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1 - 10 of 12 (0.25 seconds)Section 68 in The Companies Act, 1956 [Entire Act]
Finance Act, 2012
M/S. Vodafone India Service Pvt. Ltd vs Union Of India on 6 September, 2013
This legal position is further reiterated by
the Hon'ble Bombay High Court, Nagpur Bench in a series of tax
appeals in Income-tax Appeals No. 26 to 31 of 2017 dated 08-06-2017,
where the Hon'ble High Court has considered the question of taxability
of share premium in the light of its earlier decision in case of Vodafone
India Services Pvt Ltd vs UOI (supra) and also considering the ratio of
judgement of Hon'ble Apex Court in the case of G.S. Homes & Hotels
Pvt Ltd vs DCIT in Civil Appeal No.7370 to 7380 of 2016 dated 09-08-
2016 held that definition of income as provided u/s 2(24) of the Act at the
relevant time did not define as income in consideration received for
issue of shares in excess of its fair market value. This came into the
statute wef 01-04-2013 and thus would have no application to the share
premium received by the respondent assessee in the previous year
relevant to the AY prior to 2013-14. Similarly, the amendment to section
68 of the Act, by addition of Proviso was made subsequent to previous
year relevant to the subject assessment year and cannot be invoked.
Therefore, we are of the considered view that even under this count no
addition can be made towards share premium u/s 68 of the Act, as it is
on account of capital a receipt does not come within the ambit of
definition of "income".
The Income Tax Act, 1961
The Companies Act, 1956
Sri Shankar Khandasari Sugar Mills vs Commissioner Of Income-Tax on 19 March, 1991
In this regard,
he relied upon various judicial precedents including the decision of
Hon'ble Karnataka High Court in the case of Shankar Kandassari Sugar
Mills Ltd vs CIT 193 ITR 669(Kar). The Ld.AR further submitted that the
Ld.CIT(A) has admitted additional evidence, when the AO has refused to
admit additional evidence filed before him. Therefore, there is no
question of violation of Rule 46A and hence, the ground taken by the
revenue may be dismissed.
The Finance Act, 2018
Commissioner Of Income Tax vs M/S Gagandeep Infrastructure Pvt Ltd on 2 April, 2018
In this case, the assessee has explained the credit
found in its books of account with necessary evidence to prove identity,
creditworthiness and genuineness of transaction and, therefore, we are
of the considered view that the share premium cannot be brought to tax
within the ambit of provisions of section 68 before insertion of Proviso to
section by the Finance Act, 2012 wef 01-04-2013 which is evident from
the fact that the Hon'ble Bombay High Court in the case of CIT vs
Gagandeep Infrastructure Ltd vs 394 ITR 680 (Bom) observed that the
Proviso inserted wef 01-04-2013 is considered to be prospective in
nature and applicable to AY 2013-14. This fact is further strengthened
by the latest decision of Hon'ble Bombay High Court, Nagpur Bench in a
series of tax appeals in Income-tax Appeals No. 26 to 31 of 2017 dated
08-06-2017, where the Hon'ble High Court has considered the question
of addition made u/s 68 in respect of share premium and held that
amendment to section 68 of the Act, by the insertion of Proviso thereto
26
ITA 2943/Mum/2014
took place wef 01-04-2013, therefore, it is not applicable to the subject
assessment years prior to AY 2013-14. Hence, we are of the considered
view that the AO was incorrect in making addition towards share
application money including share premium u/s 68 of the Income-tax
Act, 1961.
Sunrise Academy Of Medical ... vs Income Tax Officer on 22 May, 2018
19. Coming to the case laws relied upon by the Ld.DR. The Ld.DR has
relied upon the decision of Hon'ble Kerala High Court in the case of
Sunrise Academy of Medical Specialities India Pvt Ltd vs ITO in W.A.
No.1297 of 2018 dated 12-07-2018 to argue that any premium received
by a company on sale of shares come in excess of its face value, if the
company is not one in which the public is substantially interested, would
be treated as 'Income from other sources', as seen from section
56(2)(viib) of the Act, which we do not think can be controlled by the
provisions of section 68 of the Act. We have gone through the case law
relied upon by the Ld.DR in the light of facts of the present case and find
that the case laws relied upon by the Ld.DR has no application as in the
case considered by the Hon'ble Kerala High Court, there is no clarity
whether the decision pertains to the position of law as enumerated in
pre-amended or post amended provisions, therefore, the same cannot
be applied to the facts of the present case because the issue involved in
this case clearly fall within the ambit of pre-amended provisions of
section 68 and section 56(2)(viib) of the Income-tax Act, 1961.