Hamayan Barter Pvt Ltd, Howrah V. I.T.O Wd - 1(3),kolkata., Kolkata

ITA 959/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100022 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 19-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2013
• Court: TRIBUNAL
• Department Lawyers: S SRIVASTAVA
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3); 133(6); 147; 68; 148; 263

Judgement Text

1 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA ITA NO.959/KOL/2013 ASSESSMENT YEAR 2008-0 9 M/S. HAMAYAN BARTER PVT. LTD. C/O MAHESH SHARMA, 9/2/1, GIRISH BANERJEE LANE, GROUND FLOOR, ROOM NO.1C, HOWRAH-711101. PAN : AAACH 6442 A VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.2231/KOL/2013 ASSESSMENT YEAR 2008-0 9 M/S. FOUNTAIN HEAD MERCANTILES PVT. LTD. 5/1, CLIVE ROW, 3 RD FLOOR, ROOM NO.80, KOLKATA-700001. PAN : AAACF 3757 G VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1756/KOL/2013 ASSESSMENT YEAR 2008-0 9 M/S. RADHIKA BARTER PVT. LTD., 63/2, ROY BAHADUR ROAD, BEHALA, KOLKATA- 700034. PAN : AADCR 6422 R VS. COMMISSIONER OF INCOME TAX, KOLKATA-III, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.105/KOL/201 4 ASSESSMENT YEAR 2008-0 9 PANCHMUKHI TRACOM PVT. LTD., C/O ISC, 127/10/1, MANIKTALLA MAIN ROAD, VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, 2 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 KOLKATA-700054. PAN : AAECP 5495 K KOLKATA 700 069. ITA NO.869/KOL/201 4 ASSESSMENT YEAR 2009-1 0 HALLMARK COMMOTRADE PVT. LTD., 27, BRABOURNE ROAD, KOLKATA-700001 PAN : AACCH 0963 N VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1839/KOL/20 14 ASSESSMENT YEAR 2008-0 9 ARTLINE FISCAL SERVICES PVT. LTD., 15, BOW STREET, 1 ST FLOOR, KOLKATA-700012. PAN: AAFCA 3484 N VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1154/KOL/20 14 ASSESSMENT YEAR 2009-1 0 M/S. JAGANNATH SUPPLIERS PVT. LTD., K. ARUN & COMPANY, 52, WESTON STREET, 3 RD FLOOR, ROOM-304, KOLKATA-700012. PAN: AACCJ 0195 N VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANTS) (RESPONDENTS ASSESSEE BY : NONE DEPARTMENT BY : SHRI.S.SRIVASTAVA, CIT, DR. 3 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 DATE OF HEARING : 3.11.2015 DATE OF PRONOUNCEMENT : 3.11.2015 ORDER PER BENCH THROUGH THESE APPEALS, DIFFERENT ASSESSEES ASSAIL T HE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMISSIONERS OF INCO ME-TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO C ALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE A LL THESE APPEALS ARE BASED ON LARGELY SIMILAR FACTS AND COMMON GROUNDS O F 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 EAR LIER COME UP FOR HEARING ON SEVERAL OCCASIONS AND THE ASSESSEES HAVE SOUGHT ADJOURNMENTS ON ONE PRETEXT OR THE OTHER. TODAY, WH EN THESE APPEALS WERE CALLED UP FOR HEARING, NEITHER THERE WAS ANY A DJOURNMENT APPLICATION NOR ANY BODY PUT IN APPEARANCE AT ALL. THE LD. DR STATED THAT 4 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 THE ISSUE RAISED IN THESE APPEALS IS COVERED AGAINS T THE ASSESSEE BY NUMEROUS ORDERS PASSED BY THE TRIBUNAL. WE ALSO FIN D THAT THE ISSUES RAISED IN THESE APPEALS ARE SQUARELY COVERED AGAINS T 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 WI TH MEAGRE INCOME; INTIMATIONS WERE ISSUED U/S 143(1); THEREAFTER NOTI CES U/S 148 WERE ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIES DIV ULGING A PALTRY ESCAPEMENT OF INCOME OR OTHERWISE ; ASSESSMENT ORD ERS WERE PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKING NOMINAL A DDITIONS AND THE AOS, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDIN GS, MADE SOME FORMAL ENQUIRIES ABOUT SHARES ISSUED BY SUCH COMPAN IES AT HUGE PREMIUM BY ISSUING NOTICES U/S 133(6) TO SOME OF TH E SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION . THE JURISDICTIONAL 5 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 CITS HAVE PASSED ORDERS U/S 263 IN ALL SUCH CASES, WHICH HAVE BEEN ASSAILED BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISP OSED OF MORE THAN 500 CASES INVOLVING SAME ISSUE THROUGH CERTAIN ORDERS W ITH THE MAIN ORDER HAVING BEEN PASSED IN A GROUP OF CASES 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 AD DITION ON ACCOUNT 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 ORDE R U/S 263 COULD NOT HAVE DIRECTED THE AO TO DO SO, IS UNSUSTA INABLE. 6 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 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, NOTWITHSTANDI NG THE JURISDICTION OF THE AO IN MAKING ENQUIRIES ON THE I SSUES OR MATTERS AS HE CONSIDERS FIT IN TERMS OF SECTION 142 (1) AND 143(2) OF THE ACT, WHICH 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 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 THEREB Y 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 GIVE A N OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH HAS BEEN COMPLIED WI TH IN ALL SUCH CASES. 7 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 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, WH ICH 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 J URISDICTION 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 INTENTI ON OF THE ASSESSEE IS TO DEFRAUD THE REVENUE BY EITHER FILING RETURNS, AFTER AMALGAMATION, IN THE OLD NAME OR OTHERWISE, THEN TH E 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 CANNO T 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. 8 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14 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 FOREGO ING 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 DISMISSED . THE ORDER PRONOUNCED IN THE OPEN COURT ON 03.11.20 15. SD/- SD/- [R.S. SYAL] [N.V. VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 3 RD NOVEMBER, 2015. RG COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA 9 ITA.959/K/13,2231/K/13,1756/K/13,1839/K/14,869/K/14 ,105/K/14&1154/K/14