M/s. General Polytex Pvt. Ltd., , Surat V. ITO, Ward - 1(1), Kolkata

ITA 2211/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5057 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-09-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 22-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RADEHY SHYAM
• Keywords: Opportunity of being heard; Source of fund; Assessment record; Set aside
• Section: 143(3); 14A; 133(6); 143(1); 147; 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2211 / KOL / 2018 ASSESSMENT YEAR :2008-09 M/S GENERAL POLYTEX PVT. LTD., A-WING, 6 TH FLOOR, INTERNATIONAL COMMERCE CENTRE (ICC), NEAR KADIWALA SCHOOL, RING ROAD, SURAT-395002 [ PAN NO.SSVVB 5335 L ] V/S . INCOME TAX OFFICER, WARD-1(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE,KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI RADEHY SHYAM, CIT-DR /DATE OF HEARING 09-09-2019 /DATE OF PRONOUNCEMENT 22-11-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE PRINCIPAL COMMISSIONER OF INCOME TAX (APPEALS)-1, K OLKATAS ORDER DATED 28.03.2018 PASSED IN CASE M.NO.PR.CIT-1/KOL/REVISIO N U/S263/2017- 18/14797-14800, INVOLVING PROCEEDINGS U/S 263 OF TH E INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BEHES T. THE REGISTRY HAS ALREADY ISSUED RPAD NOTICE DATED 20.08.2019 FOR TODAYS (09.09.2019) HEARING. WE THEREFORE PROCEED EX PARTE AGAINST THE ASSESSEE TO DECIDE THE INSTANT APPEAL ON MERITS. 2. CASE FILE SUGGESTS THAT THE ASSESSING OFFICER HA D FRAMED ASSESSMENT / RE-ASSESSMENT IN ASSESSEES CASE IN ISSUE DATED 28. 01.2016 INVOKING SEC. ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 2 14A R.W.S. 8D DISALLOWANCE RELATING TO ASSESSEES E XEMPT INCOME AND OTHER EXPENDITURE HEAD(S). THE CIT THEN SOUGHT TO INVOKE HIS REVISIONAL JURISDICTION U/S 263 OF THE ACT ON THE GROUND THAT THE IMPUGNED ASSESSMENT WAS ERRONEOUS CAUSING PREJUDICE TO INTEREST OF THE REVE NUE SINCE THE ASSESSING OFFICER HAD FAILED TO CONDUCT THE DUE ENQUIRIES REG ARDING THE ASSESSEES SHARE CAPITAL / PREMIUM OF 11,39,32,000/-. THE ASSESSEE FILED ITS REPLY DATED 223.03.2018 CONTESTING THE SAID PROPOSAL THAT THE A SSESSING OFFICER HAD RIGHTLY NOT DISALLOWED / ADDED ITS SHARE CAPITAL / PREMIUM AND THE ASSESSMENT WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERE ST OF REVENUE. THE PCITS ORDER UNDER CHALLENGE HAS REJECTED THE ASSESSEES D ETAILED EXPLANATION AS UNDER:- 2. ON PERUSAL OF THE ASSESSMENT RECORD OF THE ASSE SSEE IT IS OBSERVED AS UNDER:- FROM THE BALANCE SHEET FOR THE YEAR AS ON 31.03.20 08, THE ASSESSEE COMPANY HAD SHOWN RS.11,39,32,000/- AS INVESTMENTS. A BREAK-UP OF THIS INVESTMENT WAS ALSO GIVEN UNDER SCHEDULE-3 OF THE B ALANCE SHEET. IT IS OBSERVED THAT ALTHOUGH SHARES OF HUGE AMOUNTS WERE PURCHASED AND SOLD DURING THE RELEVANT PREVIOUS YEAR THE NET BALANCE A MOUNT REMAINED ALMOST SAME I.E. RS.11,339,32,000/- AS AT 31.03.2008 AND R S.11,39,32,000/- AS AT 31.03.2007. SINCE THE NET INVESTMENT FIGURE DID NOT CHANGE, NO NOTICE U/S. 133(6) WAS ISSUED TO ANY PARTY TO VERIFY THE TRANSA CTIONS. IT IS ALSO OBSERVED THAT NO DETAILS OF INCOME / LOSS DERIVED FROM THESE TRANSACTIONS WERE GIVEN BY THE ASSESSEE COMPANY. MOREOVER, DESPITE THE FACT TH AT SHARES AMOUNTING MORE THAN RS.10 CRORES WERE SOLD DURING THE YEAR, N O PROFIT/LOSS HAD BEEN SHOWN IN P/L ACCOUNT FOR THE YEAR ENDED 31.03.2008 BY THE ASSESSEE COMPANY. HENCE, THE HUGE QUANTUM OF TRANSACTION REM AINED UNVERIFIED. 3. JURISDICTIONAL PRINCIPAL COMMISSIONER OF INCOME TAX WAS SATISFIED THAT IT WAS A CASE OF ERRONEOUS ASSESSMENT IN SO FAR AS IT WAS PR EJUDICIAL TO THE INTERESTS OF THE REVENUE AND, THEREFORE, HE ISSUE SHOW CAUSE NOTICES U/S.263 OF THE ACT VIDE THIS OFFICE LETTERS . . , -1 , /U/S263/2017-18/12109 :02.02.2018 THE ASSESSEE WAS REQUESTED TO SHOW CAUSE AS TO WHY THE PROVISIONS OF SECTION-263 OF THE ACT SHOULD NOT BE INVOKED IN THIS CASE AND T HE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER SHOULD NOT BE REVISED/MODIFIED OR SET-ASIDE. THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD. 4. IN RESPONSE TO THE SAID NOTICE, SHRI PURVESH CHO WDHURI, A/R OF THE ASSESSEE ATTENDED AND FILED WRITTEN SUBMISSIONS ON 23.03.201 8 WHICH IS AS FOLLOWS:- WE HAVE RECEIVED YOUR NOTICE DATED: 02.02.2018 AT OUR PRESENTLY REGISTERED OFFICE (SURAT, GUJARAT) ON 13.03.2018. IN CONNECTIO N WITH THE ABOVE MENTIONED SUBJECT MATTER. IN RESPONSE TO THAT WE HAVE FILED A N ADJOURNMENT APPLICATION THROUGH MAIL ON THE SAME DAY AND ASK TO POSTPONE HE ARING TO 23.03.2018. THE NAME OF THE COMPANY M/S BAMBASUKSI TRADELINKS P RIVATE LIMITED HAS BEEN CHANGED TO M/S GENERAL POLYTEX PRIVATE LIMITED AND PRESENT REGISTERED ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 3 OFFICE OF THE COMPANY IS A-WING., M 601,602, INTERN ATIONAL COMMERCE CENTRE (ICC) NEAR KADIWALA SCHOOL, RING ROAD, SURAT-395002 . TODAY WE ARE SUBMITTING FOLLOWING EXPLANATIONS AND DETAILS IN CO NNECTION WITH THE REVISION OF ASSESSMENT ORDER PASSED U/S. 143(10 OR 147 OF THE A CT FOR AY 2008-09 AND WE HAVE DULY APPOINTED CA PURVESH CHOKSI AS OUR AUT HORIZED REPRESENTATIVE. HONOURABLE PCIT-1 SIR HAS RAISED AN OBJECTION AND S AID THAT THE IMPUGNED ASSESSMENT ORDER PASSED U/S. 143(3) OR 147 OF THE I NCOME TAX ACT, 1961 IS PRIMA FACIE ERRONEOUS IN SO FAR AS IT IS PREJUDICIA L TO THE INTEREST OF THE REVENUE. THE REASON BEING THAT THE ASSESSEE HAS PUR CHASED & SOLD SHARES AMOUNTING TO RS.11,39,32,000/- DURING THE YEAR. AS NET AMOUNT OF INVESTMENTS AS ON CLOSE OF THE YEAR 31.03.2007 AND 31.03.2008 REMAINS SAME, NO NOTICES WERE ISSUED U/S. 133(6) OF THE IN COME TAX ACT, 1961 TO VERIFY THE TRANSACTIONS AND NO PROFIT/LOSS HAD BEEN SHOWN IN RETURN OF INCOME FOR THAT YEAR. FURTHER, HONOURABLE PCIT-I SIR HAS A LSO ARGUED FOR RUNNING OF SUCH A HUGE BUSINESS FROM VERY SMALL AND SINGLE PRE MISES AT ROOM NO.916, 33 C.R. AVENUE, KOLKATA. IN THIS CONNECTION WE WOULD LIKE TO STATE THAT OUR CASE HAS BEEN ALREADY ASSESSED US/S 143(1) OF THE INCOME TAX ACT, 1961 AN D RE-ASSESSMENT OF THE SAME WAS ALSO MADE ON SPECIFIC ISSUE RELATED TO INV ESTMENTS VIDE ORDER DATED 28.01.2016. SO WE WOULD LIKE TO REQUEST THAT AS THE ISSUE RELATED TO INVESTMENTS HAVE BEEN ALREADY ASSESSED BY ISSUES UN DER ASSESSMENT AND REVISION OF THE SAME. FURTHER, WE HAVE DULY SUBMITT ED BANK STATEMENTS AND PRODUCED BOOKS OF ACCOUNT AT THE TIME OF RE-ASSESSM ENT AS WELL AS ORIGINAL ASSESSMENT. SO WE KINDLY REQUEST YOUR GOODSELF TO A CCEPT THIS POINT IN POSITIVE MANNER AN ABORT THE REVISION PROCEEDINGS. YOUR GOODSELF HAS ALSO NOTED THAT THERE IS SALE AND PURCHASE OF SHARES AMOUNTING TO RS.11,39,32,000/- BUT IN ACTUAL THERE IS ONLY RS.8,25,70,000/- THAT WERE SOLD AND PURCHASED IN THAT YEAR. BESIDE T HE ISSUE RELATED TO INVESTMENT IN SHARES OF RECENT SUPPLIERS PVT. LTD. AMOUNTING TO RS.1,40,00,000/- HAS BEEN ALREADY ASSESSED UNDER RE -ASSESSMENT U/S.147 OF THE ACT. SO WE KINDLY REQUEST YOUR GOODSELF TO ACCE PT THIS POINT IN POSITIVE MANNER AND ABORT THE REVISION PROCEEDINGS. YOUR GOODSELF HAS ALSO NOTED THAT NO INCOME FROM SA LE AND PURCHASE OF SHARES HAVES BEEN OFFERED TO TAX. IN THIS CONNECTIO N WE WOULD LIKE TO STATE THAT THE INVESTMENTS HAVE BEEN SOLD AT COST AND HEN CE THERE WERE NO GAIN FROM THE SALE OF SHARES. AS THERE IS NO GAIN FROM T HE SALE OF SHARES NO DETAILED TRANSACTIONS HAVE BEEN REPORTED IN RETURN OF INCOME AND THAT IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE. SO WE K INDLY REQUEST YOUR GOODSELF TO ACCEPT THIS POINT IN POSITIVE MANNER AND ABORT T HE REVISION PROCEEDINGS. YOUR GOODSELF HAS ALSO ASKED THAT THE SAID TRANSACT IONS HAVE BEEN CARRIED OUT FORM VERY SMALL PREMISES AT THE ADDRESSED MENTIONED IN THE ADDRESS. HERE, WE WOULD LIKE TO STATE THAT THE COMPANY WAS IN THE BUSINESS OF SALE AND PURCHASE OF SHARES OR RATHER INVESTMENTS IN SHARES AND SECURITIES. SO BASICALLY WE DID NOT REQUIRE MUCH SPACE OR HUGE MAN POWER FOR CARRYING OUT OUR TRANSACTIONS. THE SAME COULD BE CARRIED OUT FRO M ELECTRONIC DEVICES ALSO. FURTHER, THERE SHOULD NOT BE ANY LIMITATION OR LAW ON AREA OF PLACE OF BUSINESS AND THERE MAPPING WITH VOLUME OF TRANSACTIONS. SO W E KINDLY REQUEST YOUR GOODSELF TO ACCEPT THIS POINT IN POSITIVE MANNER AN D ABORT THE REVISION PROCEEDINGS. ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 4 FURTHER, THE SOURCE OF THE FUNDS HAVE CLEARLY VISIB LE FROM THE BANK STATEMENTS THAT THE AMOUNT HAS BEEN RECEIVED FROM THE SALE OF EQUITY SHARES HELD IN THE PRESENT COMPANIES AND FRESH INVESTMENTS HAVE BEEN M ADE IN EQUITY SHARES OF NEW COMPANIES. BESIDES IN RE-ASSESSMENT PROCEEDI NGS THE COMPLETE DETAILS RELATED TO INVESTMENT, SOURCE OF FUNDS AND OTHER DOCUMENTATION HAVE BEEN VERIFIED IN PROPER. AT PRESENT WE HAVE VERY SH ORT PERIOD OF TIME FOR GATHERING THE 10 YEARS OLD AGE DATA AND SUBMITTING THE SAME WITH YOU AGAIN. ALL THE DOCUMENTS HAVE BEEN ALREADY SUBMITTED WITH RESPECTIVE ASSESSING OFFICER AT THE TIME OF ORIGINAL AM U/S. 143(1) OF T HE INCOME TAX ACT, 1961. IN ADDITION, WE ARE SUBMITTING HEREWITH ORIGINAL CO PY OF ADJOURNMENT LETTER FILED WITH YOUR OFFICE VIA E-MAIL ON 13.03.2018. WE ARE ALSO SUBMITTING COPY OF RETURN OF INCOME, COPY OF AUDIT REPORT, COMPLETE SE T OF BANK STATEMENT 2007- 08 AND COPY ORDER U/S.147 OF THE INCOME TAX ACT, 19 61. 5. I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBM ISSION OF ASSESSEE. THE ASSESSEE WAS EARLIER DEALING IN SHARES AND WAS STYL ED M/S BAMBASUKI TRDELINK PVT. LTD. THE MATTER IN HAND PERTAIN TO AY 2008-09 WHICH WAS DISPOSED U/S 143(3)/147 ON 28.01.2016. THE BALANCE SHEET AS ON 31.03.2007 AND 31.03.2008 SHOWED IDENTICAL INVESTMENT OF RS11,39,32,200/- DESPITE ASSESSEE SEL LING SHARES OF ALMOST ALL THE COMPANIES AND PURCHASING NEW SHARES AS INVESTMENT. FURTHERMORE NO PROFIT OR LOSS WAS SHOWN IN THE P&*L ACCOUNT FOR THE YEAR ENDING A S ON 31.03.2008. AN EXPLANATION, THE ASSESSEE SUBMITS THAT THE SALE AND PURCHASE OF SHARE WAS NOT RS.11,39,32,200/- BUT RS.8,25,70,00/- AS EVIDENT FR OM BANK STATEMENTS AND AUDITORS REPORT. A MENTION HAS BEEN MADE IN THE CASE OF RECE NT SUPPLIERS PVT. LTD. WHEREIN RS.1,40,00,000;- HAS ALREADY BEEN REASSESSED U/S. 1 47. NO DOCUMENTS IN SUPPORT HAVE BEEN GIVEN. IT WAS FURTHER STATED THEE INVESTM ENTS WERE SOLD AT COST AND SO THERE WERE NO INCOME WHICH AROSE AS A RESULT OF WHI CH DETAILS OF TRANSACTION WERE NOT REPORTED IN ITR. BE THAT AS IT MAY, IT IS EVIDENT THAT THE AO, DESPI TE INITIATING PROCEEDINGS U/S. 147, DID NOT MAKE ANY ENQUIRY AS SHOULD HAVE BEEN CONDUCTED CONSIDERING THE FACTS AND MATERIAL BEFORE HIM. NO DOCUMENTARY EVIDENCE REQUIR ING SOURCE OF FUND, BANK STATEMENTS CONTAINING DETAILS OF ALL THE SHARES PUR CHASED AND SOLD DURING THE YEAR WERE FOUND IN RECORD. THE EXPLANATION THAT THE DETA ILS OF TRANSACTIONS WERE NOT SHOWN IN ITR AS NO INCOME/LOSS EARNED ALSO HAVE NO CREDEN CE. THE REASSESSMENT WAS DONE WITHOUT EXAMINING THE GENUINENESS, CREDITWORTH INESS AND IDENTITY OF THE COMPANIES, WHO ARE APPARENTLY REGISTERED AT SAME AD DRESS SCHEDULE-3 OF THE ITR IS ALSO NOT EVEN STAMPED BY THE CA. THUS, THERE IS CLE AR NON-APPLICATION OF MIND ON PART OF A.O. WHO HAS JUST ACCEPTED THE CLAIMS OF TH E ASSESSEE WHICH HAS RESULTED IN AN ERRONEOUS ASSESSMENT CAUSING PREJUDICE TO REVENU E. 6. HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISE VS. ADDL. CIT REPORTED IN 99 ITR 375, 386 (DEL) HAS HELD THAT THE CIT MAY CONSIDER THE ORDER OF THE ASSESSING OFFICER TO BE ERRONEOUS NOT ONLY IF IT CO NTAIN SOME APPARENT ERROR OF REASONING OR OF LAW OR OF FACT ON THE FACT OF IT BU T ALSO BECAUSE THE ASSESSING OFFICER HAS FAILED TO MAKE ENQUIRIES WHICH ARE CALLED FOR I N THE CIRCUMSTANCES O THE CASE AND IT IS AN ORDER WHICH SIMPLY ACCEPTED WHAT THE ASSES SEE HAS STATED IN HIS RETURN OF INCOME ON THE SAID ISSUE. IT IS NOT NECESSARY FOR T HE CIT TO MAKE FURTHER ENQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER. THE COMMISS IONER CAN REGARD THE ORDER ERRONEOUS ON THE GROUND THAT THE ASSESSING OFFICER SHOULD HAVE MADE FURTHER ENQUIRIES. 7. HON'BLE KARNATAKA HIGH COURT IN THE CASE OF THAL IBAI F JAIN VS. ITO 101 ITR 1, 6 (KARN) HAS HELD THAT WHERE NO ENQUIRIRES MADE BY TH E ASSESSING OFFICER ON THE RELEVANT ISSUE, ASSESSMENT MUST BE HELD TO BE PREJU DICIAL TO THE INTERESTS OF THE ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 5 REVENUE AND WHAT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE MUST BE HELD TO BE ERRONEOUS THOUGH THE CONVERSE MAY NOT ALWAYS BE TRU E. 8. HON'BLE SUPREME COURT IN THE CASE OF MALABAR IN DUSTRIAL CO. PVT. LTD. VS. CIT REPORTED IN (2000) 243 ITR 83, 87-88 (SC) AFFIRMING THE HON'BLE KERALA HIGH COURT DECISION (198 ITR 611) HAS HELD THAT THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REVENUE IS OF WIDE IMPORT AND IS NOT CONFINED TO ONLY LOS S OF TAXES. IF THE AO HAS ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT ANY ENQU IRIES THEN SUCH ASSESSMENT ORDER PASSED BY THE AO WAS HELD TO BE ERRONEOUS. 9. IN THIS REGARD IT IS MENTIONED THAT MERE NON ENQ UIRY WOULD ALSO RENDER A PARTICULAR ORDER PASSED BY LOWER AUTHORITY AS ERRONEOUS AND PR EJUDICIAL TO THE INTERESTS OF REVENUE. THIS POSITION HAS BEEN CLEARLY CONFIRMED B Y HON'BLE SUPREME COURT IN THE CASE OF RAMPYARI DEVI SARAOGI VS. CIT [1968] 67 IT R 84 & SMT. TARA DEVI AGGARWAL VS. CIT [1973] 88 ITR 323 (SC). THE REASONING FOR T HIS PROPOSITION HAS BEEN EXPLAINED BY HON'BLE DELHI HIGH COURT IN THE CASE O F GEE VEE ENTERPRISE VS. ADDL. CIT [1975] 99 ITR 375 IN THE FOLLOWING PARA:- IT IS NOT NECESSARY FOR THE COMMISSIONER TO MAKE F URTHER INQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER OF THE INCOME-TAX O FFICER. THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON T HE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE THE INCOME-TAX OFFICER SH OULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY T HE ASSESSEE IN HIS RETURN. THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFERENT FROM THAT OF CIVIL COURT. THE STATEM ENTS MADE IN THE PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADO PTED BY A CIVIL COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT SIMPLY GIVES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COME BEFORE IT. THE INCOME-TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT A LSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERT AIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE ASSESSEE A RE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT ON THE INCOM E-TAX OFFICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIR CUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT THAT THE WORD ERRONEOUS IN SECTION 263 INCLUDES THE FAILURE TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN INQUIRY HAS NOT BE MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED T O BE CORRECT. 10. FURTHER TO THIS IT IS NOTICED THAT THERE IS NO APPEAL RIGHT AVAILABLE TO THE REVENUE FROM THE ORDER OF ASSESSMENT PASSED BY ASSESSING OF FICER AND I.E. WHY REVISIONARY POWERS HAVE BEEN GIVEN TO THE COMMISSIONER AND SUCH POWER WERE HELD TO BE OF WIDE AMPLITUDE BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SHREE MANJUNATHESWARE PACKING PRODUCTS & CAMPHOR WORKS [1 998] 231 ITR 53/96 TAXMAN 1. THEREFORE, NORMALLY WHEN ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY ON A PARTICULAR ISSUE, THEN SUCH ORDER IN VIEW OF THE ABOVE DETAILED DISCUSSION HAS TO BE CONSTRUED AS ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF REVENUE AND THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF REVENUE AS ASSESSING OFFICER HAS FAILED TO MAKE AN ENQUIRY. 11. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE AND IN THE LIGHT OF THE AFORESAID DECISIONS OF HON'BLE SUPREME COURT AN D HON'BLE HIGH COURT AND IN ACCORDANCE WITH THE AMENDMENT MADE IN SECTIONN-263 OF THE ACT WITH EFFECT FROM - 01.06.2015, I HOLD THAT THE IMPUGNED ASSESSMENT ORD ER DATE 28.01.2016 PASSED BY THE AO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. I FURTHER HOLD, AFTER GIVING THE ASSESSEE AN OPPORTUN ITY OF BEING HEARD, THAT THE ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 6 IMPUGNED ASSESSMENT ORDER DATED 28.01.20166 IS LIAB LE TO SET-ASIDE. THEREFORE, I SET ASIDE THE SAID ASSESSMENT ORDER DIRECTING THE PRESE NT ASSESSING OFFICER TO FRAME THE ASSESSMENT AFRESH AFTER CONSIDERING THE AFORESAID O BSERVATIONS, HON'BLE SUPREME COURT AND HON'BLE HIGH COURT DECISIONS AND AS PER L AW. 12. IN THE RESULT, THE ASSESSMENT ORDER 143(3)/147 DATED 28.01.2016 FOR AY 2008-09 IS SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER W ITH A DIRECTION TO PASS A FRESH ASSESSMENT ORDER AFTER CONSIDERING THE AFORESAID OB SERVATIONS, AS PER LAW AND AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSE E . 3. AFTER GIVING OUR THOUGHTFUL CONSIDERATION TO ASS ESSEES PLEADINGS AND REVENUES ARGUMENTS IN FAVOUR OF PCITS REVISION DI RECTION UNDER CHALLENGE, IT EMERGES THAT THE ASSESSING OFFICER HAD NOT CONDUCTE D THE DUE ENQUIRIES AS PER SEC. 263 EXPLANATION INSERTED IN THE ACT WITH E FFECT FROM 01.06.2015 REGARDING SHARE CAPITAL / PREMIUM IN ISSUE. LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITS THAT THIS TRIBUNALS LEAD ORDER IN SUBBHALAKSHMI VANIJYA PVT. LTD. & OTRS . ITA NO.1104/KOL/2014 AS AFFIRMED IN HON'BLE JURISDICTIONAL HIGH COURT RAJMANDIR ESTATE PVT. LTD. VS. PCIT ITA NO.113/2016 AND BEFORE THE HON'BLE APEX COURT IN SL P CIVIL NO.2396/2017. LEARNED CO-ORDINATE BENCH THEREIN HAD MADE A DETAIL ED DISCUSSION EXPLAINING ELABORATELY THE RELEVANT METHOD DEPLOYED IN INTRODU CING SUCH SHARE CAPITAL / PREMIUM BY WAY OF JAMAKHARCHA COMPANIES. WE THEREFO RE ADOPT JUDICIAL CONSISTENCY TO AFFIRM THE PCITS FINDINGS UNDER CHA LLENGE DIRECTING THE ASSESSING OFFICER TO EXAMINE THE ENTIRE ISSUE OF AS SESSEES SHARE CAPITAL / PREMIUM AFRESH AS PER LAW. 4. THIS ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 22/11/2019 SD/- SD/- ( %) (' %) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP (- 22 / 11 /201 9 ITA NO.2211/KOL/2018 A.Y.2008-09 M/S GENERAL POLYTEX PVT. LTD. VS. ITO WD-1(1), KOL. PAGE 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S GENERAL POLYTEX PVT.LTD., A-WING, 6 TH FL, INTERNATIONAL COMMERCE CENTRE (ICC), NR. KA DIWALA SCHOOL, RING ROAD, SURAT-395002 2 . /RESPONDENT-ITO WARD-1(1), AAYAKAR BHAWAN, P-7, CHO WRINGHEE SQR, KOL-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5 . 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,