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Income Tax Appellate Tribunal, KOLKATA BENCHES :D : KOLKATA
Before: SHRI R.S. SYAL, AM & SHRI N.V. VASUDEVAN, JM
(Appellant) (Respondent) Assessee By : None S.Srivastava, CIT DR Department By : Date of Hearing : 5.11.2015 Date of Pronouncement : 05.11.2015 ORDER Per Bench
Through this appeal, the assessee assails the correctness of the order dt. 28.3.2013 passed by the Commissioners of Income-tax (CIT) u/s 263 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2009-10.
Before taking up the disposal of the instant appeal on merits, we consider it expedient to record that this appeal earlier come up for hearing on several occasions and the assessee sought adjournments on one pretext or the other. A few days back, when this was fixed for hearing, Sh. Subhash Agarwal, Advocate intimated that he has withdrawn his Power of attorney. The appeal was adjourned and the Registry was directed to intimate the assessee directly by Speed post and also by telephone, if possible. The Registry has done the needful. Now, when this appeal was called up for hearing, neither there was any adjournment application nor any body put in appearance at all. The ld. DR stated that the issues raised in this appeal are covered against the assessee by numerous orders passed by this tribunal. We also find that the issues raised in this appeal are squarely covered against the assessee by several orders passed by this bench including Subhlakshmi Vanijya Pvt. Ltd. vs. CIT (infra). Under these circumstances, we are taking up the appeal for disposal on merits ex parte qua the assessee.
Briefly stated the facts of the case are that the return was filed by the assessee company with Nil income; intimation was issued u/s 143(1); thereafter notices u/s 148 was issued at the instance of the assessee divulging a paltry escapement of income to the tune of Rs.83,800; assessment order was passed u/s 143(3) read with section 147 after making addition of Rs.83,800 and the AO, during the course of such assessment proceedings, made some formal enquiries about shares issued by the assessee company at huge premium by issuing notices u/s 133(6) to some of the shareholders and getting satisfied without any further investigation. The jurisdictional CIT has passed orders u/s 263, which has been assailed before the Tribunal.
We have heard the ld. DR and 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 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 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 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 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 some of the above conclusions are applicable to the appeal under consideration. In view of the foregoing discussion and following the view taken in Subhlakshmi Vanijya Pvt. Ltd. (supra), we uphold the impugned order.