TMI Blog2003 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... fter giving opportunity to the assessee and recording it properly to the learned Tribunal. - - - - - Dated:- 17-3-2003 - Judge(s) : D. K. SETH., R. N. SINHA. JUDGMENT D.K. SETH J.-This matter was disposed of by an order dated March 13, 2003. After the order was dictated, Mr. Bagchi appeared and mentioned. He submitted that because of some unforeseen circumstances, he was unable to come to the court within time and, therefore, he could not present himself at the time of hearing. We, therefore, did not sign the order dictated and kept the matter for hearing. The order dated March 13, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made, it was incumbent on the Assessing Officer to issue the summons. Without such summons, it could not be examined as to whether the assessee was able to discharge the prima facie proof of the genuineness of the transaction. Therefore, failure to do so had vitiated the whole process of the enquiry contemplated under section 68 of the Act. He relies on two decisions, viz., Munnalal Murlidhar v. CIT [1971] 79 ITR 540 (All) and Food Corporation of India v. Provident Fund Commissioner [1990] 1 SCC 68 to support his contention. Mr. Some, on the other hand, contends that until and unless 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required to issue notice under section 131 to those alleged shareholders simply on the basis of their names and addresses furnished by the assessee. It appears from the order of the learned Tribunal, at pages 35-36 of the paper book, that the learned Tribunal was satisfied that the assessee-company had filed adequate evidence and materials to justify and substantiate its claim, therefore, the Commissioner of Income-tax (Appeals) was not justified in spite of positive evidence on record in confirming the addition under section 68 of the Act. Thus, it appears that the Commissioner (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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for compelling attendance of witnesses. But the rigours provided in Order 16 of the Code of Civil Procedure, cannot be borrowed in a proceeding under this Act where the proceedings are not in the nature of an adversary system and particularly when the proceedings stand altogether on a different footing than a suit and the onus of proof in such a case is on the assessee against whom the allegation is made. Neither rules of evidence as provided for in the Evidence Act in its strict sense nor the normal procedure of the Civil Procedure Code, can be attracted unless it is made specifically 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is free to take his own decision as he may deem fit and proper. In the facts and circumstances of this case, despite request made by the assessee, no summons under section 131 of the Act was issued. This seems to be a denial of the assessee's right of opportunity in-built in section 68 of the Act available to it. This has vitiated the process. The question is required to be determined in the light of the decision in Hindusthan Tea Trading Co. Ltd. v. CIT [2003] 263 ITR 289 (Cal)--I.T.R. No. 20 of 1996, disposed of by this court on March 11/12, 2003 and CIT v. Ruby Traders and Exporters 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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