements taken during the search devoid of any evidence/material to incriminate the assessee. 7.14. Section 68 is not a charging section but a deeming fiction dealing with the burden of proof. The section casts initial onus u/s. 68 of the Act on the assessee to prove identity, genuineness and creditworthiness of the transaction to the satisfaction of the AO. If the assessee fails to do so or the explanation offered by him is not satisfactory to the AO, the AO is empowered to add the same to the total income of the assessee. The said power is to be exercised judiciously by the AO. Thus, once the initial onus is discharged by the assessee, the onus shifts on the AO to bring out fallacies in evidence brought by the assessee or by bringing new evidence that indicate the transactions undertaken by the assessee are non- genuine. Thus, the section deals with an equilibrium of onus of proof and must be viewed to evaluate as to whether the evidences brought by the assessee or AO weigh more and accordingly in whose favour the equilibrium bends. In the present case, on one hand, the assessee has placed various documents relating to the alleged transaction of share application money of Rs.3,23,50,000/- received by the assessee during the year under consideration. The transaction are also carried out through account payee cheques. Accordingly, the assessee has discharged its onus u/s 68 of the Act by substantiating the source of the share application money. On the contrary, the Assessing Officer has solely placed reliance on the statement of Shri Satish Agarwal. In fact, during the course of assessment proceedings, enquiry were made by the AO in form of issue of notice u/s. 133(6) which was duly complied by the investor. Even the evidences referred above were not disputed by the Assessing Officer. 7.15. During the course of appellate proceedings, the Id. Counsel was also asked to submit the status of the company as per the Company Master Data with Registrar of Companies (ROC). On perusal of the company master data of the alleged investor, it is seen that the said company was active in filing its annual accounts with the ROC for the year under consideration. The case law of Hon’ble Apex Court in Pr.CIT V/s NRA Iron & Steel Pvt. Ltd. and other decision was held to be not applicable as per following observations: - 7.17 The submission of the appellant is considered. In case of NRA Iron & Steel, reopening was based on the statement of entry operator whereas in case of assessee, there is no statement of any entry operator to allege that the investor company is a bogus company. The AO has solely relied on the statement of Shri 10 Satish Agarwal which was retracted by him stating that it was made by him under undue influence and pressure. Mr. Satish Agarwal has also corroborated his retraction with vital evidences in the form of application form of investor, PAN of investor, ITR of investor, bank statement highlighting the payment and Board Resolution regarding the investment to substantiate the identity, genuineness and creditworthiness of the investor. In case of NRA Iron & Steel, there were serious doubts about the identity & existence of the investor companies whereas in assessee's case, the identity & existence was proved as the inspector deputed to serve the summons u/s. 131 successfully located the premises of the investor company and he was also satisfied that the said premises belong to the director of the company and not of any other person and accordingly the notice was duly served. In case of NRA Iron & Steel, there were many shortcomings and anomalies observed in the letters filed in response to notice u/s. 133(6) issued to the investors is totally absent in the appellant's case. 7.18. In case of NDR Promoters, reopening was based on the statement of entry operator during the course of search action on a third party i.e. Tarun Goyal who admitted that all the 5 investor companies are controlled by him and are bogus companies. Various evidences & material on bogus transaction was found during the course of search action on Shri Tarun Goyal which indicate that all the 5 investor companies are controlled & managed by Tarun Goyal. Whereas in case of assessee, there is no such entry operator to allege that the investor company is a bogus company. The modus operand! in the above case was that, money was circulated by first depositing cash in the bank account of one such company, and thereupon it was transferred/circulated within the group companies before cheque was issued to the beneficiary. However, there is no such finding in appellant's case. In this regard, the appellant also relied upon the decision the Mumbai Tribunal in the case of ITO v. Vulvan Traders (ITA N0.4137/Mum/2015) wherein on similar facts, the above decision in case of NDR Promoters has been explicitly distinguished. 7.19 Hence, the submission of the appellant that the above decisions are distinguishable, is found to be satisfactory. Finally, the impugned addition as made by Ld. AO was deleted. Aggrieved, the revenue is in further appeal before us. Our findings and Adjudication 6. After careful consideration of factual matrix as enumerated in the preceding paragraph, it could be seen that the assessee group was subjected to search proceedings. During the course of search, the statement of Shri Satish Agarwal (director of Assessee Company) was recorded wherein the share application money was accepted to be unexplained cash credit. However, this statement stood retracted on 16/10/2014 on the ground that this statement was given under pressure 11 and undue influence. This position has been maintained in statement recorded by Ld. AO u/s 131 from Shri Satish Agarwal on 19/12/2016. We find that except for this statement, there is no material evidence before Ld. AO to hold that the share application money was unexplained cash credit for the assessee. In such a case, the admission made would lose its evidentiary value. It could also be gathered that EAAPL is the sole investor in the assessee company. The Ld. AO has rendered findings in the assessment order that the investments made by EAAPL has been sourced out of loans obtained from other entities. This is an undisputed fact. Further the share application money has been utilized by the assessee to make advances to another group concern i.e., M/s Lotus Spaces Pvt. Ltd. for ongoing project at Lotus Park, Thane. This being so, by furnishing various documentary evidences, the assessee was successful in establishing the source of share-application money. In this year, the assessee is not required to prove the source of source since the amendment made to Sec.68 was applicable only w.e.f. AY 2013-14 as held by Hon’ble Bombay High Court in CIT V/s Gagandeep Infrastructure Private Ltd. (80 Taxmann.com 272). Similar is the view of Hon’ble Court in Pr. CIT V/s Veedhata Tower Private Ltd. (403 ITR 415) wherein it was held that prior to AY 2013-14, it was not obligatory for assessee to explain the source of the source of a credit appearing in its books of accounts. Similar is the decision of Hon’ble Court in Pr. CIT V/s M/s S.D.B. States Pvt. Ltd. (ITA No.1356 of 2105 dated 27.03.2018) as well as in CIT V/s Paradise Inland Shipping Pvt. Ltd. (ITA No.66 of 2016). Therefore, quite clearly, the assessee has discharged the onus of proving the source of the investment. 12 7. So far as the fulfilment of other ingredients of Sec.68 are concerned, we find that during the course of assessment proceedings, the assessee has produced following documentary evidences in support of the transactions: - i) Copy of PAN of investor ii) Copy of duly signed Share Application forms filed by the alleged Investor with the appellant company while applying the shares. iii) Financial Statements & ITR Acknowledgement of the alleged investor company, iv) Copy of relevant extract of Bank Statement of the alleged investor company and of the appellant company reflecting the said transactions, v) Copy of confirmation of investor vi) Copy of the Return of Allotment (Form 2) filed with the Registrar of Companies vii) Copy of Form no. 5 filed with ROC viii)Board Resolution passed by the alleged investor company for investment in shares of the appellant company, ix) Copy of boards' resolution of the appellant company dated 30.10.2008 for issuing shares at premium and allotment of shares to the alleged investor company. x) Copy of share certificate issued to the investor company. Thus, the assessee had placed on record share application forms, board resolutions of the appellant & investor company, ITR & financials of the investor company, PAN Card of the investor company, confirmation of the investor company, statutory forms filed before ROC, Share certificate etc. during assessment proceedings before Ld. AO. No discrepancies have been noted in the same by Ld. AO. 8. Therefore, on the given facts and circumstances, it could be said that the assessee had discharged the primary onus as required u/s 68 to prove the identity of the share applicant, their creditworthiness and genuineness of the transactions and the onus was on Ld. AO to bring contrary evidences on record. However, except for field visit to investor’s premises, no material investigation is shown to have been carried out by Ld. AO. In fact, a contrary finding has been rendered that EAAPL had received Share Application money of Rs.403.35 Lacs and invested the 13 same in the assessee company. Thus the source of investment in assessee-company has been well established. 9. So far as the issue of quantum of share-premium is concerned, we find that the assessee has followed due procedure for allotment of shares. It was the prerogative of Board of Directors to decide the premium amount and it would be the wisdom of the share-holders whether they want to subscribe to shares at a premium. This position stood settled by Hon'ble Bombay High Court in the case of Green Infra Ltd v. ITO [2017] 78 taxmann.com 340 (Bombay). Similar is the view in PCIT v. Chain House International (P.) Ltd. [2019] 103 Taxmann.com 435 (SC) wherein Special leave Petition (SLP) filed by the revenue in similar context has been dismissed by the Hon'ble Apex Court. The case law of Hon’ble Apex Court in Pr.CIT V/s NRA Iron & Steel Pvt. Ltd. and other decision has already been held to be not applicable by Ld. CIT(A) and we concur with the same since the material facts are different in all those cases. 10. Finally, on the given facts and circumstances, we find no reason to interfere in the impugned order. By confirming the impugned order, we dismiss the appeal. 11. The revenue’s appeal stands dismissed. Order pronounced on 18/02/2022. Sd/- Sd/- (Mahavir Singh) (Manoj Kumar Aggarwal) उपाध्यक्ष / Vice President लेखा दस्य / Accountant Member सदनािंक Dated : 18/02/22 Sr.PS, Dhananjay 14 आदेशकीप्रधिधलधपअग्रेधर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT– concerned 5. सवभागीयप्रसतसनसध, आयकरअपीलीयअसधकरण, मुिंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशाि सार/ BY ORDER, उप/सहायक पुंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअधिकरण, मुिंबई / ITAT, Mumbai.