Fulfil Vinimay Pvt Ltd, Kolkata V. C.I.T Kolkata - I, Kolkata

ITA 1665/KOL/2013

• Counselvise Citation: 166523514 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2013
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 133(6); 147; 68; 148; 263

Judgement Text

ITA NO. 1665/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.1665/KOL/2013 ASSESSMENT YEAR : 2009-10 FULFIL VINIMAY PVT. LTD. 21/3, JATINDRA MOHAN AVENUE, GROUND FLOOR, KOLKATA 700006. PAN : AABCF 0509 K VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI NIRAJ KUMAR, CIT, DR. DATE OF HEARING : 28.10.2015 DATE OF PRONOUNCEMENT : 30.10.2015 ORDER PER BENCH THROUGH THIS APPEAL, THE ASSESSES ASSAILS THE CORRE CTNESS OF SEPARATE ORDERS PASSED BY THE COMMISSIONERS OF INCO ME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO C ALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEAR. ITA NO. 1665/KOL/13 2 2. BEFORE TAKING UP THE DISPOSAL OF THE INSTANT AP PEAL ON MERITS, WE CONSIDER IT EXPEDIENT TO RECORD THAT THESE APPEALS HAVE EARLIER COME UP 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, NONE APPEARED FOR THE ASSE SSEE. THE LD. DR STRONGLY OPPOSED TO THE GRANT OF ADJOURNMENTS. WE D O NOT FIND ANY JUSTIFIABLE REASON TO ADJOURN THIS APPEAL ANY FURTH ER. WE FIND THAT THE ISSUES RAISED IN THIS APPEAL IS SQUARELY COVERED AG AINST THE ASSESSEE IN SEVERAL ORDERS PASSED BY THIS BENCH IN NUMEROUS CAS ES INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . UNDER THESE CIRCUMSTANCES, WE ARE TAKING UP THE APPEAL FOR DISP OSAL ON MERITS EX PARTE QUA THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF THE APPEAL IS SIM ILAR IN AS MUCH AS RETURNS WERE FILED BY COMPANIES WITH MEAGRE INCOME; INTIMATIONS WERE ISSUED U/S 143(1); THEREAFTER NOTICES U/S 148 WERE ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIES DIVULGING A PALTRY E SCAPEMENT OF INCOME OR OTHERWISE ; ASSESSMENT ORDERS WERE PASSE D U/S 143(3) READ WITH SECTION 147 AFTER MAKING NOMINAL ADDITIONS AND THE AOS, DURING ITA NO. 1665/KOL/13 3 THE COURSE OF SUCH ASSESSMENT PROCEEDINGS, MADE SOM E FORMAL ENQUIRIES ABOUT SHARES ISSUED BY SUCH COMPANIES AT HUGE PREMIUM BY ISSUING NOTICES U/S 133(6) TO SOME OF THE SHAREHOLD ERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION. THE JU RISDICTIONAL CIT HAS 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 ITA NO. 1665/KOL/13 4 BEFORE US IN MORE THAN 400 APPEALS. FOLLOWING CONC LUSIONS HAVE BEEN DRAWN IN THE LEAD ORDER : - 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 ITA NO. 1665/KOL/13 5 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 . 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. ITA NO. 1665/KOL/13 6 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. 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 THIS APPEAL ALSO. FOLLOWING THE VIEW TAKEN IN THE LEAD ORDERS, WE UPHOLD ALL THE IMPUGNED ORDERS. 7. IN THE RESULT THE APPEAL IS 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, 30 TH OCTOBER, 2015. RG COPY FORWARDED TO: APPELLANT . RESPONDENT CIT . CIT (A) DR, ITAT TRUE COPY, BY ORDER, AR, ITAT, KOLKATA. ITA NO. 1665/KOL/13 7