M/s Axix Vyapaar Pvt Ltd, Kolkata V. C.I.T Kolkata - III, Kolkata

ITA 1610/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99951 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2013
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: SUJAY SEN
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 147; 148; 263

Judgement Text

ITA NO.1610, 1490 & 1471/KOL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES :D : KOLKATA BEFORE SHRI R.S. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA NO.1610/KOL/20 13 ASSESSMENT YEAR 2008-0 9 M/S. AXIS VYAPAAR PVT. LTD., 45, RAFI AHMED KIDWAI ROAD, KOLKATA-700016. PAN : AAGCA 8800 K VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1490/KOL/2013 ASSESSMENT YEAR:2008-09 M/S.INDIGO DEALERS PVT.LTD., C/O.SALARPURIA JAJODIA & CO., 7, C.R.AVENUE, KOLKATA-72. PAN: AABCG 8424-L VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1471/KOL/2013 ASSESSMENT YEAR 2008-0 9 M/S.PREET TIE UP PVT.LTD., C/O.SALARPURIA JAJODIA & CO., 7, C.R.AVENUE, KOLKATA-72. PAN: AAECP 3876C VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : MR.SUJAY SEN, ADVOCATE DEPARTMENT BY : SHRI NIRAJ KUMAR, CIT, DR. ITA NO.1610, 1490 & 1471/KOL/2013 2 DATE OF HEARING : 28.10.2015 DATE OF PRONOUNCEMENT : 30.10.2015 ORDER PER BENCH: THROUGH THIS BATCH OF APPEALS, DIFFERENT ASSESSEES 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. BRIEFLY STATED THE FACTS OF ALL THE CASES IN 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.1610, 1490 & 1471/KOL/2013 3 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. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISPOSED OF MORE THAN 400 CASES INVOLVING SAME ISSUE THROUGH CE RTAIN ORDERS WITH THE MAIN ORDER HAVING BEEN PASSED IN A GROUP OF CAS ES LED BY SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (ITA NO.1104 /KOL/2014) DATED 30.7.2015 FOR THE A.Y. 2009-10. 4. BOTH THE SIDES HAVE FAIRLY ADMITTED THAT FACT S AND CIRCUMSTANCES OF THE CASES UNDER CONSIDERATION ARE MUTATIS MUTANDIS SIMILAR TO THOSE DECIDED EARLIER. IN OUR AFORESAID ORDER IN SUBHLAKS HMI 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 ACCOUNT OF RECEIPT OF SHARE CA PITAL WITH OR WITHOUT PREMIUM BEFORE AMENDMENT TO SECTION ITA NO.1610, 1490 & 1471/KOL/2013 4 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 CO ULD 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 SUCH ASSESSMENT ORDER, BY HOLDING THAT :- I) THE ENQUIRY CONDUCTED BY THE AO IN SUCH CASES CANT 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 MAKING ENQUIRIES ON THE ISSUES OR MATTERS AS HE CONSIDERS FIT IN TERMS OF SECTION 142(1) AND 143(2) OF THE ACT, WHICH 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 CIRCUMSTANCES, HE WAS NOT OBLIGED 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 PREMISE THAT THE AO DID NOT MAKE ENQUIRY THEREBY RENDERING THE ASSESSMENT ITA NO.1610, 1490 & 1471/KOL/2013 5 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 TH ROUGH AFFIXTURE OR OTHERWISE. FURTHER THE LAW DOES NOT RE QUIRE THE SERVICE OF NOTICE U/S 263 STRICTLY AS PER THE T ERMS OF SECTION 282 OF THE ACT. THE ONLY REQUIREMENT ENSHRI NED IN THE PROVISION IS TO GIVE AN OPPORTUNITY OF HEARI NG 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 WIT H SEC. 143(3) AND NOT THE DATE OF INTIMATION ISSUED U/S 14 3(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 TER RITORIAL JURISDICTION TO PASS THE ORDER U/S 263 ANDNOT OTHE R 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 THE ASSESSEE IS TO DEFRAUD THE REV ENUE BY EITHER FILING RETURNS, AFTER AMALGAMATION, IN THE O LD 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 ITA NO.1610, 1490 & 1471/KOL/2013 6 PARTICIPATION 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 C IT. J. REFUSAL BY THE REVENUE TO ACCEPT THE WRITTEN SUBMISSIONS OF THE ASSESSEE SENT AFTER THE CONCLUSI ON OF HEARING CANNOT RENDER THE ORDER VOID AB INITIO . AT ANY RATE, IT IS AN IRREGULARITY. K. SEARCH PROCEEDINGS DO NOT DEBAR THE CIT FROM REVISING ORDER U/S PASSED U/S 147 OF THE ACT. 5. 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 TH E IMPUGNED ORDERS. 6. IN THE RESULT ALL THE APPEALS ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.20 15. SD/- SD/- [R.S. SYAL] [N.V. VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30 TH OCTOBER, 2015. RG ITA NO.1610, 1490 & 1471/KOL/2013 7 COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES