TMI Blog2003 (3) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... -Two questions have since been referred to in this case, namely: "1. Whether the learned Tribunal was justified in law in deleting the addition of Rs. 3,93,000 as introduction of share capital? 2. Whether the Tribunal was justified in law in directing the Assessing Officer to charge tax at 55 per cent. instead of 65 per cent. although the 'a' is not entitled for the same as per term and condition as per company's law?" So far as the first question is concerned, it relates to addition of Rs. 3,93,000 on account of the subscription to share capital being held as ingenuine transaction under section 68 of the Income-tax Act, 1961. The law with regard thereto has since been crystallised. Similar question was involved in I.T. Reference No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to produce the subscribers and establish its case. But the assessee did not do so. Therefore, we do not think that the Commissioner (Appeals) had rightly approached the case. The principle is already laid down in the aforesaid two decisions, namely, Hindusthan Tea Trading Co. Ltd.'s case [2003] 263 ITR 289 (Cal)--I.T. Reference No. 20 of 1996 and. Ruby Traders and Exporters Ltd.' s case [2003] 263 ITR 300 (Cal)-I.T. Reference No. 78 of 1995. The learned Tribunal, however, proceeded on the basis of the ratio decided in CIT v. Stellar Investment Ltd. [1991] 192 ITR 287 (Delhi). According to the learned Tribunal, if the subscribers were not available, in that event, it can be assessed at the hands of such subscribers, not at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Commissioner (Appeals) and the learned Tribunal had applied 55 per cent. as rate of taxes on the basis that the assessee was a company in which the public was interested. Mr. Som had led us through section 2(18) of the Act. We find that this company cannot be brought within the purview of clauses (a) and (aa). Nor can it be brought within the scope of clause (ab) since it has share capital. Neither can it come under clause (ac) in the absence of any declaration. Neither it can be brought within the scope of clause (b). Therefore, it cannot be said to be a company in which the public was interested. Therefore, both the Commissioner (Appeals) and the learned Tribunal had erred in law in reducing the rate of taxes and reversing the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
