PCJ FINVEST PRIVATE LIMITED,SILIGURI, WEST BENGAL V. DEPUTY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(4),KOLKATA, AAYAKAR BHAWAN POORVA

MA 50/KOL/2025

AI Insights

The case revolves around a Miscellaneous Application filed by PCJ Finvest Private Limited seeking correction of an earlier Tribunal order concerning the assessment year 2008-09. The application was based on the grounds that certain facts were incorrectly stated in the Tribunal's earlier order, particularly regarding the compliance of share subscriber companies with summons under section 131 of the Income Tax Act and the incorrect mention of the date of pronouncement. The Tribunal, after reviewing the records and hearing the arguments, acknowledged the errors and corrected them, thereby allowing the assessee's application.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 361245 (ITAT-KOLKATA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2008-2009
• Other Referred Cases: CIT vs. Gangadeep Infrastructure Pvt. Ltd., Orissa Corporation Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SOUMITRA CHOUDHRY
• Keywords: Question of law
• Section: 56; 131; 133(6)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI SONJOY SARMA, JM MA No.50/KOL/2025 (Arising in ITA No. 1301/KOL/2023 for A.Y. 2008-09) DCIT Aaykar Bhavan Poorva, 5 th Floor, Room No.509, 110-Shanti Pally, Kolkata-700107, West Bengal Vs. PCJ Finvest Private Limited 4th Floor, Commercial Block 2nd Mile Metro Heights, Sevoke road, Siliguri-734001, West Bengal (Applicant) (Respondent) PAN No. AABCP8375R Assessee by : Shri Soumitra Choudhry, AR Revenue by : None Date of hearing: 16.05.2025 Date of pronouncement : 21.05.2025 O R D E R Per Rajesh Kumar, AM: By Virtue of this Miscellaneous Application, the assessee seeks correction/ modification of the order passed in ITA No. 1301/KOL/2023 dated 28.02.2025 on the ground that the facts have wrongly mentioned in the said order. 02. After hearing the ld. AR and examining the records , we find that the Bench while passing the impugned order, some facts were wrongly mentioned. The date of pronouncement is wrongly mentioned as 28.02.2025 and the correct date is ‘28.03.2025’. Similarly on page no.11 para 7 of the impugned order, it has been mentioned that the share subscriber companies did not comply with the summon issued u/s 131 of the Act which is incorrect as the share subscriber companies have duly complied with summons issued u/s 131 of the Act as is Page | 2 MA No.50/KOL/2025 PCJ Finvest Private Limited; A.Y. 2008-09 apparent from noting in the log book as well as the records available in the appeal folder at page no.3 and 4 of the Paper Book and written submissions filed by the assessee. Therefore, Para no.7 of the order passed in the Tribunal order needs to be rectified. Accordingly, the impugned order is amended and modified with the following : a. The date of pronouncement may be read as 28.03.2025 b. The para 7 of the order is substituted with the following para: “7. After hearing the rival contentions and perusing the material on record, we find that the assessee has furnished before the AO in the remand proceedings as well as before the Ld. CIT(A) all the evidences qua the share capital/ share premium raised during the instant financial year comprising the names , addresses ,proofs of voter IDs, Driving licenses, PAN cards, list of directors with shareholders with DIN, copies of ITRs, copies of bank statements and assessment orders u/s 143(3)/143(1) of the Act etc. in case of share subscribers. We find that though the directors of the assessee company as well as the subscribers’ companies had complied with summons u/s 131 of the Act. We even note that the AO has not issued notices u/s 133(6) of the Act to the share subscribers despite the assessee furnishing all the details/evidences as called by the AO in the remand proceedings. We note that the AO has not pointed any defect of any kind whatsoever in the documents furnished before the AO. Besides the AO has harped on the fact that these shares were allotted at very high premium by ignoring the facts that there was no bar on issue of shares of high premium in the AY 2012-13 because Clause (viib) to Clause 2 section 56 inserted by Finance Act, 2012 w.e.f 01.04.2013 and was applicable and effective from AY 2013- Page | 3 MA No.50/KOL/2025 PCJ Finvest Private Limited; A.Y. 2008-09 14. Similarly, the provisions in Finance Act, 2012 that the assessee company issuing share premium have to prove source of source has been inserted w.e.f 1.4.2013 is also not applicable in the case of assessee as the same is applicable from AY 2013- 14 onwards. The case of the assessee finds support from the decision of the Hon’ble Bombay High Court in the case of CIT vs. Gangadeep Infrastructure Pvt. Ltd. in 80 taxmann.com 272 (Bom). Therefore, the appellate order passed by the Ld. CIT(A) upholding the assessment order which lacked any enquiry on the evidences filed by the assessee and also failure on the part of the AO to bring any substantive evidences on record to the conrary, we are unable to sustain the appellate order. In our opinion, the summons issued u/s 131 to the directors of the assessee company and also to the subscriber companies were duly complied with and also the assessee has filed all the evidences as called for by the AO qua the subscribers. Under the circumstances, we are not in a position to sustain the order of Ld. CIT(A). We find support from the decision of Hon’ble Supreme Court in the case of Orissa Corporation Ltd. (supra) where it has been held that while coming to the above conclusion. The operative part is extracted below: “That in this case the respondent had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notices under Section 131 at the instance of the respondent, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were creditworthy. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the respondent could not do anything further. In the premises, if the Tribunal came to the conclusion that the respondent had discharged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. I f the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case.” Page | 4 MA No.50/KOL/2025 PCJ Finvest Private Limited; A.Y. 2008-09 03. In view of the above, the Miscellaneous application of the assessee is allowed the order dated 28.02.2025 is modified to the above extent only. 04. In the result, MA of the Revenue is allowed. Order pronounced in the open court on 21.05.2025. Sd/- Sd/- (SONJOY SARMA) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:21.05.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "