INCOME TAX OFFICER-9(1)(3), MUMBAI V. M/S.ANJALI MILLENIUM TOURS AND TRAVELS PRIVATE LIMITED , MUMBAI

ITA 5241/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4862 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 11-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Valuation report; Onus to prove
• Section: 133(6); 195; 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER, ITA NO.5241/MUM/2017 ASSESSMENT YEAR: 2012-13 ITO - 19 (1)(3), ROOM NO.260A, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 / VS. M/S ANJALI MILLENIUM TOURS TRAVELS PVT. LTD. B-611, EXPRESS ZONE, WESTERN EXPRESS HIGHWAY, GOREGAON (E), MUMBAI-400063 ( / REVENUE) ( !'# /ASSESSEE) P.A. NO.AAICA3311R $ %# / DATE OF HEARING : 15/01/2019 %# / DATE OF ORDER: 08/02/2019 / O R D E R PER G. MANJUNATHA (ACCOUNTANT MEMBER) THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LD. CIT(APPEAL)- 16, MUMBAI, DATED 30/05/2017 AND IT PERTAINS TO AY 2012/13. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- !' / REVENUE BY SHRI SATISHCHANDRA RAJORE !'# !' / ASSESSEE BY SHRI AJAY R. SINGH & SHRI RAVINDRA POOJARY 2 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE A DDITION MADE OF RS.1,50,00,000/- U/S 68 OF THE ACT, WITHOUT APPR ECIATING THE FACT THAT THE ASSESSEE IS DURING THE COURSE OF ASSE SSMENT PROCEEDINGS FAILED TO PRODUCE SHARE HOLDERS FROM WH OM SHARE PREMIUM WAS RECEIVED. 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN HOLDING THAT ID ENTITY, CREDITWORTHINESS AND GENUINENESS OF THE INVESTOR CO MPANIES STAND PROVED ONLY ON THE BASIS OF DOCUMENTARY EVIDE NCE PRODUCED. 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELEING THE AD DITION WITHOUT APPRECIATING THE TRUE NATURE OF ARRANGEMENTS & IGNO RING THE DECISION OF HON'B!E SUPREME COURT IN THE CASE OF CI T VS P. MOHANKALA (2007) 291 LTR 278.' 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY IS ENGAGED IN THE BUSINESS OF TOURS AND TRAVELS, FILED ITS RETURN OF INCOME FOR AY 2012-13 ON 08-12-2012 DECLARING LOSS OF RS.38,44 5. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 14 2(1) OF THE ACT, WERE ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME T O TIME AND FURNISHED VARIOUS DETAILS, AS CALLED FOR. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, AO NOTICED THAT ASSESSEE HAS ISSUED FR ESH SHARE CAPITAL AMOUNTING TO RS,1.5 CRORES WITH A HUGE PREMIUM OF R S.990 PER SHARE FOR SHARES HAVING FACE VALUE OF RS.10 EACH. THEREFORE, IN ORDER TO ASCERTAIN THE CORRECTNESS AND GENUINENESS OF SHARE CAPITAL, C ALLED UPON THE ASSESSEE TO FILE COMPLETE DETAILS OF SUBSCRIBERS TO THE SHARE CAPITAL ALONG WITH CONFIRMATION LETTERS, ETC. IN RESPONSE TO NOTI CE, THE ASSESSEE, VIDE ITS 3 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. LETTER DATED 11-02-2015 AND 27-02-2015 SUBMITTED CE RTAIN DETAILS INCLUDING COPY OF BANK STATEMENT, COPY OF ITR ACKNOWLEDGEMENT ALONGWITH FINANCIAL STATEMENTS, COPY OF ANNUAL RETURN AND OTHER DETAILS . IN ORDER TO VERIFY CORRECTNESS OF CLAIM, THE AO ISSUED NOTICE U/S 133( 6) TO 5 PARTIES FROM WHOM THE ASSESSEE STATED TO HAVE RECEIVED SHARE CAP ITAL AND ASKED THEM TO FILE CERTAIN EVIDENCES. IN RESPONSE, ALL 5 PARTI ES REPLIED TO NOTICES ISSUED U/S 133(6) AND FILED VARIOUS DETAILS AS CALLED FOR BY THE AO. THE ASSESSEE ALSO FILED A VALUATION REPORT JUSTIFYING CHARGING P REMIUM OF RS.990 PER SHARE WITH NECESSARY EXPLANATIONS AND HOW SUCH VALU ATION HAS BEEN ARRIVED AT, CONSIDERING THE NATURE AND TYPE OF BUSI NESS CARRIED OUT BY THE ASSESSEE. 3. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS O F THE ASSESSEE AND ALSO BY OBSERVING THAT ALTHOUGH THE ASSESSEE HAS FI LED COMPLETE DETAILS OF SUBSCRIBERS ALONGWITH THEIR FINANCIAL STATEMENTS, B UT FAILED TO PROVIDE ANY JUSTIFICATION FOR CHARGING HUGE PREMIUM WITH RELEVA NT INDUSTRY EXPERIENCE OR ANY TRACK RECORD TOWARDS MANAGING SUCCESSFUL BUSINE SS. ALTHOUGH/ THE ASSESSEE HAS FILED A VALUATION REPORT, BUT SUCH VALUATION IS BASED ON ASSESSEE'S OWN CALCULATIONS AND PROJECTS WHICH IS NEITHER DECIDED NOR PROVED WITH CORRESPONDING PREVIOUS TRACK RECORD. TH EREFORE, HE OPINED THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS O F TRANSACTIONS IN THE BACKDROP OF CHARGING SUCH A HUGE PREMIUM ON SHARES, ACCORDINGLY CAME TO 4 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. THE CONCLUSION THAT THE SHARE CAPITAL RECEIVED FROM 5 PARTIES HAS NOT PASSED THE TEST OF GENUINITY AND ACCORDINGLY BY FOL LOWING CERTAIN JUDICIAL PRECEDENTS INCLUDING THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF CIT VS P MOHANAKALA 298 ITR 289 (SC) AND THE DECISI ON OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF MAJOR METALS LTD V S UOI (2013) 359 ITR 450 HELD THAT SHARE CAPITAL RECEIVED FROM 5 SUBSCRI BERS AMOUNTING TO RS.1.50 CRORES IS NOT GENUINE AND IT REPRESENTS INC OME OF THE ASSESSEE FROM UNDISCLOSED SOURCES AND ACCORDINGLY HE MADE AD DITION OF RS.1.5 CRORES U/S 68 OF THE I.T. ACT, 1961. 4. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), ASSESSEE HAS FILED ELABORATE WRITTEN SUBMISSIONS ON THE ISSUE AND ALSO REFERRED EVIDENCE S FILED IN RESPECT OF 5 SUBSCRIBERS BEFORE THE AO WHICH HAS BEEN REPRODUCED AT PARAS 2 TO 10 OF CIT(A)'S ORDER. THE ASSESSEE ALSO RELIED UPON PLETH ORA OF JUDICIAL PRONOUNCEMENTS INCLUDING DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF CIT VS LOVELY EXPORTS PVT LTD (2008) 216 CTR 195 (SC). THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSES SEE AND ALSO ON ANALYSIS OF VARIOUS DETAILS FILED BY THE ASSESSEE I N RESPECT OF 5 SUBSCRIBERS HELD THAT THE ASSESSEE HAS SATISFACTORILY PROVED ID ENTITY OF THE INVESTOR, GENUINENESS OF TRANSACTION ALONGWITH CREDITWORTHINE SS OF THE SHAREHOLDERS. FURTHER, SHARE APPLICATION MONEY PAID BY THEM WAS D ULY REFLECTED IN THE 5 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. BANK ACCOUNT OF THE ASSESSEE. THE CIT(A) FURTHER HE LD THAT EVEN THOUGH THE AO HAS QUESTIONED CHARGING SHARE PREMIUM ON THE SHARES, BUT FACT REMAINS THAT BEFORE AMENDMENT OF SECTION 56(2)(VII) (B) OF THE ACT, BY THE FINANCE ACT WEF 01-04-2013, THE PROVISIONS OF RULE 11U AND 11UA WERE NOT APPLICABLE FOR THE IMPUGNED ASSESSMENT YEAR AND HENCE, THE AO HAS TO EXAMINE ONLY THE IDENTITY, CREDITWORTHINESS AND GEN UINENESS OF TRANSACTION. SINCE THE AO HAS NOT DOUBTED THE IDENTITY OF THE SU BSCRIBERS AND THEIR CAPACITY, MERELY FOR THE REASON OF CHARGING HIGHER PREMIUM, GENUINENESS OF TRANSACTION CANNOT BE QUESTIONED. THEREFORE, HE CAME TO THE CONCLUSION THAT THE ADDITION MADE BY THE AO TOWARDS SHARE CAPI TAL RECEIVED FROM 5 SUBSCRIBERS CORRECT. THE RELEVANT OBSERVATIONS OF T HE LD.CIT(A) ARE AS UNDER:- 5.6 NOW LET'S DISCUSS THE IDENTITY, CREDIBILITY AND GEN UINENESS OF TRANSACTIONS IN RESPECT TO INDIVIDUAL SHAREHOLDERS: IN THE CASE OF PASHUPATI ENCLAVE PVT. LTD. - RS.10, 00,0001-, THE FINANCIAL STATEMENT OF THE-SAID COMPANY AS ON 31.03 .2011 REVEALS THE FOLLOWING: I. EQUITY CAPITAL OF RS.37,36,000/- WITH HIGH RESERVES AND SURPLUS OF RS.8,73,33,683/ - II. THUS THE NET WORTH OF THE COMPANY WAS RS.9,10,69,68 3/- III. THE COMPANY HAS INVESTMENT OF RS.7,50,10,000/- IV. THE COMPANY HAS EXTENDED LOANS & ADVANCES OF RS.1,1 9,00,000/- V. THE ABOVE MENTIONED DETAILS PROVE THE CREDIBILITY O F THE COMPANY AND CAPACITY TO MAKE INVESTMENT IN THE APPELLANT'S COMP ANY. VI. IDENTITY WAS PROVED BY SUBMITTING PAN. ALSO NOTICE U/S.133(6) WERE DULY SERVED. VII. THE BANK ACCOUNT OF THE COMPANY REFLECTS THE PAYMEN TS MADE TO THE APPELLANT COMPANY FOR INVESTING IN SHARES. THERE IS NO ENTRY IN THE BANK ACCOUNTS WHICH REFLECTS THAT THE APPELLANT COMPANY HAS PAID BACK THE 6 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. AMOUNT OF INVESTMENT. VIII. THE COMPANY IN ITS RESPONSE TO NOTICE U/S.133(6) HA S CONFIRMED OF HAVING APPLIED FOR THE SHARES AT PREMIUM. IX. HENCE ADDITION MADE IN THE ASSESSMENT IS NOT CORREC T. II. IN THE CASE OF PUSHPANJALI TRADING PVT. LTD.-RS.25, 00,000/-, THE FINANCIAL STATEMENT OF THE SAID COMPANY AS ON 31.03.2011 REVE ALS AS FOLLOWING. I. EQUITY CAPITAL OF RS.20,77,500/- WITH HIGH RESERVES AND SURPLUS OF RS.7,71,18,698/- II. THUS THE NET WORTH OF THE COMPANY WAS RS.7,91,96,19 8/- III. THE COMPANY HAS MADE INVESTMENT OF RS.7,74,00,000/- IV. THE ABOVE MENTIONED DETAILS PROVE THE CREDIBILITY OF THE COMPANY AND CAPACITY TO MAKE INVESTMENT IN THE APPELLANT'S COMPANY. V. IDENTITY WAS PROVED BY SUBMITTING PAN. ALSO NOTICE U/S.133(6) WERE DULY SERVED. VI. THE BANK ACCOUNT OF THE COMPANY REFLECTS THE PAYMEN TS MADE TO THE APPELLANT COMPANY FOR INVESTING IN SHAR ES. THERE IS NO ENTRY IN THE BANK ACCOUNTS WHICH REFLECTS THAT THE A PPELLANT COMPANY HAS PAID BACK THE AMOUNT OF INVESTMENT. VII. THE COMPANY IN ITS RESPONSE TO NOTICE U/S.133(6) HAS CONFIRMED OF HAVING APPLIED FOR THE SHARES AT PREMIUM. VIII. HENCE ADDITION MADE IN THE ASSESSMENT IS NOT CORRECT. III. IN THE CASE OF SATVICHAR DEALERS PVT. LTD. - RS.25,00,000/-, THE FINANCIAL STATEMENT OF THE SAID COMPANY AS ON 31.03.2011 REVEALS THE FOL LOWING: I. EQUITY CAPITAL OF RS.7,05,250/- WITH HIGH RESERVES AND SURPLUS OF RS.5,99,51,207/- II. THUS THE NET WORTH OF THE COMPANY WAS RS.6,06,56,45 7/- III. THE COMPANY HAS MADE INVESTMENT OF RS.30,86,25,000/ - IV. THE ABOVE MENTIONED DETAILS PROVE THE CREDIBILITY O F THE COMPANY AND CAPACITY TO MAKE INVESTMENT IN THE APPELLANT'S COMPANY. V. IDENTITY WAS PROVED BY SUBMITTING PAN. ALSO NOTICE U /S.133(6) WERE DULY SERVED. VI. THE BANK ACCOUNT OF THE . COMPANY REFLECTS THE PAYMENTS MADE TO THE APPELLANT COMPANY FOR INVESTING IN SHARES. THERE IS NO ENTRY IN THE BANK ACCOUNTS WHICH REFLECTS THAT THE APPELLANT COMPANY H AS PAID BACK THE AMOUNT OF INVESTMENT. VII. THE COMPANY IN ITS RESPONSE TO NOTICE U/S.133(6) HA S CONFIRMED OF HAVING APPLIED FOR THE SHARES AT PREMIUM. VIII. HENCE ADDITION MADE IN THE ASSESSMENT IS NOT CORRECT. IV. IN THE CASE OF SEVA INFRASTRUCTURE PVT. LTD.-RS.50 ,00,000/-, THE FINANCIAL STATEMENT OF THE SAID COMPANY AS ON 31.03 .2011 REVEALS THE FOLLOWING: I. EQUITY CAPITAL OF RS.5,85,000/- WITH HIGH RESERVES AND SURPLUS OF RS.4,80,00,170/- 7 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. II. THUS THE NET WORTH OF THE COMPANY WAS RS.4,85,85,17 0/- III. THE COMPANY HAS MADE INVESTMENT OF RS.4,63,00,000/- IV. THE ABOVE MENTIONED DETAILS PROVE THE CREDIBILITY OF THE COMPANY AND CAPACITY TO MAKE INVESTMENT IN THE APPELLANT'S COMPANY. V. IDENTITY WAS PROVED BY SUBMITTING PAN. ALSO NOTICE U/S.133(6) WERE DULY SERVED. VI. THE BANK ACCOUNT OF THE COMPANY REFLECTS THE PAYMEN TS MADE TO THE APPELLANT COMPANY FOR INVESTING IN SHARES. THERE IS NO ENTRY IN THE B ANK ACCOUNTS WHICH REFLECTS THAT THE APPELLANT COMPANY HAS PAID BACK THE AMOUNT OF INVES TMENT. VII. THE COMPANY IN ITS RESPONSE TO NOTICE U/S.133(6) HA S CONFIRMED OF HAVING APPLIED FOR THE SHARES AT PREMIUM. VIII. HENCE ADDITION MADE IN THE ASSESSMENT IS NOT CORREC T. V IN THE CASE OF FOUNDERS PROPERTIES PVT. LTD. RS.40 ,00,000/-, THE FINANCIAL STATEMENT OF THE SAID COMPANY AS ON 31.03.2011 REVEALS THE FOLLO WING: I. EQUITY CAPITAL OF RS.3,58,000/- WITH HIGH RESERV ES AND SURPLUS OF RS.2,55,42,000/ - II. THUS THE NET WORTH OF THE COMPANY WAS RS.2,59,0 0,000/- III. THE COMPANY HAS MADE INVESTMENT OF RS.2,57,00, 000/- IV. THE ABOVE MENTIONED DETAILS PROVE THE CREDIBILI TY OF THE COMPANY AND CAPACITY TO MAKE INVESTMENT IN THE APPELLANT'S COMPANY. V. IDENTITY WAS PROVED BY SUBMITTING PAN. ALSO NOTI CE U/S.133(6) WERE DULY SERVED. VI. THE BANK ACCOUNT OF THE COMPANY REFLECTS THE PA YMENTS MADE TO THE APPELLANT COMPANY FOR INVESTING IN SHARES. THERE IS NO ENTRY IN THE HANK ACCOUNTS WHICH REFLECTS THAT THE APPELLANT COMPANY HAS PAID BACK THE AMOUNT OF INVESTMENT. VII. THE COMPANY IN ITS RESPONSE TO NOTICE U/S.133( 6) HAS CONFIRMED OF HAVING APPLIED FOR THE SHARES AT PREMIUM. VIII. HENCE ADDITION MADE IN THE ASSESSMENT IS NOT CORRECT. 5.7 LETTERS WERE ISSUED TO THE A.OS. OF PUSPANJALI TRADING PVT. LTD. AND SATVICHAR DEALERS PVT. LTD., THE INVESTEE COMPANIES. THE RESPECTIVE A .O.S HAS ALSO CONFIRMED THE FILING OF RETURNS AND FINANCIALS OF THE SHAREHOLDERS AND NO A DVERSE REMARK WERE MADE. 5.8 THE ISSUE REGARDING ADDITIONS U/S.68 ON SHARE A PPLICATION MONEY HAS BEEN CONSIDERED BY VARIOUS HON'BLE COURTS. BESIDES THE CASES QUOTED BY THE APPELLANT FOLLOWING ARE SOME OF THE RELEVANT FINDINGS OF COURTS WHICH ARE ALSO CONS IDERED AS UNDER:- 1 CIT VS GANGESHWARI METAL P LTD 361 ITR 10 (DELHI) (I) THE HON'BLE HIGH COURT OF DELHI HAS HELD THAT THE G ENUINENESS OF THE TRANSACTIONS IS ESTABLISHED AS THE TRANSACTIONS ARE ROUTED THROUGH BANKING CHANNELS IT WAS SEEN THAT THE SHARE APPLICATION MONEY WAS RECEIVED THROUGH A/C PA YEE CHEQUES, DETAIL OF WHICH HAD BEEN FILED BY THE ASSESSEE BY FILING THE COPY OF TH E BANK A/C OF THE SHARE APPLICANTS. THUS WHERE THE RETURN OF INCOME WAS FILED BY THE CREDITO RS OF THE ASSESSEE AND WAS ACCEPTED BY THE AG AND PAYMENTS WERE THROUGH A/C PAYEE CHEQUES THE GENUINENESS OF THE TRANSACTION CANNOT BE DOUBTED. THE REVENUE COULD NOT PROVE THAT THE MONEY RECEIVED BY THE APPELLANT IN THE FORM OF SHARE APPLICATION HAS COME FROM ITS OWN SOURCES. NO EVIDENCES REGARDING THIS HAVE BEEN BROUGHT ON RECORD BY THE A 0. (II) IN CIT VS. DIVINE LEASING & FINANCE LTD. 299 JTR 26 8 THE HON'BLE DELHI HIGH COURT HELD THAT BURDEN OF PROOF CAN SELDOM BE DISCHARGED TO THE HILT BY THE ASSESSEE. IF THE AG. HARBOURS DOUBTS OF THE LEGITIMACY OF ANY SUBSCRIPTI ON HE IS EMPOWERED, RATHER DUTY BOUND, TO CARRY OUT THOROUGH INVESTIGATIONS. BUT ([ THE A. 0. FAILS TO UNEARTH ANY WRONG OR ILLEGAL DEALINGS, HE CAN/LOT OBDURATELY ADHERE TO H IS SUSPICIONS AND TREAT THE SUBSCRIBED CAPITAL AS THE UNDISCLOSED INCOME OF THE COMPANY. I F RELEVANT DETAILS OF ADDRESS AND 8 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. IDENTITY OF THE SUBSCRIBERS ARE FURNISHED TO THE DE PARTMENT ALONGWITH COPIES OF THE SHAREHOLDERS REGISTER, SHARE APPLICATION FORMS, SHA RE TRANSFER REGISTER ETC. IT WOULD CONSTITUTE ACCEPTABLE PROOF OR EXPLANATION BY THE A SSESSEE. (III) IN HINDUSTAN INKS & RESINS LTD. VS. DY. C.LT. 60 DT R 0018 (2011) THE HON'BLE GUJARAT HIGH COURT HAS HELD AS UNDER: 'FROM THE CONCURRENT FINDINGS RECORDED BY THE AUTHO RITIES BELOW, IT IS APPARENT THAT NONE OF THE PARTIES HAVE RECORDED ANY FINDINGS TO THE EF FECT THAT THE IDENTITY OF THE DEPOSITORS HAD NOT BEEN ESTABLISHED BY THE ASSESSEE. THE CASE OF THE RESPONDENT IS THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF SUCH COSH AS WE LL AS CREDITWORTHINESS OF THE DEPOSITS. IT IS NOT THE CASE OF THE REVENUE THAT THE SUBSCRIBERS ARE BOGUS./ THE CASE OF THE REVENUE IS THAT THE SOURCE. OF SUCH CASH AS WELL AS CREDITWORT HINESS OF THE DEPOSITORS HAS NOT BEEN EXPLAINED. IN THE CIRCUMSTANCES, THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THE INDIVIDUAL ASSESSMENTS OF THE DEPOSITS NAMED BY THE ASSESSEE, HOWEVER, UNDER NO CIRCUMSTANCES, CAN THE AMOUNT OF SHARE CAPITAL BE REGARDED AS THE UNDI SCLOSED INCOME OF THE ASSESSEE.' IV. IN CIT VS. K.C. FIBRES LTD. IN IT APPEAL NO. 70 1 OF 2009 THE HONBLE DELHI HIGH COURT HELD THAT IN SO FAR AS ASSESSING COMPANY IS C ONCERNED, IT IS NOT DISPUTED THAT MONEY WAS PAID TO IT TOWARDS THE AFORESAID SHARE APPLICAT ION MONEY, BY MEANS OF CHEQUES. IT IS NOT FOR THE ASSESSING COMPANY TO PROBE AS TO THE SO URCE FROM WHERE DP COLLECTED THE AFORESAID MONEY. IT WAS FOR THE AO, IN THESE CIRCUM STANCES TO INQUIRE INTO THE AFFAIRS OF DP WHICH IS AN INDEPENDENT COMPANY IN AS MUCH AS NO FINDING IS ARRIVED AT BY THE AO THAT THE TWO COMPANIES ARE UMBRELLA COMPANIES OR HA VE ANY RELATIONSHIP WITH EACH OTHER. V. IN CIT VS. STI- EXTRUSION (P) LTD. 333 ITR 269 THE HONBLE MADHYA PRADESH HIGH COURT HELD THAT THAT THOUGH IT IS THE DUTY OF THE A SSESSEE TO ESTABLISH THE GENUINENESS OF THE CREDITS BUT IN THE PRESENT CASE THE ASSESSEE HAS DU LY ESTABLISHED THE IDENTITY AND SOURCE OF CREDITS. THE TRIBUNAL HAS ALSO HELD THAT ONCE THE I DENTITY AND SOURCE OF THE SUBSCRIBERS OF THE SHARES IS ESTABLISHED NO ADDITION CAN HE MADE U /S 68. THE ASSESSEE HAVING DULY FURNISHED THE NAME, AGE, ADDRESS, DATE OF FILING TI RE APPLICATION OF SHARES, NUMBER OF SHARES OF EACH SUBSCRIBER WAS NO JUSTIFICATION FOR THE AO FOR MAKING THE IMPUGNED ADDITION BECAUSE ONCE THE FATE INVESTORS / SHARE S UBSCRIBERS IS PROVED, ONUS SHIFTS ON THE REVENUE TO ESTABLISH THAT EITHER THE SHARE APPLICAN TS ARE BOGUS OR THE IMPUGNED MONEY BELONGS TO THE ASSESSEE ITSELF AFTER FILING OF THE AFFIDAVITS OF THE SAID SUBSCRIBER THE APPELLANT AT NO STAGE OF THE PROCEEDINGS SOUGHT ANY OPPORTUNITY TO REBUT THE SAID AFFIDAVITS. VI. IN CIT VS. PRAYAG HOSPITAL & RESEARCH IT APPEAL NO.917OF20W THE HON'BLE DELHI HIGH COURT HELD THAT SHAREHOLDERS OF THE ASSESSEE C OMPANY HAVING APPEARED BEFORE THE A0 AND FURNISHED AFFIDAVITS ALONGWITH SUPPORTING DO CUMENTS CONFIRMING THEIR INVESTMENT IN THE ASSESSEE, IDENTITY OF THE CREDITORS IS ESTAB LISHED AND THEREFORE, ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. VII. IN CIT VS. TDI MARKETING (P) LTD. IT APPEAL NO .340 OF 2009 THE HON'BLE DELHI HIGH COURT HELD THAT ASSESSEE COMPANY HAVING FURNISHED C OMPLETE DETAILS OF SHAREHOLDERS NAME, ADDRESSES, PAN AND BANKERS AND THEY HAVING CO NFIRMED THE INVESTMENT AND THE AO HAVING NOT GIVEN HIS SPECIFIC COMMENTS ON HIS ENQUI RIES PERTAINING TO THEM EXCEPT FOR NINE SHAREHOLDERS, ADDITION U/S.68 CANNOT BE SUSTAI NED. VIII. IN CIT VS. GANGOUR INVESTMENT LID. 335 ITR 35 9 (2011) THE HONBLE HIGH COURT OF DELHI HELD THAT ASSESSEE COMPANY HAVING FI LED THE SUBSCRIPTION FORMS OF THE INVESTORS, INCLUDING TT LTD., A GROUP COMPANY, CONT AINING DETAILS AND INFORMATION WITH RESPECT TO THEIR ADDRESSES AS WELL AS PAN, THEREBY ESTABLISHING THEIR IDENTITY AND ALSO SUPPLIED A COPY OF THE STATEMENT OF BANK ACCOUNTS O F TT LTD., IT HAS DISCHARGED ITS ONUS IN 9 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. RESPECT OF THE VERACITY OF THE TRANSACTION AND THER EFORE, THE ADDITION U/S.68 MADE BY THE AO IN RESPECT OF THE IMPUGNED INVESTMENT MADE BY TT LTD, HAS BEEN RIGHTLY DELETED. IX. APPELLANT HAS ALSO PLACED RELIANCE ON RECENT JU DGEMENT OF JURISDICTIONAL BOMBAY HIGH COURT DTD 20.03,2017 IN CASE OF CIT VS; GAGANDEEP I NFRASTRUCTURE PVT LTD WHERE IN THE HON'BLE COURT HAS HELD THAT: 'IN VIEW OF THE MATTER THE THREE ESSENTIAL TESTS WH ILE CONFIRMING THE SECTION 68 LAID DOWN BY !FIT COURT NAMELY THE GENUINENESS OF THE TRANSAC TION, IDENTITY AND THE CAPACITY OF THE INVESTOR HAVE ALL BEEN EXAMINED BY THE IMPUGNED ORD ER OF THE TRIBUNAL AND ON FACT IT WAS FOUND SATISFIED. FURTHER IT WAS A SUBMISSION ON BEH ALF OF THE REVENUE THAT SUCH LARGE AMOUNT OF SHARE PREMIUM GIVES RISE TO SUSPICION ON THE GENUINENESS (IDENTITY) OF THE SHAREHOLDERS, I.E., THEY ARE BOGUS. THE APEX COURT IN A CASE IN THIS CONTEXT TO THE PRE- AMENDED SECTION 68 HAS HELD THAT WHERE THE REVENUE URGES THAT THE AMOUNT OF SHARE APPLICATION MONEY HAS BEEN RECEIVED FROM BOGUS SHAR EHOLDERS THEN IT IS FAR THE INCOME- TAX OFFICER TO PROCEED BY REOPENING THE ASSESSMENT OF SUCH SHAREHOLDER AND ASSESSING THEM TO TAX IN ACCORDANCE WITH LAW. IT DOES NOT ENT ITLE THE REVENUE TO ADD THE SAME TO THE ASSESSEES' INCOME AS UNEXPLAINED CASH CREDIT. [PARA 3]' 5.9 AS REGARDS THE VALUATION OF SHARES, I FIND THAT THE APPELLANT HAS FILED VALUATION REPORT IN SUPPORT OF SAME AND ALSO THE JUDGMENTS CITED AND SUBMISSIONS MADE BY THE APPELLANT VIDE POINT NO.9 OF WRITTEN SUBMISSIONS PROVES ITS P OINT REGARDING THE JUSTIFICATION OF AMOUNT OF SHARE PREMIUM. IN PARA 5.15 OF THE ASSESS MENT ORDER THE LD. A.O. HAS RAISED ISSUE OF HIGH PREMIUM WITHOUT ANY DUE DILIGENCE. TH E PROVISIONS OF S.56(2)(VII)(B) OF THE ACT AND RULES 11U AND 11 VA WERE INSERTED W.E.F 01. 04.2013 I.E. ASSESSMENT YEAR 2013- 14 ONWARDS. THUS FOR THE YEAR UNDER CONSIDERATION T HE LD. A.O. HAS TO EXAMINE ONLY THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTIONS ONLY. 5.10 THE CASES CITED BY THE IA. A.O. DIFFERS FROM T HE FACTS AND CIRCUMSTANCES OF THAT OF THE APPELLANT AS POINTED OUT BY THE APPELLANT VIDE IT'S WRITTEN SUBMISSION REPRODUCED IN PARA 4 OF THIS ORDER. 5.11 IN THE INSTANT EAST.. HAVING REGARD TO THE DOC UMENTS FURNISHED BEFORE ME, AM CONVINCED ABOUT THE IDENTITY OF THE INVESTOR, GENUI NENESS OF TRANSACTION ALONG WITH CREDIT- WORTHINESS OF THE SHAREHOLDERS AND THE SHARE SUBSCR IPTION MONEY PAID BY THEM DULY REFLECTED IN THE HANK ACCOUNT OF THE APPELLANT ASSE SSEE COMPANY. HENCE, THE FACTS DO NOT WARRANT AN ADDITION UNDER SECTION 68 OF THE ACT. FU RTHER, IN THE CONTEXT OF SHARE CAPITAL RECEIVED FROM ALLEGED BOGUS SHAREHOLDERS, THE HONB LE SUPREME COURT HAS 'UNEQUIVOCALLY LAID DOWN THE LEGAL POSITION AS TO WHETHER ADDITION S CAN BE MADE UNDER SECTION 68 OF THE ACT, AS UNDER IN CASE OF LOVELY EXPORTS (P) LTD. 21 6 CFR 195: 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE AS SESSING OFFICER, THEN THE DEPARTMENT IS ,FREE TO PROCEED TO REOPEN THEIR INDI VIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW BUT THIS AMOUNT OF SHARE MONEY CANNOT BE REGARDED AS UNDISCLOSED II7COME UNDER SECTION 68 OF THE ASSESSEE COMPANY.' 5.12 FROM THE DETAILS FILED, THE APPELLANT HAD NOT ONLY PROVED THE GENUINENESS OF TRANSACTION AND IDENTITY OF THE INVESTORS BUT IT HA S ALSO PROVED THE CREDITWORTHINESS OF INVESTORS. IN VIEW OF THESE FACTS AND RESPECTFULLY FOLLOWING VARIOUS JUDGMENTS OF HON'BLE FIAT AND HON'BLE COURTS AS DISCUSSED IN PARA 6.2.9, APPEAL OF THE ASSESSEE IS ALLOWED AND ADDITION OF RS.1,50,00,000/- MADE BY THE AO U/S.68 OF THE ACT IS DELETED. 10 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. 5. THE LD. DR SUBMITTED THAT THE LD.CIT(A) WAS ERRE D IN DELETING ADDITION MADE BY THE AO TOWARDS SHARE CAPITAL RECEIVED FROM 5 SUBSCR IBERS FOR RS.1.50 CRORES U/S 68 OF THE ACT, WITHOUT APPRECIATING THE FACT THAT THE ASSESSE E FAILED TO PRODUCE SHAREHOLDERS BEFORE THE AO, WHEN THE AO HAS ASKED THE ASSESSEE TO PRODU CE THEM PERSONALLY FOR VERIFICATION. THE LD.DR FURTHER SUBMITTED THAT WHEN THE AO HAS BROUGHT OUT CLEAR FACTS TO THE EFFECT THAT THE ASSESSEE HAS NOT JUSTIFIED CHAR GING HIGHER PREMIUM ON ISSUE OF SHARES TO HOLD THAT GENUINENESS OF TRANSACTION CANNOT BE Q UESTIONED MERELY FOR CHARGING HIGHER PREMIUM, IGNORING THE VITAL FACTS THAT THE PARTIES NEVER ATTENDED BEFORE THE AO FOR EXAMINATION. THE LD. DR FURTHER REFERRING TO THE DE CISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS P MOHANAKALA (SUPRA) SUBMITTED THAT MERE PAYMENT OF AMOUNT BY CHEQUE THROUGH BANKING CHANNELS WOULD NOT BE ENOUGH TO PRO VE THE GENUINENESS OF TRANSACTIONS. IN THIS CASE, EXCEPT FURNISHING CERTA IN EVIDENCE TO PROVE IDENTITY AND PAYMENT OF AMOUNT BY CHEQUES, THE ASSESSEE FAILED T O FILE ANY OTHER EVIDENCE TO JUSTIFY CHARGING HIGHER PREMIUM. THEREFORE, THE AO WAS VERY MUCH WITHIN HIS RIGHT TO MAKE ADDITION U/S 68 OF THE ACT, BUT THE LD.CIT(A) HAS N EGATED ALL OBSERVATIONS MADE BY THE AO MERELY FOR THE REASON THAT THE ASSESSEE HAS PROD UCED NECESSARY EVIDENCE IN RESPECT OF 5 SUBSCRIBERS 6. THE LD.AR, ON THE OTHER HAND, STRONGLY SUPPORTIN G THE ORDER OF THE LD.CIT(A) SUBMITTED THAT IT IS A SETTLED POSITION OF LAW THAT ONCE ASSESSEE DISCHARGED ITS INITIAL ONUS UPON FILING CERTAIN EVIDENCE TO PROVE IDENTITY , GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE PARTIES, THEN THE ONUS SHIF TS TO THE AO TO PROVE OTHERWISE. IN THIS 11 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. CASE, THE AO HAS DISREGARDED ALL EVIDENCES FILED BY THE ASSESSEE SO AS TO REACH TO A CONCLUSION THAT THE TRANSACTION BETWEEN THE ASSESSE E AND THE SUBSCRIBERS IS NOT A GENUINE TRANSACTION ONLY FOR THE REASON THAT SHARES HAVE BEEN ISSUED AT A HIGHER PREMIUM WITHOUT APPRECIATING THE FACT THAT ISSUE OF SHARES AT A PREMIUM AND SUBSCRIPTION TO SUCH SHARES IS A DECISION BETWEEN TWO PARTIES AN D THE AO HAS NO ROLE TO PLAY AS LONG AS THE IDENTITY AND GENUINENESS OF TRANSACTION IS P ROVED. THE LD.AR FURTHER SUBMITTED THAT THE AO HAS ONLY QUESTIONED SHARE PREMIUM IGNOR ING THE FACT THAT PROVISO INSERTED TO SECTION 68 OF THE AC, BY THE FINANCE ACT, 2012 WEF 01-04-2013 HAS NO APPLICATION TO THE AMOUNTS RECEIVED PRIOR TO THAT DATE. IN THIS REGARD , HE RELIED UPON A PLETHORA OF JUDGEMENTS INCLUDING THE DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF CIT VS LOVELY EXPORTS PVT LTD (SUPRA). THE ASSESSEE ALSO RELIED U PON THE FOLLOWING JUDGEMENTS:- SR. NO. PARTICULARS PG. NO. 1 PR. CIT V SDB ESTATE PVT LTD, ( I.T.A. NO. 1356 012 013), DATED- 27/03/2018 8 (BOM)) 1 - 3 2 CIT V. GAGANDEEP INFRASTRUCTURE PVT. LTD.(2017) 394 ITR 680(BOM)(HC) 4 - 8 3 CIT VS. LOVELY EXPORTS (P) LTD. REPORTED IN (2008) 216 CTR 195 (SC) 9 - 10 4 PR.CI1' V. PARADISE INLAND SHIPPING P.LTD (2018) 40 0 ITR 439(BOM.)(HC) 11 - 16 5 V.R.GLOBAL ENERGY PVT LTD V. 110. (T.C.A. NO. 246 O F 2017), DATED- 06/ 08/2018 8 (MAD) 17 - 22 6 CIT V. ACQUUTK REMEDIES PVT. LTD. ( 11'. A. NO. 83 OF 2016), DATED- 30/07/ 2018 (BOM) 23 - 28 7 CIT VS ORCHID INDUSTRIES PVT LTD- (2017) 397 ITR 13 6(BOM)(HC) 39 - 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED MATERIAL S AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE AL SO CONSIDERED CASE LAWS CITED BY BOTH THE PARTIES. THE AO HAS MADE ADDITION TOWARDS SHARE CAPITAL RECEIVED FROM 5 COMPANIES, BASICALLY ON THE GROUND THAT ALTHOUGH IDENTITY OF S UBSCRIBERS HAS BEEN PROVED, BUT THE 12 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. TRANSACTION BETWEEN PARTIES DID NOT PASS THE TEST O F GENUINENESS AS THE ASSESSEE HAS NOT JUSTIFIED CHARGING OF HIGHER PREMIUM ON SHARES WITHOUT THERE BEING ANY CORRESPONDING BUSINESS ACTIVITY TO JUSTIFY PROJECTIONS AND ESTIMA TES RELIED UPON FOR ARRIVING AT A SHARE PREMIUM. EXCEPT THIS, THE AO NEVER DOUBTED IDENTITY OF THE PARTIES. THE ASSESSEE HAS FILED COMPLETE DETAILS IN RESPECT OF 5 PARTIES INCL UDING THEIR NAMES AND ADDRESSES, PAN, INCOME-TAX RETURNS, COPIES OF FINANCIAL STATEMENTS, BANK STATEMENTS, LETTER OF ALLOTMENT, ETC. IN FACT ALL 5 PARTIES HAVE REPLIED TO NOTICES ISSUED U/S 133(6) ALONGWITH WHATEVER DETAILS SOUGHT BY THE AO. IN THIS FACTUAL BACKGROUN D, IF WE EXAMINE THE SHARE CAPITAL RECEIVED FROM THE ABOVE 5 COMPANIES AND SUCH AMOUNT FALLS WITHIN THE AMBIT OF SECTION 68 OF THE ACT, ONE UNDOUBTED FACT EMERGES THAT THE AO FAILED TO MAKE OUT A CASE OF CREDIT, WHICH FALLS WITHIN THE AMBIT OF PROVISIONS OF SECTION 68 OF THE ACT, EXCEPT DOUBTING GENUINENESS OF TRANSACTIONS ON SUSPICION AND SURMIS E ONLY FOR THE REASON OF CHARGING HIGHER PREMIUM ON SHARES. THE PROVISIONS OF SECTION 68 DEAL WITH CASES WHERE SUM FOUND CREDITED IN THE BOOKS OF ACCOUNT, THE ASSESSE E NEEDS TO PROVE IDENTITY, GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE PARTIES. ONCE ASSESSEE DISCHARGES ITS INITIAL BURDEN CAST UPON UNDER 68 OF THE ACT BY FILING NECESSARY EVIDENCES, THEN THE BURDEN SHIFTS TO THE AO TO PROVE OTHERWISE . IN ORDER TO FIX A PARTICULAR CREDIT WITHIN THE AMBIT OF SECTION 68 OF THE ACT, THE AO H AS TO BRING ON RECORD FURTHER EVIDENCES TO PROVE THAT THE SUM FOUND CREDITED IN THE BOOKS O F ACCOUNT OF THE ASSESSEE REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE. IN THIS CASE, T HE AO, EXCEPT DOUBTING GENUINENESS OF TRANSACTION FOR CHARGING HIGHER PREMIUM ON SHARE S, DID NOT BRING ON RECORD ANY OTHER 13 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. EVIDENCE TO DISPROVE THE VOLUMINOUS EVIDENCES FILED BY THE ASSESSEE IN RESPECT OF 5 COMPANIES TO PROVE IDENTITY AND GENUINENESS OF TRAN SACTIONS. IN FACT, THE ASSESSEE HAS FILED COMPLETE SET OF DOCUMENTS FOR ALL 5 SUBSCRIBE RS. THE PARTIES HAVE RESPONDED TO NOTICES U/S 133(6) BY FILING NECESSARY EVIDENCES. T HEREFORE, MERELY FOR THE REASON THAT THE PARTIES DID NOT APPEAR BEFORE THE AO OR THE ASS ESSEE COULD NOT PRODUCE THE PARTIES IN PERSON BEFORE THE AO, THE WHOLE SET OF DOCUMENTS PR ODUCED TO PROVE THE IDENTITY AND GENUINENESS OF TRANSACTIONS, CANNOT BE DISREGARDED WHEN THE AO DOES NOT HAVE ANYTHING MORE THAN SUSPICION IN HIS POSSESSION TO D OUBT THE TRANSACTIONS. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE AO WAS ERRED IN BRINGING TO TAX SHARE CAPITAL RECEIVED FROM 5 COMPANIES U/S 68 OF THE INCOME-TAX ACT, 1961 AS UNEXPLAINED CREDIT. 8. COMING TO THE CASE LAWS RELIED UPON BY THE ASSES SEE. THE ASSESSEE HAS RELIED UPON PLETHORA OF JUDGMENTS INCLUDING THE DECISION O F HON'BLE SUPREME COURT IN THE CASE OF CIT VS LOVELY EXPORTS PVT LTD (SUPRA). THE HON'B LE SUPREME COURT IN THE SAID CASE HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVE D BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES WERE GIVEN TO THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSME NTS IN ACCORDANCE WITH LAW, BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSE E COMPANY. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. GAGANDEEP INFRASTR UCTURE PVT. LTD(SUPRA) HAD AN OCCASION TO CONSIDER SIMILAR ISSUE IN THE LIGHT OF BOGUS SHARE CAPITAL AND THE HON'BLE HIGH COURT BY FOLLOWING THE RATIO LAID DOWN BY THE HON'B LE SUPREME COURT IN THE CASE OF CIT VS LOVELY EXPORTS PVT LTD (SUPRA) HELD THAT IF THE THR EE ESSENTIAL TEST LAID DOWN BY THE 14 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. COURTS, VIZ. GENUINENESS OF THE TRANSACTION, IDENTI TY AND THE CAPACITY OF THE INVESTORS OF SHARE CAPITAL ALONGWITH PREMIUM HAVE BEEN PROVED, T HEN THE DEPARTMENT CANNOT TAKE, VIEW THAT THE AMOUNT OF SHARE CAPITAL HAD BEEN RECE IVED FROM BOGUS SHAREHOLDERS. IT WAS FOR THE AO TO PROCEED BY REOPENING THE ASSESSMENT O F SUCH SHAREHOLDERS AND ASSESSING THEM TO TAX. IT DID NOT ENTITLE THE DEPARTMENT TO A DD MONEY RECEIVED TO THE ASSESSEE'S INCOME AS UNEXPLAINED CASH CREDIT. THE HON'BLE HIGH COURT FURTHER OBSERVED THAT PROVISO TO SECTION 68 OF THE INCOME-TAX ACT, 1961 INTRODUCE D BY THE FINANCE ACT, 2012 WEF 01-04- 2013 WAS EFFECTIVE FROM AY 2013-14 ONWARDS AND WHAT EVER AMOUNT RECEIVED PRIOR TO THAT DATE WILL NOT COME WITHIN THE AMBIT OF PROVISIONS O F SECTION 68 OF THE I.T. ACT, 1961. A SERIES OF JUDGEMENT RENDERED BY HON'BLE BOMBAY HIGH COURT HAS CONSIDERED IDENTICAL ISSUE IN THE LIGHT OF DECISION OF HON'BLE SUPREME C OURT AND CAME TO THE CONCLUSION THAT ONCE IDENTITY, GENUINENESS OF TRANSACTIONS AND CRED ITWORTHINESS OF THE PARTIES HAVE BEEN PROVED, THEN SUM SO RECEIVED CANNOT BE REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE BUT THE DEPARTMENT IS FREE TO PROCEED TO R EOPEN THE ASSESSMENT OF INDIVIDUAL SHAREHOLDERS. THE SUM AND SUBSTANCE OF THE RATIO LA ID DOWN BY THE ABOVE JUDGEMENTS ARE THAT IN ORDER TO OVERCOME THE SHADOW OF PROVISI ONS OF SECTION 68 OF THE ACT, THE ASSESSEE NEEDS TO DISCHARGE ITS INITIAL BURDEN BY F ILING NECESSARY DETAILS TO PROVE IDENTITY, GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE PARTIES. THE ASSESSEE ONCE DISCHARGED ITS INITIAL BURDEN, THEN THE AO CANNOT A DD SUM SO FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE MERELY ON SUSPICIO N AND SURMISES OR ON THE BASIS OF CHARGING HIGHER PREMIUM WITHOUT THERE BEING ANY FUR THER EVIDENCE IN HIS POSSESSION TO 15 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. PROVE THAT SUM SO FOUND CREDITED IN THE BOOKS OF AC COUNT REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE. IN THIS CASE, ON PERUSAL OF FACTS, IT IS ABUNDANTLY CLEAR THAT THE ASSESSEE HAS DISCHARGED ITS INITIAL BURDEN BY FILING ENORMOU S DETAILS TO PROVE IDENTITY AND GENUINENESS OF TRANSACTIONS. THE AO, HAVING ACCEPTE D THE FACT THAT IDENTITY HAS BEEN PROVED, COULD NOT HAVE PROCEEDED TO MAKE ADDITION O NLY ON THE BASIS OF CHARGING HIGHER PREMIUM, BECAUSE CHARGING HIGHER PREMIUM ON ISSUE O F SHARES IS A DECISION BETWEEN PARTIES AND THE AO WOULD NOT HAVE ANY ROLE TO PLAY AS LONG AS GENUINENESS OF TRANSACTION IS NOT IN DOUBT. THE LD.CIT(A), AFTER CONSIDERING R ELEVANT FACTS HAS RIGHTLY DELETED ADDITION MADE BY THE AO. WE DO NOT FIND ANY ERROR I N THE FINDINGS OF LD.CIT(A) AND HENCE, WE ARE INCLINED TO UPHOLD THE ORDER OF THE L D.CIT(A) AND DISMISSED THE APPEAL FILED BY THE REVENUE. 9 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/2019. SD/- SD/- ( SANDEEP GOSAIN ) (G. MANJUNATHA) #'$ /JUDICIAL MEMBER %'$ / ACCOUNTANT MEMBER MUMBAI; ) DATED : 08/02/2019 SHEKHAR, PS &#'()*)+' / COPY OF THE ORDER FORWARDED TO : 1. * +, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. && /# ( * ) / THE CIT, MUMBAI. 4. && /# / CIT(A)- , MUMBAI, 5. 12 -#3 , &**3 4 , / DR, 16 ITA NO.5241/MUM/2017 M/S ANJALI MILLENIUM TOURS & TRAVELS. ITAT, MUMBAI 6. 5!6 / GUARD FILE. ' / BY ORDER, /' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI