M/s Arissan Infrastructures Pvt. Ltd., Kolkata V. CIT, KOLKATA-1, Kolkata

ITA 1230/KOL/2014

• Counselvise Citation: 123023514 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 29-05-2014
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 147; 68; 148; 263

Judgement Text

ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES :D : KOLKATA BEFORE SHRI R.S. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA NO.1230/KOL/2014 ASSESSMENT YEAR:2010-11 M/S. ARISSAN INFRASTRUCTURES PVT. LTD., 7, GANESH CHANDRA AVENUE, 1 ST FLOOR, KOLKATA-700013. PAN: AABCR 3444 H VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1271/KOL/2014 ASSESSMENT YEAR 2009-1 0 M/S. LINKMAN COMMOTRADE PVT. LTD. THE KNOWLEDGE HUB, DN- 23, 5 TH FLOOR, SECTOR-V, SALT LAKE, KOLKATA-700091. PAN : AABCL 5411 A VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1587/KOL/2013 ASSESSMENT YEAR 2008-0 9 M/S. OSWAL SERVICES PVT. LTD. 52, WESTON STREET, 5 TH FLOOR, KOLKATA- 700012. PAN : AAACO 2832 K VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1642/KOL/201 3 ASSESSMENT YEAR 2008-0 9 ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 2 M/S. PUSHPANJALI PROJECTS PVT. LTD. 62/1, HRIDAY KRISHNA BANERJEE LANE, HOWRAH-711101. PAN : AAECP 4900 H VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : NONE DEPARTMENT BY : SHRI NIRAJ KUMAR, CIT, DR. DATE OF HEARING : 28.10.2015 DATE OF PRONOUNCEMENT : 30.10.2015 ORDER THROUGH THIS BATCH OF APPEALS, DIFFERENT ASSESSES ASSAIL THE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMIS SIONERS OF INCOME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 196 1 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE ALL THESE APPEALS ARE BASED ON LARGELY SIMILA R FACTS AND COMMON GROUNDS OF APPEAL, WE ARE PROCEEDING TO DISPOSE THE M OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BEFORE TAKING UP THE DISPOSAL OF THE INSTANT AP PEALS ON MERITS, WE CONSIDER IT EXPEDIENT TO RECORD THAT THESE APPEALS HAVE EARLIER COME UP ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 3 FOR HEARING ON SEVERAL OCCASIONS AND THE ASSESSEE H AS SOUGHT ADJOURNMENT ON ONE PRETEXT OR THE OTHER. TODAY, WHE N THESE APPEALS WERE CALLED FOR HEARING, EITHER THERE WAS ADJOURNME NT APPLICATION OR NO APPEARANCE. THE LD. DR STRONGLY OPPOSED TO THE G RANT OF ADJOURNMENTS. WE DO NOT FIND ANY JUSTIFIABLE REASON TO ADJOURN THESE APPEALS ANY FURTHER. WE FIND THAT THE ISSUES RAISED IN THESE APPEALS ARE SQUARELY COVERED AGAINST THE ASSESSEE IN SEVERAL OR DERS PASSED BY THIS BENCH IN NUMEROUS CASES INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . UNDER THESE CIRCUMSTANCES, WE ARE TAKING UP THE APPEALS FOR DISPOSAL ON MERITS EX PARTE QUA THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF ALL THE APPEALS I N THIS BATCH ARE SIMILAR INASMUCH AS RETURNS WERE FILED BY SUCH COMPANIES WI TH MEAGRE INCOME; INTIMATIONS WERE ISSUED U/S 143(1); THEREA FTER NOTICES U/S 148 WERE ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIE S DIVULGING A PALTRY ESCAPEMENT OF INCOME OR OTHERWISE ; ASSESSM ENT ORDERS WERE PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKIN G NOMINAL ADDITIONS AND THE AOS, DURING THE COURSE OF SUCH AS SESSMENT PROCEEDINGS, MADE SOME FORMAL ENQUIRIES ABOUT SHARE S ISSUED BY SUCH ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 4 COMPANIES AT HUGE PREMIUM BY ISSUING NOTICES U/S 13 3(6) TO SOME OF THE SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION. THE JURISDICTIONAL CITS HAVE PASSED ORDERS U/S 263 IN ALL SUCH CASES, WHICH HAVE BEEN ASSAILED BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. 5. IT IS RELEVANT TO MENTION THAT MORE THAN 400 CASES INVOLVING SAME ISSUE WERE FIXED BEFORE US, WHICH HAVE BEEN HEARD. ALL THE LD. ARS WERE GIVEN OPPORTUNITY TO ARGUE THEIR MATTERS TO FU LL EXTENT. SOME OF THE LD. ARS ARGUED THE MATTER ON MERITS AND ALL OTH ER ARS ADMITTED THAT FACTS AND CIRCUMSTANCES OF ALL THE CASES WERE MUTATIS MUTANDIS SIMILAR TO THOSE ARGUED. THEREAFTER, THE REMAINING CASE SPECIFIC ISSUES WERE ARGUED BY ALL THE LD. ARS, PERTAINING TO THEIR RESPECTIVE CASES. WE HAVE PASSED A SEPARATE LEAD ORDER IN THE CASE OF M/S SUBHLAKSHMI VANIJYA PVT. LTD., VS. CIT (ITA NO. 1104/KOL/2014 A .Y. 2009-10) ALSO COVERING OTHER EIGHTEEN CASES DEALING WITH ALL THE ISSUES RAISED BEFORE US IN MORE THAN 400 APPEALS. FOLLOWING CONC LUSIONS HAVE BEEN DRAWN IN THE LEAD ORDER : - ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 5 A. CONTENTION OF THE ASSESSEE THAT SINCE THE AO OF TH E ASSESSEE- COMPANY WAS NOT EMPOWERED TO EXAMINE OR MAKE ANY AD DITION ON ACCOUNT OF RECEIPT OF SHARE CAPITAL WITH OR WITH OUT 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 UNSUSTAINABLE. B. FAILURE OF THE AO TO GIVE A LOGICAL CONCLUSION TO THE ENQUIRY CONDUCTED BY HIM GIVES POWER TO THE CIT TO REVISE S UCH ASSESSMENT ORDER, BY HOLDING THAT :- I) THE ENQUIRY CONDUCTED BY THE AO IN SUCH CASES C ANT BE CONSTRUED AS A PROPER ENQUIRY; II) CIT U/S 263 CAN SET ASIDE THE ASSESSMENT ORDER AND DIRECT THE AO TO CONDUCT A THOROUGH ENQUIRY, NOTWITHSTANDING THE JURISDICTION OF THE AO IN MAKIN G ENQUIRIES ON THE ISSUES OR MATTERS AS HE CONSIDERS FIT IN TERMS OF SECTION 142(1) AND 143(2) OF THE ACT, WHIC H IS RELEVANT 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 EMPOWERED TO REVISE THE ASSESSMENT ORDER ; IV) THE ORDER OF THE CIT IS NOT BASED ON IRRELEVANT CONSIDERATIONS AND FURTHER IN THE PRESENT CIRCUMSTA NCES, HE WAS NOT OBLIGED TO POSITIVELY INDICATE THE DEFICIEN CIES IN THE ASSESSMENT ORDER ON MERITS ON THE QUESTION OF I SSUE 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 PREMISE THAT THE AO DID NOT MAKE ENQUIRY THE REBY RENDERING THE ASSESSMENT ORDER ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF THE REVENUE ON THAT SCORE ITSELF . ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 6 C. IN THE GIVEN FACTS AND CIRCUMSTANCES OF ALL SUCH CASES, THE NOTICES U/S 263 WERE PROPERLY SERVED THROUGH AFFIX TURE OR OTHERWISE. FURTHER THE LAW DOES NOT REQUIRE THE SER VICE OF NOTICE U/S 263 STRICTLY AS PER THE TERMS 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 B EEN COMPLIED WITH IN ALL SUCH 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. 14 3(3) AND NOT THE DATE OF INTIMATION ISSUED U/S 143(1) OF THE ACT , WHICH IS NOT AN ORDER FOR THE PURPOSES OF SECTION 263. IN ALL T HE 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 TERRITORI AL 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 IN TENTION OF THE ASSESSEE IS TO DEFRAUD THE REVENUE BY EITHER FI LING RETURNS, AFTER AMALGAMATION, IN THE OLD NAME OR OTHERWISE, T HEN 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 PARTICI PATION OF THE ASSESSEE WERE COMPLETED ON AN EARLIER WORKING DAY. 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 C ANNOT RENDER THE ORDER VOID AB INITIO . AT ANY RATE, IT IS AN IRREGULARITY. ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 7 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 DRAWN ARE APPLICABLE TO THE APPEALS IN THIS BATCH. FOLLOWING THE VIEW TAKEN IN THE LEAD ORDERS, WE UPHOLD ALL THE IMPUGNED ORDERS. 7. IN THE RESULT ALL THE APPEALS ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.2 015. SD/- SD/- [R.S. SYAL] [N.V. VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, OCTOBER, 2015. RG COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT TRUE COPY, BY ORDER, AR, ITAT, KOLKATA. ITA NO.1230, 1271/KOL/14 & 1587, 1642/KOL/13 8