D.K.Seth, J. - (1.) This application is for review of the ex parte judgment and order dated March 12, 2003, passed by this court in Income-tax Reference No. 78 of 1995 (see [2003] 263 ITR 300). Mr. Pratik Prakash Banerjee appearing for the applicant has urged that his client was unable to produce the documents which are annexures E and E-l to this review application, which are new and important matter of evidence on record not within the knowledge of the asses-see/applicant and could not be produced by it at the time of judgment despite exercise of due diligence. He pointed out that the subscription being less than Rs. 20,000, it was not compulsory for the subscribers to furnish their PAN numbers and, therefore, it was just not possible for the assessee to furnish PAN numbers of the subscribers. He had also pointed out that the letters and circulars issued by the Union of India being annexures E and E-l, which are binding on the Department were suppressed by the Department and were not placed before the court and if these documents were produced, the court would not have drawn the inference that has been drawn adverse to the asses-see. He then contended that the amount was not a cash credit but was share capital and as such it would not come within section 68 of the Act and thus the whole exercise of jurisdiction by the income-tax authority was incompetent and this court had omitted to note this important material fact. In support of his contention/ Mr. Banerjee had relied on the decisions in CIT v. Hunger-ford Investment Trust Ltd. [1935] 3 ITR 188 (Cal); CIT v. Bansi Dhar and Sons; Additional CIT v. Hasmat Rai Raj Pal; CIT v. Scindia Steam Navigation Co, Ltd.; CIT v. Kundan Investment Ltd. and Hindustan Tea Trading Co. Ltd. v. CIT. Opposite party/Department's submission :
(2.) On the other hand, Mr. Deb contended that the review is not maintainable. In support of his contention, he relied on CIT v. Hungerford Investment Trust Ltd. [1935] 3 ITR 188 (Cal); CIT v. Bansi Dhar and Sons; Additional CIT v. Hasmat Rai Raj Pal, namely, the same decisions cited by Mr. Banerjee. He then contended that the circulars do not bind the courts. In support, he relied on Bengal Iron Corporation v. CTO; CIT v. Hero Cycles Pvt. Ltd. and Hindustan Aeronautics Ltd. v. CIT. He then submitted that the jurisdiction under section 256 of the Income-tax Act, 1961, is a jurisdiction on reference, which is distinct and separate from the jurisdiction exercised by the court. It is a special jurisdiction in exercise whereof it cannot assume the jurisdiction to review. In support he relied on CIT v. Scindia Steam Navigation Co. Ltd. and CIT v. Bansi Dhar and Sons. Facts :
(3.) Before we proceed to answer the questions raised by learned counsel for the respective parties, we may briefly refer to the facts of this case. The decision sought to be reviewed herein has since been reported in CIT v. Ruby Traders and Exporters Ltd. In the case of the assessee the Assessing Officer disbelieved the genuineness of the subscription received by the assessee from its directors and promoters as well as from the public. On appeal, the Commissioner (Appeals) found that proper investigation was not made in respect thereof. Therefore, the matter was remanded to the Assessing Officer for enquiring into the matter afresh on the ground that the earlier enquiry was made in hot haste. On remand in the course of the enquiry, opportunity was given to the assessee. It was found that the income-tax file numbers of the promoters, and the directors were disclosed and all those payments were made by cheques except a sum of Rs. 20,000 subscribed in cash by Amarnath Gupta, who was not an income-tax assessee. The rest Rs. 90,88,750 was subscribed by the general public. Despite successive opportunity being given, nothing was disclosed about the identity of the subscribers except furnishing a list of subscribers. On appeal the Commissioner (Appeals) had again remanded the case in respect of shares worth Rs. 3,80,000 for investigation for ascertaining the creditworthiness of the subscriber and the genuineness of the transactions. Whereas the Commissioner of Income-tax (Appeals) disallowed Rs. 19,88,750 under section 68 on the basis of the findings of fact arrived at by him relying on the materials produced. On appeal, the Tribunal had held that since these were paid by cheques, therefore, this could not have been disallowed. In the facts and circumstances or the said case, we had answered question No. 1 in the affirmative, in favour of the Revenue and question No. 2 in the negative against the assessee.;