D.b. Income Tax Appeal v. Assistant Commissioner Of Income Tax, Circle

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 180 / 2017Bright Metals India Private Limited, Having Its Registered AddressAt F-671, Road No. 9, F-2, VKI Area, Jaipur Through Its DirectorShri Sanjay Porwal S/o Shri Vimal Chandra Porwal ----Appellant Versus Assistant Commissioner of Income Tax, Circle 1, Jaipur, Having ItsAddress At New Central Revenue Building, Bhagwan Das Road, C-Scheme, Jaipur ----Respondent ___________________________________________________ For Appellant(s) : Mr. Siddharth Ranka with Mr. M.Iqbal For Respondent(s) : Mr. Anuroop Singhi with Mr. N.S. Bhati _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYASOrder 03/04/2018 1.We have heard Mr. Siddharth Ranka. 2.Some of the points mentioned in paras Nos.4.5 and 4.6 of the Tribunal order dated 24.02.2017 are reproduced as under: 4.5 The degree of burden of proof on theassessee will vary from assessee to assessee. Incase of private limited companies where sharesare allotted through private placement topersons generally known to directors orshareholders, directly or indirectly, burden ofproof is on higher pedestal as compared topublic limited companies where the large scalesubscription are offered through public issue andshares are subscribed by general public. In caseof private limited companies, the Courts havelaid down a strict approach in terms of satisfyingsuch burden of proof. 4.6 In case of private limited companies,generally persons known to directors orshareholders, directly or indirectly buy orsubscribe to shares. Upon receipt of money, theshare subscribers do not lose touch and becomeincommunicado.Callmoney,dividends,warrants, etc. have to be sent and therelationship remains a continuing one. Therefore, an assessee cannot simply furnishsome details and remain quiet when summonsissued to shareholders remain un-served anduncomplied. As a general proposition, it wouldbe improper to universally hold that theassessee cannot plead that they had receivedmoney, but could do nothing more and it was forthe Assessing Officer to enforce shareholders'attendance in spite of the fact that theshareholders were missing and not available.Their reluctance and hiding may reflect on thegenuinenessofthetransactionandcreditworthiness of the shareholder. It would bealso incorrect to universally state that aninspector must be sent to verify theshareholders/subscribers at the availableaddresses, though this might be required insome cases. Similarly, it would be incorrect tostate that the Assessing Officer should ascertainand get addresses from the Registrar ofCompanies' website or search for the addressesof shareholders themselves.” are never subject matter of the appeal by way of ground orfoundation and in spite of that, the Tribunal has dealt with thosecontentions. Therefore, it will be appropriate for him to move anapplication by way of review before the Tribunal if suchcontentions are there in appeal. We grant opportunity to theTribunal to meet out the paras No.4.5 & 4.6 of the order asreproduced above. 3.We permit him to withdraw this appeal with liberty tomove the Tribunal by way of appropriate application. Period takenfrom 27.06.2017 till today will be taken into consideration underSection 14 of the Limitation Act. 4.The appeal stands disposed of as withdrawn with theaforesaid liberty. (VIJAY KUMAR VYAS),J (K.S.JHAVERI),J