M/S SALT LAKE ENERGY PVT LTD.,KOLKATA vs. CIT, KOLKATA-1I, KOLKATA

''R IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES D : KOLKATA BEFORE SHRI R.S. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA No.2213/K0l/2014 pspaed Assessment Year:2009-10 M/s Tara Vinimay Pvt: Ltd. P- Vs. 101, Balaram Dey Street; Ground Floor; Kolkata- 700006. Commissioner of Income Tax; Kolkata-III AayakarBhawan; P-7, Chowringhce Square, Kolkata 700 069_ PAN AAACT 9520 D ITA No.906/Kol/2014 Assessment Year:2010-11 Mls.Salt Lake Encrgy Pvt: Ltd, 28, Strand Road, 2nd floor; Kolkata-70000 1 . Vs. Commissioncr of Incomc TTax, Kolkata-II, AayakarBhawan, P-7 , Chowringhee Square, Kolkata 700 069_ PAN AADCS 5605 F (Appellants Asscssec By Department By (Respondents _ Nonc Shri S.KSrivastava CIT, DR. Date of Hcaring Datc of Pronouncement 2.11.2015 03.11.2015 ORDER Per Bench ITA No.2213/K0l/2014 & 906/K0l/2014 Through these appeals, different assessees assail the correctness of separate orders passed by the Commissioners 0f Income-tax (CIT) W/s 263 of the Income-tax Act; 1961 (hereinafter also called the Act' ) in relation to the captioned assessment years. Since all these appeals are based on largcly similar facts and common grounds ol appcal, WC are proceeding to dispose them off by this consolidatcd order for the sake of convenience. 2 Before taking up the disposal of the instant appeals on merits, we expedient to record that these appeals have earlier come up consider it several occasions and the asscssccs havc sought for hearing on pretext or the other. Today, when these appeals adjournments on one were called for hearing none appeared on behalf of the assesscess nor any adjournment applications have been filed: We find that the issues 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 the appeals for disposal on merits ex parte qua the assessee. 2 ITA No.2213/Kol/2014 & 906/Kol/2014 3 Briefly stated the facts of both the cases in this batch are similar inasmuch as rclurns were filed by such companics with meagre income; 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 ol income or Otherwise 5 asscssmcnt ordcrs wcre uls 143(3) read with section 147 after making nominal passed additions and the AOs, during the course of such assessment proceedings, made some formal enquiries about shares issued by such companies at hugc premium by issuing notices u/s 133(6) t0 somc of the shareholders and getting satisfied without any further investigation. The jurisdictional CITs have passed orders u/s 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 bccn passed in a group of cases lcd by Subhlakshmi Vanijya Pvt. Ltd VS. CIT (ITA No.1104/Kol/2014) dated 30.7.2015 for the AY. 2009-10. 3 ITA No.2213/K0l/2014 & 906/Kol/2014 5 We find as has also been admitted by the ld. DR that facts and circumstances of the cases under consideration arc mutatis mutandis similar to thosc 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: As Contention of the assessee that since the AO of the assessce- company was not empowered to examine Or makc any addition on account of receipt of share capital with or withoul premium before amendment to section 68 by the Finance Act, 2012 W.e.f. AY. 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 thc enquiry conducted by him gives power to the CIT to rcvise 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 uls 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 ordcr iv) The order of the CIT is not based on irrclevant considerations and further in the present circumstances, he was not obliged to positively indicate the deficiencies in ITA No.2213/K0l/2014 & 906/K0l/2014 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 t0 be done on the premise that the AO did not make enquiry thereby rendering the assessment order erroncous and prcjudicial to the interest of the revenue on that score itself: C. In the given facts and circumstances of all such cases, the notices uls 263 were properly served through affixturc or otherwise. Further the law does not require the scrvice 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 givc 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 thc cascs, thc orders have been passed within the time limit: E. The CIT having jurisdiction over the AO who passed order W/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 thc old name is valid. H. Order passed u/s 263 on a non-working day does not become invalid, whcn the proceedings involving the participation of the assessee were completed on an earlier working day _ ITA No.2213/K0l/2014 & 906/Kol/2014 5 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 assessec sent after the conclusion of hearing cannot render the order void ab initio_ At any rate, it is an irregularity. K Scarch proceedings do not debar the CIT from revising order u/s passed u/s 147 of the Act: 6_ It is noticed that all or some of the abovc conclusions are applicable to instant two appeals. In view of the foregoing discussion and following the view taken in Subhlakshmi Vanijya Pvt. Ltd (supra) , we uphold both the impugned orders. 7_ In the result; both the appeals are dismissed. The order pronounced in the open court on 03.11.2015. - - [RS. SYAL] ACCOUNTANT MEMBER [N.V. VASUDEVAN] JUDICIAL MEMBER Dated; 3rd November; 2015_ RG Copy forwarded t0: Appellant Respondent CIT CIT (A) DR, ITAT AR, ITAT, Kolkata. ITA No.2213/K0l/2014 & 906/Kol/2014