Amritrashi Infra (P) Ltd. v. Pr. CIT [ITA No.
838/Kol/2019, dt. 12-8-2020] 2020 TaxPub(DT) 3145 (Kol-Trib)
Revision powers under section 263 invoked for the second
time on the same topic--Whether permissible--Addition of share capital with
large share premium therein.
Facts:
Assessee had received share capital with large share
premium to the tune of Rs. 45.66 crores which was added under section 68 by an
assessing officer (first) in their scrutiny assessment ignoring the evidentiary
submissions made by the assessee manifesting the details of the investors to
the share capital. This was revised by a first PCIT with a remand to the
assessing officer asking him to do a de novo proper enquiry after giving
an opportunity to assessee to meets interests of justice. In the review
assessment order a second assessing officer did consider all the submissions of
the PAN numbers, the source of the investments and the identity of the
investors besides which also issued summons under section 133(6) to corroborate
the evidences of the assessee which stood satisfactorily discharged on the
point of share premium receipt in his opinion. Thus addition under section 68
was dropped by the second assessing officer. Subsequently a second PCIT once
again sought revision proceedings under section 263 citing the order of the
second assessing officer to be erroneous and prejudicial interests of the
revenue due to improper assessment (in his opinion) of the share
capital/premium having been made. It was the plea of the assessee before ITAT
that the second revision proceedings were invalid as per law.
Held that the second revision proceedings were invalid --
void ab initio.
By the second assessing officer forming his assessment
order after hearing the assessee's case the revision petition invoked by first
PCIT stood merged with the revised assessment order under doctrine of merger.
Thereafter once again citing that order to be erroneous and prejudicial to the
interests of the revenue under section 263 under the same topic was not
permissible.
The assessee satisfied the required onus to discharge his
obligations on share premium by proving --
Identity of the investors
Their tax status
Their source of income
The receipt of money thru proper
banking channels
For the said assessment year 2012-13 the law does not
envisage one to go beyond proving this or does not warrant proving the source
of the source. The amendment in section 68 read with 56(2)(vii) and section
2(24)(xvi) vide Finance Act with effect from 1-4-2013 is only prospective for
assessment year 2013-14 and not to years prior to this.
The decision of CIT v. Lovely Exports (P) Ltd. 317 ITR
218 (SC) was upheld.
In DCIT v. M/s. Alcon Biosciences (P) Ltd., ITA No.
1946/M/2016, Order dated 28-2-2018 : 2018 TaxPub(DT) 2037 (Mum-Trib)
it was held that the provisos to section 68 introduced vide Finance Act, 2012
with effect from 1-4-2013 was prospective and not retrospective.
Also upheld in CIT v. Gagandeep Infrastructure (P.) Ltd.
(2017) 80 taxmann.com 272 (Bom) : 247 Taxman 245 (Bom) : (2017)
394 ITR 680 (Bom) : 2017 TaxPub(DT) 1238 (Bom-HC)
Trend Infra Developers Pvt. Ltd. [ITA No. 2270/Kol/2016]
Major Metals Ltd. v. Union of India (2012) 19 taxmann.com 176 (Bom) : (2012) 207 Taxman 185 (Bom) :
(2013) 359 ITR 450 (Bom) : 2012 TaxPub(DT) 2113 (Bom-HC)