M/s Metrocity Developer Pvt. Ltd., Kolkata V. CIT, KOLKATA-1, Kolkata

ITA 545/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9233 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 27-03-2014
• Court: TRIBUNAL
• Keywords: Revision of order; Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 133(6); 147; 68; 148; 263

Judgement Text

ITA NO.545/KOL/2014-M/S. METROCITY DEVELOPER PVT.LT D. A.Y.2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHE S : C : KOLKATA BEFORE SHRI N.V. VASUDEVAN, JM & DR.ARJUN LAL SAINI , AM ITA NO.545/KOL/2014 ASSESSMENT YEAR: 2008 - 09 M/S. METROCITY DEVELOPER PVT.LTD. N.K.GOYAL, 16, N.S.ROAD, KOLKATA- 700001. REP. BY SHRI SUBASH AGARWAL, ADVOCATE PAN : AAFCM 3256 Q VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. REP. BY SHRI RAJAT KUMAR KUREEL, JCIT, SR.DR (APPELLANT) (RESPONDENT) DATE OF HEARING : 06.03.2017. DATE OF PRONOUNCEMENT : 06.03.2017. ORDER PER N.V.VASUDEVAN, JM THROUGH THIS APPEAL, THE ASSESSEE ASSAILS THE CORR ECTNESS OF ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (CIT) DATED 14.3.2014 U/ S 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEAR. 2. WE FIND THAT IT IS NOT DISPUTED BY THE PARTI ES BEFORE US THAT THE ISSUE RAISED IN THIS APPEAL IS SQUARELY COVERED AGAINST THE ASSESSEE BY SEVERAL ORDERS PASSED BY THIS BENCH INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . 3. BRIEFLY STATED THE FACTS OF THE CASE IN THIS APPEAL ARE SIMILAR TO THE CASE OF SUBHLAKSHMI VANIJYA (INFRA) IN AS MUCH AS RETURNS W ERE FILED BY THE ASSESSEE WITH MEAGRE INCOME; INTIMATION WAS ISSUED U/S 143(1); T HEREAFTER NOTICE U/S 148 WAS ISSUED AT THE INSTANCE OF SUCH COMPANIES DIVULGING A PALTRY E SCAPEMENT OF INCOME; ASSESSMENT ITA NO.545/KOL/2014-M/S. METROCITY DEVELOPER PVT.LT D. A.Y.2008-09 2 ORDER WAS PASSED U/S 143(3) READ WITH SECTION 147 A FTER MAKING NOMINAL ADDITIONS AND THE AOS, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDIN GS, MADE SOME FORMAL ENQUIRIES ABOUT SHARES ISSUED BY SUCH COMPANIES AT HUGE PREMI UM BY ISSUING NOTICES U/S 133(6) TO SOME OF THE SHAREHOLDERS AND GETTING SATISFIED WITH OUT ANY FURTHER INVESTIGATION. THE JURISDICTIONAL CITS HAVE PASSED ORDERS U/S 263 ON T HE GROUND THAT THE ENQUIRY WITH REGARD TO RECEIPT OF SHARE CAPITAL AS DONE BY THE AO IN TH E ASSESSMENT CONCLUDED WAS NOT PROPER OR ADEQUATE RENDERING THE ORDER ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF THE REVENUE. THE CORRECTNESS OF SUCH ORDER HAS BEEN ASSAILED BY THE ASSESSEE 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 PART IES BEFORE US 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 FOLL OWING 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; 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 ; ITA NO.545/KOL/2014-M/S. METROCITY DEVELOPER PVT.LT D. A.Y.2008-09 3 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 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 ASSE SSEE 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.545/KOL/2014-M/S. METROCITY DEVELOPER PVT.LT D. A.Y.2008-09 4 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 PRESENT ALSO. IN VIEW OF THE FOREGOING DISCUSSION AND FOLLO WING THE VIEW TAKEN IN SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) , WE UPHOLD ALL THE IMPUGNED ORDERS. 7. IN THE RESULT, THIS APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 06.03.20 17. SD/- SD/- [DR.A.L.SAINI] ACCOUNTANT MEMBER [N.V.VASUDEVAN] JUDICIAL MEMBER DATED : 06.03.2017. RG.PS COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA . ITA NO.545/KOL/2014-M/S. METROCITY DEVELOPER PVT.LT D. A.Y.2008-09 5