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TMI Blog2021 (12) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 23-11-2021 - THE HON BLE JUSTICE T.S. SIVAGNANAM And THE HON BLE JUSTICE HIRANMAY BHATTACHARYYA Mr. Debasish Chowdhury , Adv. For Appellant ORDER The Court : This appeal by the assessee filed under Section 260A of the Income Tax Act, 1961 (the Act, for brevity) is directed against the order dated 1st March, 2017 passed by the Income Tax Appellate Tribunal, D Bench, Kolkata in ITA No.644/Kol/2015 for assessment year 2009-10. The appellant has raised the following questions of law for consideration :- I. Whether on the facts and circumstances of the case the Learned Tribunal passed the orders under section 263 in the case of 5 out of six share applicants, wherein the learned Commissioner of Income Tax, Kolkata-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Pragati Financial Management Pvt. Ltd. vs. The Commissioner of Income Tax II Ors. in ITAT 178 of 2016, dated 7th March, 2017. By the said judgment appeals were dismissed observing that there is no substantial questions of law arising for consideration. The operative portion of the judgement reads as follows :- 9. Main thrust of the appellant s case is that the provisions of Section 68 of the Act as amended could not be given retrospective operation and if that position of law was accepted, then it was not open to the C.I.T. to direct an enquiry to ascertain the source and genuineness of the sums being projected by the appellants as capital receipts. Mr. Majumdar wants us to reject the finding of the Tribunal that Section 68 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evailed in the relevant previous year in that proceeding, and held, inter alia :- We are unable to accept the submission that any further investigation is futile because the money was received ono capital account. The Special Bench in the case of Sophia Finance Ltd. (supra) opined that the use of the words any sum found credited in the books in Section 68 indicates that the said section is very widely worded and an Income-Tax Officer is not precluded from making an enquiry as to the true nature and source thereof even if the same is credited as receipt of share application money. Mere fact that the payment was received by cheque or that the applicants were companies, borne on the file of Registrar of Companies were held to be neut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made specially to its subsisting share capital, quantum rise in share capital and reserve and surplus on issue of share capital with high premium during the relevant previous year. In this judgement, we do not consider it necessary either to reproduce the particulars of accounts of individual assessees or to refer to the manner in which the capital receipts were realised. The factual background of these cases are more or less similar to the facts involved in the case of Rajmandir Estates Private Ltd. (supra), and the learned counsel for the parties have also confined their submissions to points of law only. The capital receipts in respect of which inquiries have been ordered by the C.I.T. have similar features, being fresh share capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as applicability of the said statutory provision is concerned, even though the Tribunal in Subhalakshmi Vanija Pvt. Ltd. (supra) had held that the provisos to Section 68 of the Act are retrospective in their operation, and delivered the decision against the assessee in that case that reasoning. In the appeal of Rajmandir Estates Private Ltd. (supra), the Coordinate Bench did not consider it necessary to examine the question of retroactivity of the aforesaid provision. The Coordinate Bench found the order of the C.I.T. to be valid examining the order applying the unamended provision of Section 68 of the Act only. We do not find any other distinguishing element in these appeals which would require addressing the question s to whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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