ITO 6(3)(3), MUMBAI V. J.B. TECHNOLOGIES P.LTD, MUMBAI

ITA 6297/MUM/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2524 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Reasonable cause; Tangible material; Assessment record; Reason to believe; Set aside
• Section: 142(1); 133(6); 143(1); 143(2); 22; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 6297/ MUM/201 6 ( / ASSESSMENT YEAR: 2009 - 10 ) ITO - 6(3)(3) R. NO.576, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 40 0020 . / VS. M/S. J. B. TECHNOLOGIES PVT. LTD. 3, NARAYAN BUILDING, 23, L. N. ROAD, DADAR (E), MUMBAI - 400014. C. O. NO . 68 /M UM /2 018 (ARISING OUT OF I .T.A. NO. 6297/MUM/2016 ) ( / ASSESSMENT YEAR : 2009 - 10 ) M /S. J. B. TECHNOLOGIES PVT. LTD. 3, NARAYAN BUILDING, 23, L. N. ROAD, DADAR (E), MUMBAI - 400014 . / VS. ITO - 6(3)(3) R. NO.576, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400020 . ./ ./ PAN/GIR NO. : AABCJ5208P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 17 / 0 2 / 20 21 / DATE OF PRONOUNCEMENT : 05/04 / 2021 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE AS WELL AS THE ASSESSEE HAVE FILED THE ABOVE MENTIONED APPEAL AND CROSS - OBJECTION AGAINST THE ORDER DATED 22 . 0 8 .201 6 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 12 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y . 20 09 - 10 . ITA. NO. 6297 /MUM/201 6 REVENUE BY : MS. USHA GAIKWAD (DR) ASSESSEE BY: SHRI VIJAY MEHTA (AR) ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 2 2. THE REVENUE HAS FILED THE PRESENT AGAINST THE ORDER DATED 22 .0 8 .201 6 PASSED BY THE CIT(A) - 12 , MUMBAI RELEVANT TO THE A.Y. 2009 - 10 . 3 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ' 1. 'ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT ASSESSEE COMPANY HAD RECEIVED A SUM OF RS.4,95, 00,000/ - (INCLUDING PREMIUM OF RS. 4,86,00,000/ - ) ON ACCOUNT OF SHARE APPLICATION MONEY/SHARE CAPITAL AND SHARE PREMIUM DUR ING THE FY 2008 - 09 RELEVANT TO A.Y2009 - 10 AND AS THERE WAS NO ASSESSMENT DONE FOR THIS PERIOD EARLIER, THE A.O. FOR THE REASONS STATED - IN PARA 4.4 OF THE ORDER HAD REASONABLE CAUSE TO BELIEVE THAT THE SUM SO INTRODUCED BY WAY OF CREDIT IN THE BOOKS OF ACC OUNTS OF THE ASSESSEE WAS NOT EXPLAINED AND HENCE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AND HE CONSIDERED IT FIT TO REOPEN THE ASSESSMENT U/S 147 OF THE I.T. ACT.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) H AS ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE THAT THERE WAS NO TANGIBLE MATERIAL WITH THE A.O. WHICH IS ESSENTIAL REQUIREMENT FOR REOPENING AND THUS, HAS FAILED TO APPRECIATE THAT THE A. 0. HAD NO OCCASION TO EXAMINE THE TRANSACTION RELATED TO SHARE APPL ICATION/CAPITAL/PREMIUM MONEY OF RS. 4,95,00,000/ - HENCE, EARLIER, NO OPINION HAD BEEN FORMED ON THIS ISSUE AND THE BASIC PRESUMPTION THAT THE DATA FURNISHED BY THE ASSESSEE BEING ARBITRARY AND BEREFT OF ANY MERIT GIVES RISE TO SUFFICIENT GROUND TO BELIEVE THAT INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT.' 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(APPEALS) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE A0 BE RESTORED. ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 3 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR TO SUBMIT ADDIT IONAL NEW GROUND, WHICH MAY BE NECESSARY. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 .09.20 09 DECLARING TOTAL INCOME TO THE TU NE OF RS. NIL. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, THE CASE OF THE ASSESSEE WAS REOPENED ON THE FOLLOWING GROUNDS: - FROM THE RECORD, IT IS SEEN THAT THE ASSESSEE IS IN RECEIPT OF HUGE SHARE PREMIUM AMOUNTING TO RS.3,75,54,840/ - DURING THE FY 2008 - 09 RELEVANT TO AY 2009 - 10. AS THERE WAS NO SCRUTINY ASSESSMENT DON E FOR THIS YEAR, THE SO - CALLED SHARE PREM I UM HAVING BEEN RECEIVED BY THE ASSESSEE WAS NOT EXAMINED. THE ASSESSEE IS AN UNLISTED COMPANY AND THE NATURE OF THE SHARE APPLICATION RECEIVED (THE INTRINSIC VALUE OF THE SHARE IN COMPARISON TO THE EXCESS PREMIUM R ECEIVED) IS NOT SUBSTANTIATED. 5. THEREAFTER, NOTICE U/S 148 OF THE ACT WAS GIVEN. NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF PROPERTY DEVELOPERS AND DURING THE YEAR IT HAS SHOWN NET LOSS OF RS.28,977/ - . ON PERUSAL OF THE DETAILS FURNISHED BY THE ASSESSEE, IT WAS NOTICED THAT THE ASSESSEE COMPANY INTRODUCED A SUM OF RS.4,86,00,000/ - AND NOT RS.3,75,54,840/ - AS REPORTED IN REASONS FOR REOPENING ON ACCOUNT OF SHARE APPL ICATION MONEY/SHARE CAPITAL AND SHARE PREMIUM PURPORTEDLY RECEIVED ON ISSUE OF 90,000 SHARE AT A PREMIUM OF RS,540 PER SHARE FROM THE FOLLOWING COMPANIES.: - S. NO. NAME OF THE COMPANIES NO. OF SHARES SHARE CAPITAL SHARE PREMIUM TOTAL 1 M/S. KARAD CHEMICAL S & ALLIED PRODUCTS PVT. LTD. 11,364 1,13,640 61,36,560 62,50,200 ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 4 2 M/S. MANMAYA DEVELOPERS PVT. LTD. 7,818 78,180 42,21,720 42,99,900 3 M/S. NISHA CAPITAL SERVICES PVT. LTD. 67,182 6,71,820 3,62,78,280 3,69,50,100 4 M/S. SURAKSHA DEVELOPERS LTD. 3,636 36,360 19,63,440 19,99,800 TOTAL 90,000 9,00,000 4,86,00,000 4,95,00,000 6. THEREAFTER, NOTICE WAS GIVEN AND AFTER THE REPLY OF THE ASSESSE, THE NOTICE U/S 133(6) WAS ALSO ISSUED BUT FIND NO SATISFACTORY REPLY , THE AO RAISED THE ADDITION TO THE TUNE OF RS.4,95,00,000/ - AS UNEXPLAINED CREDIT ON ACCOUNT OF SHARE PREMIUM. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.4,95,00,000/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DELETED THE ADDITION, THEREFORE, THE R EVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 7. WE HAVE THE ARGUMENTS ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 OF THE ACT ON ACCOUNT OF FOLLOWING REASONS.: - FROM THE RECORD, IT IS SEEN THAT THE ASSESSEE IS IN RECEIPT OF HUGE SHARE PREMIUM AMOUNTING TO RS.3,75,54,840/ - DURING THE FY 2008 - 09 RELEVANT TO AY 2009 - 10. AS THERE WAS NO SCRUTINY ASSESSMENT DONE FOR THIS YEAR, THE SO - CALLED SHARE PREMIUM HAVING BEEN RECEIVED BY THE ASS ESSEE WAS NOT EXAMINED. THE ASSESSEE IS AN UNLISTED COMPANY AND THE NATURE OF THE SHARE APPLICATION RECEIVED (THE INTRINSIC VALUE OF THE SHARE IN COMPARISON TO THE EXCESS PREMIUM RECEIVED) IS NOT SUBSTANTIATED. BEFORE GOING FURTHER, WE DEEM IT NECESSARY T O ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 5 6.2 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND THE SUBMISSION OF THE APPELLANT. THE APPELLANT IS CONTESTING THE REOPENING U/S 147 ON THE GROUND THAT THE ASSESSMENT WAS REOPENED ON THE PRETEXT OF PROPER EXAMINATION AND CASE CANNOT BE REOPENED FOR EXAMINATION OF THE FACTS. THE APPELLANT FORCEFULLY_ ARGUED THAT THE ASSESSMENT WAS REOPENED TO EXAMINE THE GENUINENESS AND NATURE OF TRANSACTION ONLY. THERE WAS NO INFORMATION AVAILABLE WITH THE A.0 ABOUT NON - GE NUINENESS OF THOSE HANDS OR GENUINENESS OF THE ASSESSEES WHO HAVE SUBSCRIBED - TO - THE SHARE CAPITAL. THE APPELLANT FURTHER STATED THAT THE SHARES ARE SUBSCRIBED BY HOLDING COMPANY AND ASSOCIATE COMPANIES WHOSE IDENTITIES CANNOT BE DOUBTED AND WITHIN SUCH GR OUP CONCERNS VALUATION CANNOT BE SUSPECTED. THE APPELLANT RELIED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NAVI TRADING LIMITED REPORTED IN 278 CTR 219 WHEREIN IT IS HELD THAT WHEN MORE DETAILS ARE SOUGHT OR SOME VERIFICATION IS P ROPOSED, THAT CANNOT BE A SUBSTITUTE FOR THE REASON AND WHICH LEADS THE AO TO BELIEVE THAT AN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. I HAVE CAREFULLY PERUSED THE REASON RECORDED BY THE AO IN THE ASSESSMENT ORDER AND THE SUBMISSION OF THE APPELLAN T. IT IS FOUND THAT THE AO DOES NOT HAVE ANY TANGIBLE MATERIAL EITHER FROM THE ASSESSMENT RECORDS OR FROM OTHER SOURCE. THE AO HAS NOT RECORDED HIS OPINION AS TO HOW HE HAS REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT. HENCE, IT CAN BE CONCLUDE D THAT THE ASSESSMENT WAS REOPENED ONLY TO VERIFY THE SHARE APPLICATION / SHARE PREMIUM MONIES IN THE ABSENCE OF AS TO HOW HE FORMED THE BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE BASIC REQUIREMENT FOR REOPENING THE ASSESSMENT IS 'REA SON TO BELIEVE' AND IT IS SEEN THAT IT IS NOT FULFILLED AND AT THE TIME OF RECORDING THE REASON FOR REOPENING, THE AO HAS TO RECORD AS TO HOW HE HAS A REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE REASON RECORDED MERELY INDICA TES THAT THE AO WANTS TO VERIFY THE SHARE APPLICATION / SHARE PREMIUM MONEY RECEIVED AND NOTHING MORE. HENCE, I ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 6 FIND FORCE IN THE ARGUMENT OF THE APPELLANT. THE WORDS 'REASON TO BELIEVE' SUGGEST THAT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERS ON BASED UPON REASONABLE GROUNDS BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. THE HON'BLE SUPREME COURT IN THE CASE OF SHEO NATH SINGH REPORTED IN 82 ITR 147 HELD AS UNDER : - 'THE REASONS RECORDED FOR THE ITO'S BELIEF WERE (1) THE ASSESSEE WHO WAS AT THE R ELEVANT TIME A MANAGING DIRECTOR IN ABOUT A DOZEN LIMITED COMPANIES ALONG WITH 'OBETOIS WAS BELIEVED TO HAVE MADE SOME SECRET PROFITS WHICH WERE NOT OFFERED FOR ASSESSMENT, AND (2) THE ASSESSEE WAS BELIEVED TO HAVE RECEIVED A SUM OF RS. 22 LAKHS FROM 'OBER OIS' AND THIS SUM OR AT LEAST PART OF WHICH REPRESENTED INCOME WHICH HAD ESCAPED ASSESSMENT. IT WAS ABUNDANTLY CLEAR THAT THE TWO REASONS WHICH HAD BEEN GIVEN FOR THE BELIEF WHICH WAS FORMED BY THE ITO HOPELESSLY FAILED TO SATISFY THE REQUIREMENTS OF THE S TATUTE. THE WORDS REASON TO BELIEVE' SUGGEST THAT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERSON BASED UPON REASONABLE GROUNDS AND THE ITO MAY ACT ON DIRECT OR CIRCUMSTANTIAL EVIDENCE BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. THE ITO WOULD B E ACTING WITHOUT ACTING WITHOUT JURISDICTION IF THE REASON FOR HIS BELIEF THAT THE CONDITIONS ARE SATISFIED DOES NOT EXIST OR IS NOT MATERIAL OR RELEVANT TO THE BELIEF REQUIRED BY THE SECTION. THE COURT CAN ALWAYS EXAMINE THIS ASPECT THOUGH THE DECLARATION OR SUFFICIENCY OF THE REASONS FOR THE BELIEF CANNOT BE INVESTIGATED BY THE COURT. THERE WAS NO MATERIAL OR FACT WHICH I HAD BEEN STATED IN THE REASONS FOR STARTING PROCEEDINGS IN THE INSTANT CASE ON WHICH ANY BELIEF COULD BE FOUNDED OF THE NATURE CONTEMPL ATED BY SECTION 34(1A). THE SO - CALLED REASONS WERE STATED TO BE BELIEFS THUS LEADING TO AN OBVIOUS SELF - CONTRADICTION. HENCE, THE REQUIREMENTS OF SECTION 34(M) WERE NOT SATISFIED AND, THEREFORE, THE NOTICES WHICH HAD BEEN ISSUED WERE WHOLLY ILLEGAL AND INV ALID. ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 7 IN THE RESULT, THE APPEAL WAS ALLOWED.' RELIANCE IS PLACED BY THE UNDERSIGNED ON THE ABOVE MENTIONED HONBLE SUPREME COURT ORDER TO ALLOW THIS GROUND OF APPEAL SINCE IT IS IDENTICAL TO THE CASE HERE. FURTHER, THE JURISDICTIONAL HIGH COURT IN THE CASE OF KHUCHANDNDANI HEALTHPARKS (P) LTD REPORTED IN 68 TAXMANN.COM 91 HELD THAT IN THE ABSENCE OF REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT EVEN IN THE CASE WHERE ASSESSMENT HAS BEEN COMPLETED EARLIER BY INTIMATION U/S 143(1), THE ASSESSMENT IN NO T VALID. HENCE, GROUND NO 1 OF THE APPEAL IS ALLOWED ON THE BASIS OF DISCUSSION ABOVE. 8. IT IS APPARENT ON RECORD THAT THE AO WAS NOT HAVING TANGIBLE MATERIAL EITHER FROM THE ASSESSMENT RECORDS OR FROM ANY OTHER SOURCES. THE AO RECORDED HIS OPINION BUT AS TO HOW HE HAS REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT IS NOT APPARENT ON RECORD . THE ASSESSMENT WAS REOPENED ONLY TO VERIFY THE SHARE APPLICATION/SHARE PREMIUM MONEY. THE BASIC REQUIREMENT FOR REOPENING ASSESSMENT I.E. REASON TO BELIEVE FOR THE ESCAPEMENT OF INCOME IS MISSING . THE REASON MENTIONED ABOVE SPEAKS ABOUT THIS FACT THAT THE AO SHOULD VERIFY THE SHARE APPLICATION/SHARE PREMIUM MONEY RECEIPT AND NOTHING MORE. THE CIT(A) HAS ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT SHEO NATH SINGH VS. AAC OF I. T. (1971) 82 ITR 147 (SC) AND IN THE CASE OF KHUCHANDANI HEALTHPARKS (P) LTD. REPORTED IN 68 TAXMANN.COM 91 . FURTHERMORE, WE FIND ALSO SUPPORT OF THE DECISION OF HONBLE ITAT IN THE CASE OF BALBIR ISPAT PVT. LTD. VS. ITO IN IT A. NO.6953/MUM/2016 FOR THE A.Y.2009 - 10 DATED 28.01.2019. THE RELEVANT FINDING IS HEREBY REPRODUCED AS UNDER.: - ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 8 11. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE REASONS RECORDED REPRODUCED ABOV E THAT THE AO FAILED TO APPRECIATE THAT THE LAW DOES NOT PERMIT HIM TO REOPEN ASSESSMENT UNLESS HE HAS TANGIBLE MATERIAL ON THE BASIS OF WHICH HE FORMS REASON TO BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. THE MERE FACT THAT THE ASSESSEE HAS ISSUED SHARES A T A CERTAIN PREMIUM ITSELF CANNOT BE A REASON TO BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. THE AO HAS NEITHER MENTIONED BY HOW MUCH THE SHARES ARE OVERVALUED I.E. BY WHAT AMOUNT THE PREMIUM EXCEEDS THE INSTINCT VALUE OF THE SHARES NOR THE AMOUNT, WHICH AC CORDING TO HIM, HAS ESCAPED ASSESSMENT. THE REASONS ARE REPRODUCED ABOVE BUT FOR THE SAKE OF BREVITY THE RELEVANT PART OF REASONS ARE THAT, F ROM THE RECORDS, IT IS SEEN THAT THE ASSESSEE IS IN RECEIPT OF HUGE SHARE PREMIUM AMOUNTING TO 4,56,00,000 DURING THE F.Y. 2008 - 09 RELEVANT TO AY 2009 - 10. AS THERE WAS NO SCRUTINY ASSESSMENT DONE FOR THIS YEAR, THE SO - CALLED SHARE PREMIUM HAVING BEEN REC EIVED BY THE ASSESSEE WAS NOT EXAMINED. THE ASSESSEE IS AN UNLISTED COMPANY AND THE SOURCE OF THE SHARE PREMIUM SO RECEIVED AS WELL AS THE NATURE OF THE SHARE APPLICATION RECEIVED (THE INTRINSIC VALUE OF THE SHARE IN COMPARISON TO THE EXCESS PREMIUM RECEIV ED) IS NOT SUBSTANTIATED. WE ALSO FIND FROM THE ABOVE THAT THE AO STATED THAT INCOME IN THE GRAB OF SHARE APPLICATION MONEY RECEIVED IN THIS CASE HAS ESCAPED ASSESSMENT BUT HE COULD NOT POINT OUT ON WHAT BASIS / MATERIAL DOES HE BELIEF THAT THE SHARE CAP ITAL IS NOT GENUINE. IN THE SIMILAR CIRCUMSTANCES, HONBLE BOMBAY HIGH COURT IN THE CASE OF KHUBCHANDANI HEALTHPARKS PVT. LTD. (SUPRA) HELD THAT REGULAR RETURN OF INCOME WAS ASSESSED BY INTIMATION UNDER SECTION 143(1) OF THE ACT AND NO SCRUTINY ASSESSMENT WAS DONE. IN THE ABOVE VIEW, TO ASCERTAIN THE NATURE AND THE JUSTIFICATION FOR CHARGING SHARE PREMIUM, THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT CHARGING OF SHARE PREMIUM OVER AND ABOVE THE INTRINSIC VALUE OF THE SHARE IS ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 9 INCOME WHICH HAS ESCAPED AS SESSMENT. THE NOTICE ITSELF DOES NOT INDICATE THE APPROXIMATE AMOUNT OF INCOME, WHICH THE ASSESSING OFFICER HAS REASON TO BELIEVE HAS ESCAPED ASSESSMENT NOR DOES IT QUANTIFY THE EXTENT TO WHICH THE SHARE PREMIUM RECEIVED WAS IN EXCESS OF INTRINSIC VALUE, W HICH HAS ESCAPED ASSESSMENT. IT GIVES NO REASONS TO INDICATE THE BASIS OF COMING TO THE CONCLUSION THAT SHARE PREMIUM IS EXCESSIVE AND, THEREFORE, INCOME. MOREOVER, THE NOTICE ALSO DOES NOT DISPUTE THAT THIS IS A SHARE PREMIUM BUT SEEK JUSTIFICATION FOR CH ARGING THE SHARE PREMIUM OVER AND ABOVE INTRINSIC VALUE OF THE SHARE PREMIUM. 12. SIMILAR ARE THE FACTS IN THE PRESENT CASE AS WAS BEFORE HONBLE BOMBAY HIGH COURT IN THE CASE OF KHUBCHANDANI HEALTHPARKS PVT. LTD. (SUPRA). RESPECTFULLY FOLLOWING HONBLE B OMBAY HIGH COURT, WE ARE OF THE VIEW THAT THE AO HAS ABSOLUTELY NO MATERIAL TO EVEN SUSPECT, FORGET BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. HENCE, WE QUASH THE REOPENING AND ACCORDINGLY, THE ISSUE OF ASSESSEES APPEAL ON JURISDICTION IS ALLOWED. 9. TH E FACTS OF THE PRESENT CASE IS QUITE SIMILAR TO THE FACTS OF THE CASE I.E. BALBIR ISPAT PVT. LTD. (SUPRA) . THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE ALSO. WE NOWHERE FOUND ANY GROUND TO INTERFERE WITH THE FINDING OF THE CIT(A) IN QUESTION. TAKING INT O ACCOUNT ALL THE FACTS AND CIRCUMSTANCES AND BY REL YING UPON THE DECISION OF THE BALBIR ISPAT PVT. LTD. (SUPRA), WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) IS QUITE JUSTIFIABLE WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. C.O. NO.68 /M UM /20 18 ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 10 10 . THE FACT S OF THE PRESENT CASE ARE QUITE SAME AS DISCUSSED ABOVE WHILE DECIDING IN ITA. NO.6297 /M UM /201 6 , THEREFORE, THERE IS NO NEED TO REPEAT THE SAME . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADJUDICATING THE APPEAL ON MERITS. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE ADDITION OF RS.4,95,00,000/ - MADE BY THE AO U/S 68 OF THE ACT WAS UNTENABLE. 11. SINCE THE ASSESSMENT HAS BEEN HELD IN VALID, THEREFORE, DECIDING THE ABOVE SAID ISSUE WOULD ONLY BE ACADEMIC IN NATURE, HENCE, NEED NOT TO REQUIRE TO BE ADJUDICATED. 1 2 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED AND 2 CROSS - OBJECTION FILED BY THE ASSESS EE IS HEREBY DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 05 / 04 /2021 SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 05 / 04 /2021 VIJAY PAL SINGH ( SR. PS ) ITA NO .6297 /M UM /201 6 CO NO . 68/MUM/2018 A.Y.20 09 - 10 11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI