M/s Richfield Petrolium Pvt. Ltd., Kolkata V. CIT, KOLKATA-1, KOLKATA, Kolkata

MA 110/KOL/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3689 (ITAT-KOLKATA)
• Duration Of Justice: 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 14-10-2015
• Court: TRIBUNAL
• Department Lawyers: S SRIVASTAVACIT
• Assessee Lawyers: J N GUPTA
• Keywords: Period of limitation; Time period of passing order
• Section: 133(6); 147; 68; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA M.A.NO.110/KOL 2015 IN ITA NO.621/KOL/2014 & ITA NO.621/KOL/2014 ASSESSMENT YEAR:2008-09 M/S. RICHFIELD PETROLEUM PVT.LTD., 2 ND FLOOR, 12, WATERLOO STREET, KOLKATA- 700069. PAN : AABCR 4548 J VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. M.A.NO. 111/KOL/2015 IN ITA NO.460/KOL/2014 & ITA NO.460/KOL/2014 ASSESSMENT YEAR:2008-09 M/S. INDUJA NIRYAT PVT.LTD., 2B, GRANT LANE, KOLKATA- 700012. PAN : AAAC1 5664 D VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. M.A.NO.112/KOL/2015 IN ITA NO.520/KOL/2014 & ITA NO.520/KOL/2014 ASSESSMENT YEAR:2008-09 MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 2 M/S. RANGSIDH ENTERPRISES PVT.LTD., 12, WATERLOO STREET, 2 ND FLOOR, KOLKATA-700069. PAN : AACCA 2560 N VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. M.A.NO.113/KOL/2015 IN ITA NO.521/KOL/2014 & ITA NO.521/KOL/2014 ASSESSMENT YEAR:2008-09 M/S. ALANKAR PLASTICS PVT.LTD., 12, WATERLOO STREET, KOLKATA- 700069. PAN : AAACA 3623 Q VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. M.A.NO.114/KOL/2015 IN ITA NO.534/KOL/2014 & ITA NO.534/KOL/2014 ASSESSMENT YEAR:2008-09 M/S. HINDUSTAN INSTRUMENTATION & INDUSTRIES PVT.LTD., 5 TH FLOOR, ROOM NO.7L, 12A, NS ROAD, KOLKATA-700001. PAN : AAACH 7641 F VS. COMMISSIONER OF INCOME TAX, KOLKATA-I, AAYAKARBHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 3 (APPELLANTS/APPLICANTS) (RESPONDENTS/RESPTS.) ASSESSEE BY : J.N.GUPTA, FCA DEPARTMENT BY : SHRI.S.SRIVASTAVA,CIT, DR. DATE OF HEARING : 30.10.2015 DATE OF PRONOUNCEMENT : 30 .10.2015 ORDER PER BENCH THESE MISCELLANEOUS APPLICATIONS U/S. 254(2) OF THE INCOME-TAX ACT, 1961 HAVE BEEN MOVED BY FIVE DIFFERENT ASSESSE ES PRAYING FOR THE RECALLING OF THE CAPTIONED ORDERS OF THE TRIBUNAL P ASSED U/S 254(1) OF THE ACT. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE NOTICES FOR HEARING SENT BY THE TRIBUNAL WERE NOT RECEIVED IN T IME AND AS SUCH THE EX PARTE ORDERS PASSED BY THE TRIBUNAL BE RECALLED FOR GIVI NG AN EFFECTIVE OPPORTUNITY OF HEARING. NO SERIOUS OBJECTION WAS TA KEN BY THE LD. DR. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE RELEVANT MATERIAL ON RECORD, WE ARE SATISFIED WITH THE REASO NABLENESS OF THE CAUSE FOR NOT PUTTING IN APPEARANCE WHEN THE APPEALS WERE CALLED FOR HEARING. MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 4 WE, THEREFORE, RECALL THE IMPUGNED ORDERS AND TAKE UP THE APPEALS FOR A FRESH DISPOSAL ON MERITS. 4. THROUGH THIS BATCH OF APPEALS, DIFFERENT ASSESS EES ASSAIL THE CORRECTNESS OF SEPARATE ORDERS PASSED BY THE COMMIS SIONERS OF INCOME- TAX (CIT) U/S 263 OF THE INCOME-TAX ACT, 1961 (HERE INAFTER ALSO CALLED THE ACT) IN RELATION TO THE CAPTIONED ASSESSMENT YEARS. SINCE THESE APPEALS ARE BASED ON LARGELY SIMILAR FACTS AND COMM ON GROUNDS OF APPEAL, WE ARE PROCEEDING TO DISPOSE THEM OFF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 5. BRIEFLY STATED THE FACTS IN THIS BATCH OF CAS ES 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 E SCAPEMENT OF INCOME OR OTHERWISE ; ASSESSMENT ORDERS WERE PASSED U/S 1 43(3) READ WITH SECTION 147 AFTER MAKING NOMINAL ADDITIONS AND THE AOS, DURING THE COURSE OF SUCH ASSESSMENT PROCEEDINGS, MADE SOME FO RMAL ENQUIRIES ABOUT SHARES ISSUED BY SUCH COMPANIES AT HUGE PREMI UM BY ISSUING MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 5 NOTICES U/S 133(6) TO SOME OF THE SHAREHOLDERS AND GETTING SATISFIED WITHOUT ANY FURTHER INVESTIGATION. THE JURISDICTION AL CITS HAVE PASSED ORDERS U/S 263 IN ALL SUCH CASES, WHICH HAVE BEEN A SSAILED BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS RELEVANT TO MENTION THAT WE HAVE DISPOSED OF MORE THAN 400 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. 7. THE LD. AR ARGUED THAT PROVISO TO SECTION 68 BE TREATED AS PROSPECTIVE AND NOT RETROSPECTIVE. WE HAVE DISCUSSE D THIS ISSUE AT LENGTH IN OUR ORDER IN SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) AND FINALLY HELD IT TO BE RETROSPECTIVE. BOTH THE SIDES HAVE FAIRLY ADM ITTED THAT FACTS AND CIRCUMSTANCES OF THE CASES UNDER CONSIDERATION ARE MUTATIS MUTANDIS SIMILAR TO THOSE DECIDED EARLIER. IN OUR AFORESAID ORDER IN SUBHLAKSHMI MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 6 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. 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 MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 7 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. 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. MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 8 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. 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 ORDERS PASSED BY THE LD. CITS. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS AR E ALLOWED BUT THE CORRESPONDING APPEALS ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.20 15. SD/- SD/- DATED, 30 TH OCTOBER, 2015. RG [R.S. SYAL] [N.V. VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 9 COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT (A) DR, ITAT AR, ITAT, KOLKATA. MA NO.110-114/KOL/2015 RICHFIELD PETROLIUM PVT. LTD. M/S INDUJA NIRYAT PVT. LTD. M/S RANGRIDDH ENTERPRISE P.LTD. M/S ALANKAR PLASTICS PVT. LTD. M/S HINDUSTAN INSTDRUM.& INDA. PV. LTD.. 10