A.K Garodia, A.M:— This is revenue's appeal directed against the order of Ld. CIT(A)-VIII. New Delhi dated 31.8.2009 for assessment year 2001-2002.
2. The grounds raised by the revenue read as under:—
1. The order of the Ld. CIT(A) is erroneous and contrary to facts and law
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law in deleting the addition of Rs. 56,00,000/- made by the Assessing Officer u/s. 68 of the IT Act being the unexplained credit on account of share application money and share premium money.
3. The Ld. CIT(A) did not appreciate the fact that the assessee had failed to discharge the onus of proving the source and creditworthiness of the creditors/share applicants.
3. Brief facts of the case are that during this year, the Assessing Officer has made addition of Rs. 80.85 lakhs on account of share capital received during this year. It has been noted by the Assessing Officer in the assessment order that the assessee has received fresh share application of Rs. 80.85 lakhs at a premium of Rs. 490/- share. This addition was made by the Assessing Officer mainly for the reason that there is no basis on which the shares of the assessee company can command premium of Rs. 490/- share. Being aggrieved, the assessee carried the matter in appeal before Ld. CIT(A). Before Ld. CIT(A), it was submitted by the assessee that during this year, the assessee company has received share application money of Rs. 56 lakhs only and the balance amount of R. 26.50 lakhs was received in the preceding year and in that year also, addition was made and the same was deleted by the Tribunal. Ld. CIT(A) has deleted the addition of Rs. 56 lakhs on account of fresh share application money received during this year on the basis that the same was received from reputed companies through account payee cheques and all the companies are Income tax assesses and copies of their PAN No. and returns of income were made available to the Assessing Officer. Regarding the balance addition, the same was deleted by the Ld. CIT(A) by the Ld. CIT(A) on the basis that it was not received during this year. Now, the revenue is in appeal regarding deletion of Rs. 56 lakhs for which fresh share application money was received during this year.
4. It was submitted by the Ld. DR of the revenue that the addition was made by the Assessing Officer on the basis that the share of the assessee does not command a high premium of Rs. 490/- share and no finding is given by Ld. CIT(A) on this account as to how the shares of the assessee company could command premium of Rs. 490/- and hence this aspect should be restored back to the file of the Ld. CIT(A) for afresh decision after examining this aspect. Regarding judgment of Hon'ble Apex Court rendered in the case of Lovely Exports (Pvt.) Ltd. as reported in 261 CTR 19, it was submitted that this judgment is not applicable in the present case because the facts are different. It was submitted that in the case of Lovely Exports (supra) it was not the case of the revenue that the assessee company has received high amount of hare premium which could not be justified on the basis of balance sheet and future prospect of the assessee company.
5. As against this, Ld. AR of the assessee supported the order of the Ld. CIT(A) and reliance was placed on the judgment of Hon'ble Apex Court rendered in the case of Lovely Exports (supra). It was also his submission that in the earlier years also, similar addition was deleted by the Tribunal in assessee's own case and hence that Tribunal order should be followed in the present case also.
6. We have heard the rival submissions and have gone through the material available on record. First, we deal with this contention of the Ld. AR of the assessee that the issue in the present appeal is covered by the Tribunal decision in assessee's own case and also by the judgment of Hon'ble Apex Court rendered in the case of Lovely Exports (supra). We find that the relevant para of this Tribunal decision rendered in the case of the assessee in assessment year 2000-2001 has been reproduced by Ld. CIT(A) on page No. 6 & 7 of his order and in the same, we find that this aspect was not there in that year that the share application money was received by the assessee company at a high premium of Rs. 490/- share whereas in the present year, this is the main basis on which addition was made by the Assessing Officer. Hence, merely on this basis of the Tribunal order in the preceding year, the issue in the present year cannot be decided and in the same, this aspect has to be examined as to whether the receipt of high share premium of Rs. 490/- share in the present year is reasonable and in spite of this high premium, the transaction of receipt of share application money in the present year can be accepted as a genuine transaction. Regarding judgment of Hon'ble Apex Court in the case of Lovely Exports (supra), we feel that judgment is not squarely applicable in the present case because the facts are different. In that case, it was not the allegation of the revenue that because of high amount of share premium on share, that the transaction in question was not genuine. Hence, we feel that this matter should go back to the file of the Ld. CIT(A) for afresh decision. We, therefore, set aside the order of the Ld. CIT(A) on this issue to the extent of addition deleted by him of Rs. 56 lakhs received by the assessee company during this year and restore this matter back to the to his file for a fresh decision. Ld. CIT(A) should decide this aspect as to whether a receipt of high paid premium share of Rs. 490/- share for the present year by the assessee company is reasonable and in spite of this high premium, the transaction in question is genuine transaction. Ld. CIT(A) should pass a speaking order on this aspect and decide the issue afresh after providing adequate opportunity of being heard to both sides. If required, he may obtain a remand report from the Assessing Officer on this aspect.
7. In the result, the appeal of the revenue stands allowed for statistical purposes.