M/s Supriya Fincom (P) Ltd, Kolkata V. C.I.T - I,kolkata, Kolkata

ITA 984/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4832 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 24-05-2016
• 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); 142(1); 133(6); 147; 68; 148; 263

Judgement Text

ITA NOS.984,985&1814/KOL/13 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA BEFORE SHRI P.M.JAGTAP, AM & SHRI N.V. VASUDEVAN, J M ITA NO.984/KOL/2013 ASSESSMENT YEAR:2008-09 M/S.SUPRIYA FINCOM PVT.LTD., COPRA HOUSE, 133, CANNING STREET, 3 RD FLOOR, ROOM NO.1, KOLKATA-700001. PAN : AADCS 8294 A VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.985/KOL/2013 ASSESSMENT YEAR:2008-09 M/S.NEOGROWTH VYAPAAR PVT.LTD., 2, LAL BAZAR STREET, KOLKATA-700001. PAN : AACCN 5032 C VS. COMMISSIONER OF INCOME TAX, KOLKATA-II, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ITA NO.1814/KOL/2013 ASSESSMENT YEAR:2008-09 FREE TOWERS PVT.LTD., 9/12, LAL BAZAR STREET, MERCANTILE BUILDING, 3 RD FLOOR, BLOCK-B, ROOM NO.10, KOLKATA-700001. PAN : AABCF 1927 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-I,I AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : NONE DEPARTMENT BY : SHRI S.SRIVASTAVA , CIT(DR) DATE OF HEARING : 24.05.2016 DATE OF PRONOUNCEMENT : 24 .05.2016 ORDER PER P.M.JAGTAP, AM THROUGH THESE APPEALS, DIFFERENT ASSESSEES ASSAIL T HE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMISSIONERS OF INCOME-TAX (C IT) U/S 263 OF THE INCOME- ITA NOS.984,985&1814/KOL/13 2 TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) I N RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE ALL THESE APPEALS ARE BASED ON LARGELY SIMILAR FACTS AND COMMON GROUNDS OF APPEAL, WE ARE PROCEEDING TO DISP OSE 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 ON SEVERAL OCCASIONS AND THE ASSESSEES HAVE SOUGHT ADJOURNMENT S ON ONE PRETEXT OR THE OTHER. TODAY, WHEN THESE APPEALS WERE CALLED UP FOR HEARIN G, NEITHER THERE WAS ANY ADJOURNMENT APPLICATION NOR ANY BODY PUT IN APPEARA NCE AT ALL. THE LD. DR STATED THAT THE ISSUE RAISED IN THESE APPEALS IS COVERED A GAINST THE ASSESSEE BY NUMEROUS ORDERS PASSED BY THE TRIBUNAL. WE ALSO FIND THAT TH E ISSUES RAISED IN THESE APPEALS ARE SQUARELY COVERED AGAINST THE ASSESSEE BY SEVERA L ORDERS PASSED BY THIS BENCH INCLUDING SUBHLAKSHMI VANIJYA PVT. LTD. VS. CIT (INFRA) . UNDER THESE CIRCUMSTANCES, WE ARE TAKING UP THESE APPEALS FOR D ISPOSAL 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 IN COME; INTIMATIONS WERE ISSUED U/S 143(1); THEREAFTER NOTICES U/S 148 WERE ISSUED EITHER AT THE INSTANCE OF SUCH COMPANIES DIVULGING A PALTRY ESCAPEMENT OF INC OME OR OTHERWISE ; ASSESSMENT ORDERS WERE PASSED U/S 143(3) READ WITH SECTION 147 AFTER MAKING ITA NOS.984,985&1814/KOL/13 3 NOMINAL ADDITIONS AND THE AOS, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDINGS, MADE SOME FORMAL ENQUIRIES ABOUT SHARES ISSUED BY S UCH COMPANIES AT HUGE PREMIUM BY ISSUING NOTICES U/S 133(6) TO SOME OF TH E SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION. THE JU RISDICTIONAL CITS HAVE PASSED ORDERS U/S 263 IN ALL SUCH CASES, WHICH HAVE BEEN A SSAILED 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 DISPOSED OF MORE T HAN 500 CASES INVOLVING SAME ISSUE THROUGH CERTAIN ORDERS WITH THE MAIN ORDER HA VING 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 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 O N ACCOUNT OF RECEIPT OF SHARE CAPITAL WITH OR WITHOUT PREMIUM BEFORE AME NDMENT 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 SUCH ASSESS MENT ORDER, BY HOLDING THAT :- ITA NOS.984,985&1814/KOL/13 4 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 CONSIDERS FIT IN 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 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 PREMIU M ; 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 THEREBY RENDERING THE A SSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE 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 OTHE RWISE. FURTHER THE LAW DOES NOT REQUIRE THE SERVICE OF NOTICE U/S 263 STRI CTLY AS PER THE TERMS OF SECTION 282 OF THE ACT. THE ONLY REQUIREMENT ENSHRI NED IN THE PROVISION IS TO GIVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE, WHI CH HAS BEEN 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. 143(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 THE CASES, THE ORDERS HAVE BEE N 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 JURISDICTI ON 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. ITA NOS.984,985&1814/KOL/13 5 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 AMALGAMATION, 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 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 CANNOT 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. 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 DIS CUSSION 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 24.05.20 16. SD/- SD/- [N.V. VASUDEVAN] [P.M.JAGTAP] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 24.05.2016. RG.PS ITA NOS.984,985&1814/KOL/13 6 COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA . ITA NOS.984,985&1814/KOL/13 7