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Income Tax Appellate Tribunal, “B” BENCH : KOLKATA
Before: Hon’ble Sri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM ]
Per N.V.Vasudevan, JM
This is an appeal by the Assessee against the order dated 21.01.2014 of CIT, (Kol-I), Kolkata passed u/s 263 of the Income Tax Act, 1961 (Act).
The revised grounds of appeal
raised by the assessee read as follows :- “1. On the facts and in the circumstances of the case, the Ld CIT erred in ordering the Ld AO to reverify the Share Capital, although share capital was not the subject matter of assessment u/s. 148. .
2. On the facts and in the circumstances of the case, the Ld CIT erred in invoking section 263.
3. On the facts and in the circumstances of the case, the Ld. CIT erred in holding/stating the following: i) AO erred by not examining all the Subscribers of Share Capital and AO erred by examining Subscribers of Share Capital only on test check basis. (ii) AO was required to serve notice through postal services only Reply by Subscribers of Share Capital pursuant to the notices issued u/s 133(6) must be made by postal mode only because hand delivery is not recognized / illegal mode of delivery.
2 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 iii) Examination of Subscribers of Share Capital by issuing notice u/s 133(6) was inadequate inquiry and AO was compulsorily required to cross examine the subscribers to share capital u/s 131 iv) AO did not enquire the existence, creditworthiness and genuineness of the subscribers. v) sharing the same address with some more companies renders the assessee to become unidentified and ingenuine. vi) assessee did not respond to the notice issued by the Ld. CIT. vii) SC judgment of Sumati Dayal was relevant to the present case.
4. The appellant craves leave to add to, alter, amend and/or modify the ground taken herein.”
3. The Assessee is a company. It’s income comprises of interest, service charges and profit on sale of investments. For A.Y.2008-09 the assessee filed return of income on 29.09.2008 showing a total income of Rs.2,270/-. The said return was processed u/s 143(1) of the Act. Subsequently it was noticed by the AO that certain service charges had not been accounted for by the assessee in its profit and loss account. A notice u/.s 148 of the Act was issued. The assessment was completed u/s 143(3) r.w.s.147 of the Act by an order dt. 25.10.2011. In the said order the AO brought to tax a sum of Rs.1,23,178/- being service charges received by which had not been disclosed in the original return of income. The AO also made the following observations in the assessment so concluded with regard to the receipt of share capital by the assessee during the previous year relevant to A.Y.2008-09 :- “The assessee-company was incorporated on 08.03.1996. During the year, the authorized capital as well as the paid-up share capital of the assesee-company increased from 25,00,000/- and Rs.25,00,000/- respectively to 41,00,000/- and 40,02,000/- respectively. The assessee-company also received Share Premium amounting to Rs.7,44,80,000/- during the year . The source of the receipt of share capital and share premium as to the identity, Creditworthines and genuineness of the transaction has been verified by issuing letter for verification U/s 133(6) of the I.T.Act’61.”
4. The CIT in exercise of his powers u/s 263 of the Act was of the view that the aforesaid order of the AO was erroneous and prejudicial to the interest of the revenue for the following reasons :- 2 3 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 “2. On perusal of assessment record it is noticed that the notices u/s l33(6) of the I.T. Act, 1961 shown on record as having been issued to the only shareholder i .. e. M/s. Whitestone Suppliers Pvt. Ltd, were not served by the A.O. through postal service.
From the perusal of Order Sheet It is noticed that Sri J.N. Gupta, FCA appeared as the A/R of the assessee company before the Assessing Officer. It is further gathered from the assessment record that the reply in response to notice u/s 133(6) of the I.T. Act, 1961 was received in the office of the A.O. from which it cannot be ascertained as to who appeared in response to the notice issued u/s 133(6) of the I.T. Act, 1961 & as how the replies were received, as this is no where mentioned in the order sheet. It is also gathered from the Assessment Record that following few documents i.e. Assessment Order, Return of Income, notice u/s 48/143(2)/142(1) of the I.T. Act, 1961 & office copy of notices u/s.133(6) of the I.T. Act, 1961, Order Sheet, list of share holders and details of investments were placed on record. Besides, thorough and proper enquiry which was required in the case of the assessee company has not been done. The A.O. even did not cross examine or did not record the statement of any director of any subscriber companies u/s 131 of the LT. Act, 1961, before passing the assessment order, to check the genuineness of the identity of the directors or the actual existence of the Co.. The A.O. has also failed to send any intimation to the A.O. of the subscribers to the share-capital regarding the amount paid by them as contribution to the share capital.
It is seen from the copy of bank statement of the assessee that there are several debit and credit entries of similar figures - involving huge transactions during the period from 08.11.2007 to 05.03.200S. The total of credit side and debit side is about Rs.8.09 Cr. Scrutiny in respect of the peculiar nature of such Bank transactions were required to be made.
5. Hence it is seen that thorough and proper inquiry into the existence, credit-worthy-ness and genuineness of subscribers in the case as claimed by the assessee company was not made by the A.O., nor the genuineness of the company and its directors was examined.”
A show cause notice u/s 263 of the Act dated 20.12.2013 was issued on the above lines. The assessee filed reply to the said show cause notice dated 03.01.2014. None attended on behalf of the assessee on 15.01.2014 on which date the hearing were fixed before CIT. The CIT deputed an Inspector of Income Tax attached to the concerned ward to seek certain information. The Inspector so deputed found that the address of the assessee as given in the return of income was the office of Chartered Accountant firm M/s. J.Gupta & Co. and the said Chartered Accountant had appeared in the proceedings 3
4 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 before the AO u/s 147 r.w.s. 143(3) of the Act. The CIT thereafter held that the AO failed to make proper enquiries with regard to the receipt of share capital by the assessee. The CIT made the following observations in this regard :- “8. It is noticed that subscriber to the share capital have paid a huge premium of Rs. 490/- per share while subscribing to the shares of this company. The proportion of share value and the premium thereon is as follows:
Value per share is :Rs. 10/- Premium per share : Rs. 490/-
9. It is surprising that a company which has been freshly started having no ck record of any worth-while business nor any reputation in terms of reliable management has attracted the subscribers to pay premium @ Rs. 490/- per share. This fact itself should have raised the curiosity of the A.O. to prompt him into action by conducting thorough enquiry into at least 2 to 3 layers to reach the source or the real investor. It is also observed that the P&L a/c of this assessee shows an income before Tax of Rs. 2,270/- only. Hence this A.O. was required to make through enquiries in view of the peculiar facts & circumstances of this case.
10. It is obvious that this has not been done by the A.O. Hence, it is a case where enquiries called for have not been carried out calling for intervention u/s 263 of the I. T. Act, 1961 being erroneous in so far as being prejudicial to the interests of Revenue.”
The CIT thereafter set aside the order of the AO and directed the AO to make proper enquiries. The following were the relevant observations of the CIT :- “18. In this case the A.O. has completed the assessment u/s 143(3) read with 148 without even initiating / conducting complete enquiry into the subscription of the share capital and the large amount of premium during the year and the A.O. has also not conducted any enquiries into the various layers through which the money has been rotated for bringing it ultimately in the assessee company as subscription to the share capital. The duty of the A.O. becomes even more onerous specially in view of the fact that the modus operandi adopted by the assessee has been repeated in large number of cases completed by the same A.O.
In view of the above, the order passed by the A.O. is erroneous and judicial to the interest of revenue and hence, the order passed by the A.O. is set aside with the direction that he/ she should pass the assessment order after conducting independent detailed arid complete enquiries into the subscription to the share 4
5 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 capital and premium to the extent of Rs. 7,60,00,000/ - introduced in this case. The A.O. should trace the source of share capital by enquiring into the various layers through which the money has been introduced in this company as share capital and also examine the directors of subscriber companies by issuing summons u/s 131 of the LT. Act. The A.O. should send information to the A.Os. having jurisdiction over the subscriber company to the share capital regarding its investment· into share capital & premium paid. The A.O. should conduct independent enquiries to verify the documents filed before him in respect of proof of subscription to share- capital. The A.O. should not confine himself to conducting enquiries into the subscribers to the share capital only on selective basis. The A.O. should also call upon the assessee to identify the persons who are shown as directors of the assessee company and examine them on oath to verify their credential as directors. The A.O. should pass speaking order after providing reasonable opportunity to the assessee and verifying the source of share capital including the share premium of all the subscribers and rotation of money through various hands so as to ascertain the true nature of transaction which will bring to the fore, the reality of the transactions.”
Aggrieved by the order of CIT directing the AO to make proper enquiries in respect of the receipt of share capital during the previous year the assessee has filed the present appeal before the Tribunal.
The ld. Counsel for the assessee in his submissions reiterated the stand taken by the assessee in the grounds of appeal filed before the Tribunal which are set out in the earlier part of this order. The ld. DR, on the other hand, pointed out that the present appeal filed by the assessee is identical to the several appeals decided by this Tribunal and the order in the lead case in such grounds of appeal was rendered in the case of Subhlakshmi Vanijya Pvt. Ltd., vs. CIT (ITA No. 1104/Kol/2014 A.Y. 2009-10) order dated 30.07.2015. He therefore submitted that the contentions raised in the grounds of appeal by the assessee have been dealt with by the Tribunal in the aforesaid orders and therefore the decision rendered in the said order should be followed by the Tribunal.
We have considered the rival submissions. Though initially the ld. Counsel for the assessee attempted to make submissions that the case of the assessee was different from 5
6 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 the cases decided by the Tribunal in the case of Subhlakshmi Vanijya Pvt. Ltd., vs. CIT (supra). But ultimately admitted that the facts and circumstances of the assessee’s case are mutatis mutandis similar to those resulted by the Tribunal in the said case.
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 cases led by Subhlakshmi Vanijya Pvt. Ltd. vs. CIT (ITA No.1104/Kol/2014) dated 30.7.2015 for the A.Y. 2009-10.
We find as has also been admitted by the ld. DR and the Ld AR 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 the assessee-company was not empowered to examine or make any addition 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 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 assessment order, by holding that :- i) the enquiry conducted by the AO in such cases can’t 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 making enquiries on the issues 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 circumstances, he was not obliged to positively indicate the deficiencies 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 can’t be said to have taken a possible view as the revision is sought to be done on the premise that the 6
7 M/s. Meera Merchandise Pvt. Ltd. A.Yr.2008-09 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. Further the law does not require the service 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 an opportunity of hearing to the assessee, which has been complied with in all such cases. D. Limitation period for passing order is to be counted 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 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 and not 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 the 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 submissions 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 revising order u/s passed u/s 147 of the Act.
It is noticed that all or some of the above conclusions are applicable to the case of the Assessee in this appeal. In view of the foregoing discussion and following the view taken in Subhlakshmi Vanijya Pvt. Ltd. (supra), we uphold the impugned order of the CIT.
Order pronounced in the Court on 02.06.2017.