TaxTMI 
TaxTMI 
2003 (3) TMI 64
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....3, 2003, is hereby recalled. By consent of the parties, the matter is treated as on day's list for hearing. The matter is taken up for hearing today. Mr. Bagchi points out that he is only concerned with one question that there was a request for issuing summons under section 131 of the Income-tax Act, 1961, by the assessee which finds mention at page 13 of the paper book being the order of the Assessing Officer (ITO) and at page 29 of the paper book being the order of the Commissioner (Appeals). According to him, in the proceeding under section 68 of the Act, the onus or burden is on the assessee to establish the identity of the subscribers and prove their credit-worthiness and the genuineness of the transaction. According to him, in this....
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....s the prima facie proof was discharged by the assessee, the onus would never shift on the Assessing Officer. Therefore, there was no necessity of issuing any summons under section 131 on his part. He secondly contended that even if the assessee had made a request for issuing of summons such summons could not be issued under section 131 until and unless the assessee took effective steps for issuing summons as contemplated under Order 16, rule 1 of the Code of Civil Procedure (the CPC). According to him, it was incumbent on the assessee to prove the genuineness of the transaction. Mr. Some relies on the decisions in Thiagarajar Charities v. Addl. CIT [1978] 114 ITR 699 (Mad); Sri Jagdish Saran Shukla v. CIT [1988] 171 ITR 694 (All); Shankar I....
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.... (Appeals) proceeded on the basis that it was not necessary to issue summons under section 131 until the assessee was able to prove at least prima facie the genuineness with regard to the transaction; whereas the learned Tribunal had found that there were sufficient materials to hold otherwise. But at the same time, the learned Tribunal was oblivious of the situation as available under section 68 and there being in fact no material to establish the identity of those 21 shareholders or to prove their creditworthiness or the genuineness of the transaction. It cannot be said that there was sufficient material and the onus could not be said to have been shifted on the Department. There the learned Tribunal was incorrect. Simple disclosure of....
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....ly applicable by the statute or the rules in the process itself. Therefore, when an assessee seeks assistance even by way of a letter in the form of a request, even then it can be said to be a step taken for issuing of summons. It is the power not the procedure, that has been borrowed under section 131 of the Act. An opportunity in built in section 68 of the Act has been given to the assessee to prove to the satisfaction of the Assessing Officer that the apparent is real and the transaction was genuine. In the process of availing of such opportunity, the assessee may seek aid of section 131 of the Act. If, in the process, in order to secure attendance of the subscriber a request is made by the assessee to the Assessing Officer for issuing o....
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....xporters Ltd. [2003] 263 ITR 300 (Cal)--I.T.R. No. 78 of 1995, disposed of by this court on March 12, 2003. In the light of the observations made in those two decisions having regard to the facts and circumstances of the case, we answer question No. 1 in the negative in favour of the Revenue; but, however, we remand the case before the learned Tribunal for deciding the same afresh, since, in our opinion, there is no sufficient material to come to a definite conclusion. The learned Tribunal will remit the matter to the Assessing Officer for issuing summons under section 131 of the Act on the said 21 shareholders and then record the evidence, if available, and return the same after giving opportunity to the assessee and recording it properly ....