Mainak Suppliers (P) Ltd, Kolkata V. C.I.T - III,kolkata, Kolkata

ITA 834/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99983 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2012
• Court: TRIBUNAL
• Department Lawyers: S SRIVASTAVACIT
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 142(1); 147; 68; 148; 263

Judgement Text

1 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA BEFORE SHRI R.S. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA NO.834/KOL/2013 ASSESSMENT YEAR:2009-10 M/S.MAINAK SUPPLIERS (P) LTD., MR.SUBASH AGARWAL (ADV) 1, GIBSON LANE, KOLKATA-700069. PAN : AAFCM 6497 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.965/KOL/2015 ASSESSMENT YEAR:2008-09 M/S.ISHAN TIE-UP PVT. LTD., 369/14, DAKSHINDARI ROAD, NARMADA APARTMENTS, 4 TH FLOOR, FLAT NO.9, KOLKATA-700048. PAN : AAACI 5648 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.935/KOL/2013 ASSESSMENT YEAR:2009-10 M/S.AKIN DEALERS PVT. LTD., 6/A, CLIVE ROW, 4 TH FLOOR, ROOM NO.6/9, KOLKATA-700001. PAN : AACCA 1821 G VS. PR.COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.822/KOL/2013 ASSESSMENT YEAR:2008-09 TARGET DEALERS (P) LTD., MR.SUBASH AGARWAL (ADV) 1, GIBSON LANE, VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, 2 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 KOLKATA-700069. PAN : AADCT 0040 K P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.694/KOL/2014 ASSESSMENT YEAR:2009-10 M/S.DANIEL COMMODITIES (P) LTD., MR.ASHOK KUMAR JAIN, 15B, CLIVE ROW KOLKATA-700001. PAN : AACCD 9344 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.593/KOL/2015 ASSESSMENT YEAR:2008-09 M/S.CONCORD TRADECOM PVT. LTD., 113/1B, C.R.AVENUE, MD.ALI PARK, KOLKATA-700073. PAN : AADCC 2316 H VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.825/KOL/2013 ASSESSMENT YEAR:2009-10 MAHARAJ VINCOM (P) LTD., MR.SUBASH AGARWAL (ADV) 1, GIBSON LANE, KOLKATA-700069. PAN : AAFCM 6496 E VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.828/KOL/2013 ASSESSMENT YEAR:2009-10 DEBDOOT SUPPLIERS (P) LTD., MR.SUBASH AGARWAL (ADV) 1, GIBSON LANE, KOLKATA-700069. VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 PAN : AACCD 9338 H ITA NO.881/KOL/2013 ASSESSMENT YEAR:2008-09 M/S SUMIT SALES AGENCY (P) LTD., 17/3, GOVIND CHAND DHAR, 3 RD FLOOR, KOLKATA-700001. PAN : AADCS 5759 A VS. PR.COMMISSIONER OF INCOME TAX, KOLKATA-2, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.692/KOL/2014 ASSESSMENT YEAR:2009-10 DEBDARSHAN VINIMAY (P) LTD., MR.ASHOK KUMAR JAIN, 15B, CLIVE ROW KOLKATA-700001. PAN : AACCD 9345 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1041/KOL/2014 ASSESSMENT YEAR:2010-11 M/S. LAKEVIEW TRADELINKS PVT. LTD., 9/12, LAL BAZAR STREET, KOLKATA-700001. PAN : AABCL 6968 J VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI SUBASH AGARWAL, ADVOCATE DEPARTMENT BY : SHRI.S.SRIVASTAVA,CIT, DR. DATE OF HEARING : 04.11.2015 DATE OF PRONOUNCEMENT : 04.11.2015 ORDER PER BENCH 4 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 THROUGH THIS BATCH OF APPEALS, DIFFERENT ASSESSEES ASSAIL THE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMIS SIONERS OF INCOME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 196 1 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE ALL THESE APPEALS ARE BASED ON LARGELY SIMILA R FACTS AND COMMON GROUNDS OF APPEAL, WE ARE PROCEEDING TO DISPOSE THE M OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED THE FACTS OF ALL THE CASES IN THIS BATCH ARE SIMILAR INASMUCH AS RETURNS WERE FILED BY SUCH COMPANIES WI TH MEAGRE INCOME; INTIMATIONS WERE ISSUED U/S 143(1); THEREA FTER NOTICES U/S 148 WERE ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIE S DIVULGING A PALTRY ESCAPEMENT OF INCOME OR OTHERWISE ; ASSESSM ENT ORDERS WERE PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKIN G NOMINAL ADDITIONS AND THE AOS, DURING THE COURSE OF SUCH AS SESSMENT PROCEEDINGS, MADE SOME FORMAL ENQUIRIES ABOUT SHARE S 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 5 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 INVESTIGATION. THE JURISDICTIONAL CITS HAVE PASSED ORDERS U/S 263 IN ALL SUCH CASES, WHICH HAVE BEEN ASSAILED BEFORE THE TRIBUNAL. 3. THE LD. AR HAS FILED APPLICATIONS FOR ADMISS ION OF THE ONE OR BOTH THE FOLLOWING ADDITIONAL GROUNDS IN SOME OF TH ESE APPEALS, WHICH READ AS UNDER:- (I) `FOR THAT THE ORDER PASSED U/S 263 BY THE LD. CIT I S BARRED BY LIMITATION, AS SUCH, THE ORDER PASSED U/S 263 IS LIABLE TO BE QUASHED. (II) FOR THAT THE ORDER PASSED U/S 263 BY THE LD. CIT IS LIABLE TO BE QUASHED IN THE ABSENCE OF PROPER SERVICE OF NOTI CE TO THE ASSESSEE. 4. THE LD. AR ARGUED THAT THESE GROUNDS WERE OM ITTED TO BE TAKEN IN THE MEMORANDUM OF THE CONCERNED APPEALS. HE STATED THAT SINCE THESE GROUNDS INVOLVE SUBSTANTIAL QUESTIONS OF LAW, THE S AME BE ADMITTED. THE LD. DR DID NOT RAISE ANY SERIOUS OBJECTION TO T HE ADMISSION OF THE ABOVE ADDITIONAL GROUNDS. 5. AFTER CONSIDERING THE SUBMISSIONS FROM BOTH T HE SIDES, WE ARE 6 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 SATISFIED THAT THE ABOVE GROUNDS DEAL ONLY WITH THE QUESTIONS OF LAW ARISING FROM THE FACTS ON RECORD. FOLLOWING THE JUD GMENT OF THE HONBLE SUPREME COURT IN NATIONAL THERMAL POWER COMPANY LIMITED VS. CIT (1998) 229 ITR 383 (SC) , WE ADMIT THE ABOVE GROUNDS FOR DISPOSAL ON MERITS. 6. INSOFAR AS THE MERITS OF THE ABOVE ADDITIONA L GROUNDS ARE CONCERNED, THE LD. AR WAS FAIR ENOUGH TO CONCEDE TH AT SIMILAR GROUNDS HAVE BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSES SEE IN ITS LEAD ORDER PASSED IN SUBHLAKSHMI VANIJYA PVT. LTD. (INFRA) . IN FACT, NO SEPARATE ARGUMENTS WERE ADVANCED IN SUPPORT OF SUCH GROUNDS BY CONTENDING THAT THE FACTS ARE SIMILAR TO THOSE ALREADY CONSIDE RED AND DECIDED BY THE TRIBUNAL IN THE ABOVE REFERRED CASE AND HE WAS RAISING THESE GROUNDS FOR KEEPING THE MATTER ALIVE BEFORE THE HON BLE HIGH COURT. IN VIEW OF THE ABOVE SUBMISSIONS, WE DISMISS THESE ADDITIONAL GROUNDS OF APPEAL. 7. QUA THE GROUNDS TAKEN UP IN THE MEMORANDUM OF RE SPECTIVE APPEALS, WE HAVE HEARD THE RIVAL SUBMISSIONS AND PE RUSED THE RELEVANT MATERIAL ON RECORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISPOSED OF 7 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 MORE THAN 500 CASES INVOLVING SAME ISSUE THROUGH CE RTAIN 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. 8. BOTH THE SIDES HAVE FAIRLY ADMITTED THAT FACT S 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 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 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 JURISDICTION OF THE AO IN MAKIN G ENQUIRIES ON THE ISSUES OR MATTERS AS HE CONSIDERS FIT IN 8 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 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 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 ANDNOT OTHER CIT. F. ADDITION IN THE HANDS OF A COMPANY CAN BE MADE U/S 68 IN ITS FIRST YEAR OF INCORPORATION. 9 ITA.834/K/2013,965/K/2015,935/K/2013,822/K/ 2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 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. 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. 9. 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. & ORS. (SUPRA) , WE UPHOLD ALL THE IMPUGNED ORDERS. 10. IN THE RESULT, ALL THE APPEALS ARE DISMISSED . THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.11.20 15. SD/- SD/- [N.V. VASUDEVAN] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 4 TH NOVEMBER, 2015. 10 ITA.834/K/2013,965/K/2015,935/K/2013,822/K /2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014 COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA. 11 ITA.834/K/2013,965/K/2015,935/K/2013,822/K /2013,694/K/2014,593/K/2015,825/K/2013, 828/K/2013,881/K/2013,692/K/2014&1041/K/2 014