Twistex Commerce Pvt. Ltd., Kolkata V. PCIT, -2, KOLKATA, Kolkata

ITA 1192/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4698 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2016
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 147; 68; 148; 263

Judgement Text

ITA NO.1192/KOL/2016 M/S. TWISTEX COMMERCE PVT. LIM ITED-A.Y.2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHE S : D : KOLKATA BEFORE SHRI P.M.JAGTAP, AM & SHRI N.V. VASUDEVAN, J M ITA NO.1192/KOL/2016 ASSESSMENT YEAR: 2011 - 12 TWISTEX COMMERCE PVT. LTD. C/O. M.SETHIA & CO., CHARTERED ACCOUNTANTS, 3, BENTICK STREET (2 ND FLOOR), KOLKATA-700001. REP. BY NONE PAN : AADCT 6723 D VS. PRINCIPAL C.I.T. 2, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. REP. BY SHRI NIRAJ KUMAR, CIT (APPELLANT) (RESPONDENT) DATE OF HEARING : 08.08 .201 6 DATE OF PRONOUNCEMENT : 08.08.2016. ORDER PER SHRI P.M.JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. PRINCIPAL COMMISSIONER OF INCOME TAX-2, KOLKATA DATED 23.03.2 016 FOR THE ASSESSMENT YEAR 2011- 12 PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961. 2. AT THE TIME OF HEARING FIXED TODAY, I.E. ON 08.08.2016, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD MOVED AN APPLICATION DATED 06.0 8.2016 SEEKING A SHORT ADJOURNMENT. HOWEVER KEEPING IN VIEW THAT THE ISSUES INVOLVED IN THIS APPEAL OF THE ASSESSEE ARE SQUARELY COVERED BY THE DECISION OF COORDINATE BENC H OF THIS TRIBUNAL RENDERED IN THE CASE OF SUBHLAKSHMI VANIJYA PVT. LTD., VS. CIT (ITA NO. 1104/KOL/2014 A.Y. 2009-10) WHICH HAS BEEN AFFIRMED BY THE JURISDICTIONAL HIGH COURT, THE REQUEST OF THE ASSESSEE FOR ADJOURNMENT IS REJECTED AND THE APPEAL IS BEING DIS POSED OF ACCORDINGLY. ITA NO.1192/KOL/2016 M/S. TWISTEX COMMERCE PVT. LIM ITED-A.Y.2011-12 2 3. BRIEFLY STATED THE FACTS OF THE CASE IN THIS APPEAL IS SIMILAR TO THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA PVT.LTD . (SUPRA), INASMUCH AS RETURN WAS FILED BY THIS COMPANY WITH MEAGRE INCOME; INTIMATI ON WAS ISSUED U/S 143(1); THEREAFTER NOTICE U/S 148 WAS ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIES DIVULGING A PALTRY ESCAPEMENT OF INCOME OR OTHERWISE ; ASSESSMENT ORD ER WAS PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKING NOMINAL ADDITIONS AND THE AO, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDINGS, MADE SOME FORMAL ENQUIRIES ABOUT SHARES ISSUED BY THIS COMPANY AT HUGE PREMIUM BY ISSUING NOTICE U/S 133(6 ) TO SOME OF THE SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION . THE JURISDICTIONAL CIT HAS PASSED ORDER U/S 263 IN ALL SUCH CASES, WHICH HAS BEEN ASS AILED BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISPOSED OF MORE T HAN 500 CASES INVOLVING SAME ISSUE THROUGH CERTAIN ORDERS WITH THE MAIN ORDER HAVING B EEN PASSED IN A GROUP OF CASES LED BY SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (ITA NO.1104 /KOL/2014) DATED 30.7.2015 FOR THE A.Y. 2009-10. 5. WE FIND AS HAS ALSO BEEN ADMITTED BY THE LD. DR THAT FACTS AND CIRCUMSTANCES OF THE CASES UNDER CONSIDERATION ARE MUTATIS MUTANDIS SIMILAR TO THOSE DECIDED EARLIER. IN OUR AFORESAID ORDER IN SUBHLAKSHMI VANIJYA PVT. LTD., VS. CIT (ITA NO. 1104/KOL/2014 A.Y. 2009-10), WE HAVE DRAWN THE FOLLOWING CONCLUSIONS: - A. CONTENTION OF THE ASSESSEE THAT SINCE THE AO OF TH E ASSESSEE-COMPANY WAS NOT EMPOWERED TO EXAMINE OR MAKE ANY ADDITION ON ACCOUN T OF RECEIPT OF SHARE CAPITAL WITH OR WITHOUT PREMIUM BEFORE AMENDMENT TO SECTION 68 BY THE FINANCE ACT, 2012 W.E.F. A.Y. 2013-14 AND HENCE THE CIT BY MEANS OF IMPUGNED ORDER U/S 263 COULD NOT HAVE DIRECTED THE AO TO DO SO, IS UNSUSTA INABLE. B. FAILURE OF THE AO TO GIVE A LOGICAL CONCLUSION TO THE ENQUIRY CONDUCTED BY HIM GIVES POWER TO THE CIT TO REVISE SUCH ASSESSMENT OR DER, BY HOLDING THAT :- I) THE ENQUIRY CONDUCTED BY THE AO IN SUCH CASES CA NT BE CONSTRUED AS A PROPER ENQUIRY; ITA NO.1192/KOL/2016 M/S. TWISTEX COMMERCE PVT. LIM ITED-A.Y.2011-12 3 II) CIT U/S 263 CAN SET ASIDE THE ASSESSMENT ORDER AND DIRECT THE AO TO CONDUCT A THOROUGH ENQUIRY, NOTWITHSTANDING THE JUR ISDICTION OF THE AO IN MAKING ENQUIRIES ON THE ISSUES OR MATTERS AS HE CON SIDERS FIT IN TERMS OF SECTION 142(1) AND 143(2) OF THE ACT, WHICH IS RELE VANT ONLY UP TO THE COMPLETION OF ASSESSMENT ; III) INADEQUATE INQUIRY CONDUCTED BY THE AO IN THE GIVEN CIRCUMSTANCES IS AS GOOD AS NO ENQUIRY AND AS SUCH, THE CIT WAS EMP OWERED TO REVISE THE ASSESSMENT ORDER ; IV) THE ORDER OF THE CIT IS NOT BASED ON IRRELEVANT CONSIDERATIONS AND FURTHER IN THE PRESENT CIRCUMSTANCES, HE WAS NOT OB LIGED TO POSITIVELY INDICATE THE DEFICIENCIES IN THE ASSESSMENT ORDER O N MERITS ON THE QUESTION OF ISSUE OF SHARE CAPITAL AT A HUGE PREMIUM ; AND V) THE AO IN THE GIVEN CIRCUMSTANCES CANT BE SAID TO HAVE TAKEN A POSSIBLE VIEW AS THE REVISION IS SOUGHT TO BE DONE ON THE PR EMISE THAT THE AO DID NOT MAKE ENQUIRY THEREBY RENDERING THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THAT SCORE ITSELF. C. IN THE GIVEN FACTS AND CIRCUMSTANCES OF ALL SUCH CASES, THE NOTICES U/S 263 WERE PROPERLY SERVED THROUGH AFFIXTURE OR OTHERWISE. FUR THER THE LAW DOES NOT REQUIRE THE SERVICE OF NOTICE U/S 263 STRICTLY AS PER THE T ERMS OF SECTION 282 OF THE ACT. THE ONLY REQUIREMENT ENSHRINED IN THE PROVISION IS TO G IVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH HAS BEEN COMPLIED WITH IN ALL S UCH CASES. D. LIMITATION PERIOD FOR PASSING ORDER IS TO BE COUNT ED FROM THE DATE OF PASSING THE ORDER U/S 147 READ WITH SEC. 143(3) AND NOT THE DAT E OF INTIMATION ISSUED U/S 143(1) OF THE ACT, WHICH IS NOT AN ORDER FOR THE PURPOSES OF SECTION 263. IN ALL THE CASES, THE ORDERS HAVE BEEN PASSED WITHIN THE TIME LIMIT. E. THE CIT HAVING JURISDICTION OVER THE AO WHO PASSED ORDER U/S 147 READ WITH SECTION 143(3), HAS THE TERRITORIAL JURISDICTION TO PASS THE ORDER U/S 263 AND NOT OTHER CIT. F. ADDITION IN THE HANDS OF A COMPANY CAN BE MADE U/S 68 IN ITS FIRST YEAR OF INCORPORATION. G. AFTER AMALGAMATION, NO ORDER CAN BE PASSED U/S 263 IN THE NAME OF THE AMALGAMATING COMPANY. BUT, WHERE THE INTENTION OF T HE ASSESSEE IS TO DEFRAUD THE REVENUE BY EITHER FILING RETURNS, AFTER AMALGAMATIO N, IN THE OLD NAME OR OTHERWISE, THEN THE ORDER PASSED IN THE OLD NAME IS VALID. H. ORDER PASSED U/S 263 ON A NON-WORKING DAY DOES NOT BECOME INVALID, WHEN THE PROCEEDINGS INVOLVING THE PARTICIPATION OF THE ASSE SSEE WERE COMPLETED ON AN EARLIER WORKING DAY. ITA NO.1192/KOL/2016 M/S. TWISTEX COMMERCE PVT. LIM ITED-A.Y.2011-12 4 I. ORDER U/S 263 CANNOT BE DECLARED AS A NULLITY FOR THE NOTICE HAVING NOT BEEN SIGNED BY THE CIT, WHEN OPPORTUNITY OF HEARING WAS OTHERWISE GIVEN BY THE CIT. J. REFUSAL BY THE REVENUE TO ACCEPT THE WRITTEN SUBMIS SIONS OF THE ASSESSEE SENT AFTER THE CONCLUSION OF HEARING CANNOT RENDER THE O RDER VOID AB INITIO . AT ANY RATE, IT IS AN IRREGULARITY. K. SEARCH PROCEEDINGS DO NOT DEBAR THE CIT FROM REVI SING ORDER U/S PASSED U/S 147 OF THE ACT. 6. IT IS NOTICED THAT ALL OR SOME OF THE ABOVE CO NCLUSIONS ARE APPLICABLE TO THIS APPEAL ALSO. IN VIEW OF THE FOREGOING DISCUSSION AND FOLLO WING THE VIEW TAKEN IN SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) , WE UPHOLD THE IMPUGNED ORDER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 08.08.201 6. SD/- SD/- [N.V.VASUDEVAN] JUDICIAL MEMBER [P.M.JAGTAP] ACCOUNTANT MEMBER DATED : 08.08.2016. RG.PS COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA . ITA NO.1192/KOL/2016 M/S. TWISTEX COMMERCE PVT. LIM ITED-A.Y.2011-12 5