Appeal details
Counselvise Citation
[2017] 128 COUNSELVISE.COM (IT) 9318 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 10 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-03-2017
Appeal Filed By
Assessee
Bench Allotted
D
Next Hearing Date
07-03-2017
Assessment Year
2009-2010
Appeal Filed On
07-05-2015
Judgement Text
ITA NOS.544/KOL/2015&576/KOL/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHE S : D : KOLKATA BEFORE SHRI N.V. VASUDEVAN, JM & DR. ARJUN LAL SAIN I, AM ITA NO.544/KOL/2015 ASSESSMENT YEAR:2009-10 M/S. MARINA SALES PVT. LTD. 2 ND FLOOR, 35, G.C.AVENUE, ROOM NO.13, KOLKATA-700013. REP. BY NONE PAN : AAFCM 8134 R VS. PR. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. REP. BY SHRI NIRAJ KUMAR, CIT ITA NO.576/KOL/2014 ASSESSMENT YEAR:2008-09 M/S. ACTIVE TIE-UP PVT. LTD 16, MANGOE LANE, 2 ND FLOOR, KOLKATA-700001. REP. BY NONE PAN : AAGCA 7193 R VS. I.T.O., WARD-1(4), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. REP. BY NIRAJ KUMAR, CIT (APPELLANTS) (RESPONDE NTS) DATE OF HEARING : 07.03.2017. DATE OF PRONOUNCEMENT : 07.03.2017. ORDER PER BENCH THROUGH THESE APPEALS, DIFFERENT ASSESSEES ASSAIL T HE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMISSIONERS OF INCOME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE ALL THESE APPEALS ARE BASED ON LARGELY SIMILAR FACTS AN D COMMON GROUNDS OF APPEAL, WE ARE PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BEFORE TAKING UP THE DISPOSAL OF THE INSTAN T APPEALS ON MERITS, WE CONSIDER IT EXPEDIENT TO RECORD THAT THESE HAVE EARLIER COME UP FOR HEARING. NOTICES SENT TO THE ASSESSEE BY SPEED POST AT THE ADDRESS FURNISHED BY THE ASSESSEE IN FORM NO.36 HAS NOT BEEN RETURNED UNSERVED. TODAY, WHEN THESE APPEALS W ERE CALLED UP FOR HEARING, NEITHER ITA NOS.544/KOL/2015&576/KOL/2014 2 THERE WAS ANY ADJOURNMENT APPLICATION NOR ANY BODY PUT IN APPEARANCE AT ALL. WE ALSO FIND THAT THE ISSUES RAISED IN THESE APPEALS ARE SQ UARELY COVERED AGAINST THE ASSESSEE BY SEVERAL ORDERS PASSED BY THIS BENCH INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . UNDER THESE CIRCUMSTANCES, WE ARE TAKING UP THES E APPEALS FOR DISPOSAL ON MERITS EX PARTE QUA THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF ALL THE CASES IN THIS BATCH ARE SIMILAR INASMUCH AS RETURNS WERE FILED BY SUCH COMPANIES WITH MEAGRE INCOME; I NTIMATIONS WERE ISSUED U/S 143(1); THEREAFTER NOTICES U/S 148 WERE ISSUED EITHER AT TH E INSTANCE OF SUCH COMPANIES DIVULGING A PALTRY ESCAPEMENT OF INCOME OR OTHERWISE ; ASSESSM ENT ORDERS WERE 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 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 A SSAILED BEFORE THE TRIBUNAL. 4. WE HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. 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 CASES 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 UNSUSTA INABLE. 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 OR DER, BY HOLDING THAT :- I) THE ENQUIRY CONDUCTED BY THE AO IN SUCH CASES CA NT BE CONSTRUED AS A PROPER ENQUIRY; ITA NOS.544/KOL/2015&576/KOL/2014 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 PR EMISE THAT THE AO DID NOT MAKE ENQUIRY THEREBY RENDERING THE ASSESSMENT 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 THROUGH AFFIXTURE OR OTHERWISE. FUR THER THE LAW DOES NOT REQUIRE THE SERVICE OF NOTICE U/S 263 STRICTLY AS PER THE T ERMS 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 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 WITH SEC. 143(3) AND NOT THE DAT E OF INTIMATION ISSUED U/S 143(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 TERRITORIAL 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 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 ASSE SSEE WERE COMPLETED ON AN EARLIER WORKING DAY. ITA NOS.544/KOL/2015&576/KOL/2014 4 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. 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 THE APPEALS IN THIS BATCH. IN VIEW OF THE FOREGOING DISCUSSION AND FOLLOWING THE VIEW TAKEN IN SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) , WE UPHOLD ALL THE IMPUGNED ORDERS. 7. IN THE RESULT, ALL THE APPEALS ARE DISMISSE D. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2 017. SD/- SD/- [DR.ARJUN LAL SAINI] ACCOUNTANT MEMBER [N.V.VASUDEVAN] JUDICIAL MEMBER DATED : 07.03.2017. RG.PS COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA ITA NOS.544/KOL/2015&576/KOL/2014 5
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