M/S MAGNUM COMMOTRADE PVT LTD,KOLKATA vs. C.I.T -I,KOLKATA, KOLKATA

ITA No.1312,1302,1250 & 1902/Kol/13 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES D : KOLKATA BEFORE SHRI RS. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA No.1312/Kol/2013 Assessment Year:2008-09 M/s.Subhlabh Sales Pvt Ltd. 8, Camac Strect, Kolkata-700012. Vs. Commissioner 0f Incomc 'Iax, Kolkata-I, AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AALCS 1767 L ITA No.1302/Kol/2013 Assessment Year:2008-09 M/s Magnum Commotrade Pvt. Ltd,, 39A_ Armenian Street, Ground Floor; Kolkata-700001_ Vs. Commissioner of Incomc Tax, Kolkata-I, AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069. PAN AAFCM 4403 M ITA No.1250/Kol/2013 Assessment Year:2009-10 Ms Presidency Mercantiles Pvt. Ltd. 3A, Chowringhee Place, 2' nd floor; Room No.54, Kolkata-700013. Vs. ITO, Ward 9(3), Kolkata; AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AAECD 6904 P ITA No.1902/Kol/2013 Assessment Year:2008-09 ITA No.1312,1302, 1250 & 1902/Kol/13 M/s.Navratra Commercial Pvt. Vs. Ltd. 31/1, Gopal Ch Mukherjee Lane, Howrah - 711 101_ Commissioner 0f Income Tax, Kolkata-], AayakarBhawan, P-7 , Chowringhee Square, Kolkata 700 069_ PAN AACCN 5258 J (Appellants (Respondents Assessee By Department By None S.Srivastava, CIR DR Date of 'Hearing Date of Pronouncement 4.11.2015 04 11.2015 ORDER Per Bench Through these appeals, different assessees assail the correctness of separate orders passed by the Commissioners of Income-tax (CIT) u/s 263 of the Income-tax Acl; 1961 (hercinalier also called thc Act' ) in 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 dispose them off by this consolidated order for the sake of convenience. ITA No.1312,1302, 1250 & 1902/Kol/13 2 Before taking up the disposal ol the instant appeals on merits, We consider it expedient to rccord that thesc havc carlier comc up for hearing on several occasions and thc assessees have sought adjournments on one pretext or the other: Today, when these appeals were called up for hearing; neither there was any adjournment application nor any body put in appearance at all. The Id. DR stated that the issue raised in thesc appcals is covcred against the assesscc by numerous orders passed by the tribunal. We also find that thc issucs raised in these appeals 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 these appeals for disposal on merits ex parte qua the assessee. 3_ Briefly stated the facts of all the cascs in this batch are similar inasmuch as returns were filed by such companies with meagre income; intimations were issued uls 143(1); thereafter notices uls 148 were issued either at the instance of such companies divulging a paltry escapement of income or otherwise assessment orders were passed uls 3 ITA No.1312,1302, 1250 & 1902/Kol/13 143(3) read with section 147 after making nominal additions and the AOs, during the course of such assessment proceedings, made some formal enquiries about sharcs issucd by such companies at huge premium by issuing notices u/s 133(6) t0 some of the shareholders and getting satisfied without any further investigation. The jurisdictional CITs have passed orders uls 263 in all such cases, which have been assailed before the Tribunal. 4_ We have heard the Id. 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. 5 . We find as has also been admitted by the Id. DR that facts and circumstances of the cases under consideration are mutatis mutandis similar to those decided earlier. In our aforesaid order in Subhlakshmi ITA No.1312,1302, 1250 & 1902/Kol/13 Vanijya Pvt. Ltd, VS. CIT (ITA No. 1104/K0l/2014 AY. 2009-10), we have drawn the following conclusions: A Contention of the assessee that since thc AO of thc assessce- company was not empowered t0 examine 0r 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 uls 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 1 bc construed as a proper enquiry; ii) CIT u/s 263 can sct aside thc asscssment order and dircct 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 Acl, 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; thc CIT was empowered t0 revise the assessment order iv) The order of thc CIT is not bascd on irrclevant 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 issuc of sharc 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 5 ITA No.1312,1302, 1250 & 1902/Kol/13 the premise that the AO did not make enquiry thereby rendering the assessment order crroneous and prejudicial to the interest of the revenue on that score itself. C In the given facts and circumstanccs of all such cascs, the notices uls 263 were properly served through affixturc or otherwise. Further the law does not require the service of notice uls 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 uls 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 uls 147 read with section 143(3), has the territorial jurisdiction to pass the order uls 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 docs not becomc invalid, when the proceedings involving the participation of the assessee were completed on an carlicr working day _ L Order uls 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. ITA No.1312,1302,1250 & 1902/Kol/13 J. Refusal by the Revenue to accept the written submissions 0f the after the conclusion of hearing cannot render the assessee sent order void ab initio At any rate, it is an irregularity. K. Scarch procecdings do not dcbar the CIT from revising order u/s passed uls 147 of the Acl: It is noticed that all or some of the above conclusions are applicable 6 to the appeals in this batch: In view of the foregoing 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 04.11.2015. [RS. SYAL] ACCOUNTANT MEMBER [N.V. VASUDEVAN] JUDICIAL MEMBER Dated, 4th November, 2015. RG ITA No.1312,1302,1250 & 1902/Kol/13