|COURT:||Bombay High Court|
|CORAM:||A. M. Badar J, S. V. Gangapurwala J|
|CATCH WORDS:||bogus share capital, unexplained cash credit|
|COUNSEL:||Dr. K. Shivram, Neelam Jadhav|
|DATE:||July 5, 2017 (Date of pronouncement)|
|DATE:||July 13, 2017 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 68 Bogus share capital: Mere fact that parties to whom the share certificates were issued and who had paid the share capital money were not traceable and did not appear before the AO in response to summons does not mean that the transaction can be treated as bogus if the documentation shows the genuineness of the transaction|
(i) The Assessing Officer added Rs.95 lakhs as income under Section 68 of the Income Tax Act only on the ground that the parties to whom the share certificates were issued and who had paid the share money had not appeared before the Assessing Officer and the summons could not be served on the addresses given as they were not traced and in respect of some of the parties who had appeared, it was observed that just before issuance of cheques, the amount was deposited in their account.
(ii) The Tribunal has considered that the Assessee has produced on record the documents to establish the genuineness of the party such as PAN of all the creditors along with the confirmation, their bank statements showing payment of share application money. It was also observed by the Tribunal that the Assessee has also produced the entire record regarding issuance of shares i.e. allotment of shares to these parties, their share application forms, allotment letters and share certificates, so also the books of account. The balance sheet and profit and loss account of these persons discloses that these persons had sufficient funds in their accounts for investing in the shares of the Assessee. In view of these voluminous documentary evidence, only because those persons had not appeared before the Assessing Officer would not negate the case of the Assessee. The judgment in case of Commissioner of Income Tax vs. Gagandeep Infrastructure (P.) Ltd., reported in  80 Taxmann 272 (Bombay) would be applicable in the facts and circumstances of the present case.
Commissioner of Income Tax vs. Gagandeep Infrastructure (P.) Ltd., reported in  80 Taxmann 272 (Bombay) and the order of the Apex Court in case of Commissioner of Income Tax vs. Lovely Exports (P.) Ltd., reported in  216 CTR 195 (SC).