M/s Giriraj Infotech (P) Ltd., Raipur V. Pr. CIT-4, Kolkata, Kolkata

ITA 1890/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1030 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 28-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GOULEAN HANGSHING
• Keywords: Revision of order; Period of limitation; Time period of passing order; Condonation of delay
• Section: 143(3); 142(1); 147; 68; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI J.SU DHAKAR REDDY, AM ] I.T.A NO.1890/KOL/201 6 ASSESSMENT YEAR : 2011-1 2 M/S. GIRI RAJ INFOTECH (P)LTD. -VS- PR.C.I.T.-4, KOLKATA KOLKATA [PAN : AADCV 4834 D] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI GOULEAN HANGSHING, CIT, DR DATE OF HEARING : 14.09.2017. DATE OF PRONOUNCEMENT : 10.11.2017. ORDER PER J.SUDHAKAR REDDY, AM THROUGH THIS APPEAL, THE ASSESSEE ASSAILS THE CORRE CTNESS OF SEPARATE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) RELATING TO A.Y .2011-12. 2. THERE IS A DELAY OF ONE DAY IN FILING THE APPEAL BY THE ASSESSEE. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY THROUGH AN AFFIDAVIT STATING THE REASONS FOR DELAY OF ONE DAY IN FILING THE APPEAL. AFTER GOING THROUG H THE AFFIDAVIT WE FIND THAT THERE IS SUFFICIENT CAUSE FOR THE DELAY IN FILLING THE APPEA L BY THE ASSESSEE. HENCE WE CONDONE THE DELAY. 3. WHEN THIS APPEAL WAS CALLED UP FOR HEARING, NEITHER THERE WAS ANY ADJOURNMENT APPLICATION NOR ANY BODY PUT IN APPEARANCE AT ALL. WE ALSO FIND THAT THE ISSUES RAISED IN THIS APPEAL IS SQUARELY COVERED AGAINST THE ASSESSE E BY SEVERAL ORDERS PASSED BY THIS BENCH INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . UNDER THESE 2 ITA NO.1890/KOL/2016 M/S. GIRI RAJ INFOTECH (P) LTD. A.YR.2011-12 2 CIRCUMSTANCES, WE ARE TAKING UP THIS APPEAL FOR DIS POSAL ON MERITS EX PARTE QUA THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF THE CASE IN THIS APPEAL ARE SIMILAR INASMUCH AS RETURN WAS FILED BY SUCH COMPANIES WITH MEAGRE INCOME; INTIMA TIONS WERE 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 ; ASSESSM ENT ORDER WAS PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKING NOMINAL ADDITION S AND THE AOS, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDINGS, MADE SOME FORMAL ENQUI RIES ABOUT SHARES ISSUED BY SUCH COMPANIES AT HUGE PREMIUM BY ISSUING NOTICE U/S 133 (6) TO SOME OF THE SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGA TION. THE JURISDICTIONAL CIT HAS PASSED ORDER U/S 263 IN THIS APPEAL, WHICH HAS BEEN ASSAIL ED BEFORE THE TRIBUNAL. 4. WE HAVE PERUSED THE RELEVANT MATERIAL ON REC ORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISPOSED OF MORE THAN 500 CASES INVOLVING SAME ISSUE THROUGH CERTAIN 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. 5. WE FIND AS HAS ALSO BEEN ADMITTED BY THE LD. DR THAT FACTS AND CIRCUMSTANCES OF THE CASE 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 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 ASSESSMEN T ORDER, BY HOLDING THAT :- I) THE ENQUIRY CONDUCTED BY THE AO IN SUCH CASES CA NT BE CONSTRUED AS A PROPER ENQUIRY; 3 ITA NO.1890/KOL/2016 M/S. GIRI RAJ INFOTECH (P) LTD. A.YR.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 PREMISE THAT THE AO DID NOT MAKE ENQUIRY THEREBY RENDERING THE ASSES SMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE 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 OTHERWIS E. FURTHER THE LAW DOES NOT REQUIRE THE SERVICE OF NOTICE U/S 263 STRICTLY AS P ER THE TERMS OF SECTION 282 OF THE ACT. THE ONLY REQUIREMENT ENSHRINED IN THE PROVISIO N IS TO GIVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH HAS BEEN COMPLIED WI TH 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. 143(3) AND NOT THE DATE OF INTIMATION ISSUED U/S 143(1) OF THE ACT, WHICH IS NOT AN ORDER FOR THE PU RPOSES OF SECTION 263. IN ALL THE CASES, THE ORDERS HAVE BEEN PASSED WITHIN THE T IME 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 ANDNOT 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 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 CANNOT RENDER THE O RDER VOID AB INITIO . AT ANY RATE, IT IS AN IRREGULARITY. 4 ITA NO.1890/KOL/2016 M/S. GIRI RAJ INFOTECH (P) LTD. A.YR.2011-12 4 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. IN VIEW OF THE FOREGOING DISCUSSION AND FOLLOWING T HE VIEW TAKEN IN SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) , WE UPHOLD THE IMPUGNED ORDER. 7. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10 TH NOVEMBER, 2017. SD/- SD/- [N.V.VASUDEVAN] [ J.SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10.11.2017. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. GIRI RAJ INFOTECH (P)LTD., C/O BALAJEE COMME RCIAL COMPANY, NEAR MANGLAM HOTEL, BAJRANG NAGAR, AGRASEN CHOWK, RAIPUR (C.G.)- 492001.. 2. PR. C.I.T-4, KOLKATA. 3..CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SR. PRI VATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT KOLKATA BENCHES 5 ITA NO.1890/KOL/2016 M/S. GIRI RAJ INFOTECH (P) LTD. A.YR.2011-12 5