TIRUPATI COTTEX PVT LTD.,KOLKATA vs. CIT - 1, KOLKATA, KOLKATA

. ITA No.1436/K0l/2013,1270/K/2013,1273/K/2013&322/K0l/2015 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA BEFORE SHRI RS. SYAL, AM & SHRI N:V. VASUDEVAN, JM ITA No.1436/K0l/2013 Assessment Year 2008-09 Rising Tracom Pvt: Ltd. D.J.Shah & Co , 2 Elgin Road, Kolkata-700020 _ PAN: AADCR 5116 Q Vs. Commissioner of Income Tax; Kolkata-II, AayakarBhawan, P-7, Chowringhcc Squarc, Kolkata 700 069_ ITA No.1270/Kol/2013 Assessment Year:2009-10 Mls Garud Credit & Holdings Vs. ITO, Ward-9(2), Kolkata, PvtLtd,, DJ.Shah & Cov, 2, AayakarBhawan, Elgin Road, Kolkata, Kolkata P-7, Chowringhee Square, 700020 Kolkata 5 700 069_ PAN AAACG 9791 P ITA No.1273/Kol/2013 Assessment Year:2008-09 Mls.Guinea Dealcom Pvt.Ltd_ Vs_ DJJ.Shah & Co. 2, Elgin Road, Kolkata, Kolkata 700020_ ITO, Ward 6(1), Kolkata, AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AACCJ 8037 G ITA No.322/K0l/2015 Du7pf ITA No.1436/K0l/2013,1270/K/2013,1273/K/20138322/K0l/2015 2 Assessment Year 2009 -10 M/S. Tirupati cottex Pvt. Vs. Commissioner 0f Income Tax, Ltd. Kolkata-II, DJ.Shah & Co_ AayakarBhawan, 2 Elgin Road, P-7, Chowringhee Square, Kolkata-700020- Kolkata 700 069_ PAN: AAMCS 7446 R (Appellants_ (Respondents) Assessee By Department By None Shri S.KSrivastava CIT, DR Date of Hearing 2.11.2015 03.11.2015 Date of Pronouncement ORDER Per_Bench Through this batch of appeals, different asscssccs assail the correctness of separate orders passed by the Commissioners of Income- tax (CIT) u/s 263 of the Income-tax Act; 1961 (hereinafier also called thc Act' ) in relation to the captioned assessment ycars. Since all these appeals are bascd On largely similar facts and common grounds of ITA No.: 1436/Kol/2013,1270/K/2013,1273/K/20138322/Ko//2015 3 appeal, we are procceding to dispose them off by this consolidated order for the sake of convenience. 2 Before taking up the disposal of the instant appeals on mcrits, wC consider it expedient t0 record that these appeals have earlier come up several occasions and the Asscssccs havc sought for hearing on adjournment on one pretext or the other. Today again, adjournment applications have been filed requesting for adjournment on the ground that another counsel is sought to be appointed. The Id. DR strongly the of adjournment. We are also salislied that it is nol a opposed grant for thc assessee to seek adjournment. If thc change in good reason counsel was really sought; the assessee ought to have donc it well in when the case has come up for final hearing: It is advance and not further pertinent to mention that in all the above cases, simply adjournment applications have been filed without any representative from the assesscc company putting in personal appearance before the tribunal. We find that the issues raised in these appeals arc squarely covered against the assessee in several orders passed by this bench in ITA No: 1436/Kol/2013,1270/K/2013,1273/K/20138322/K01/2015 including Subhlakshmi Vanijya Pvt: Lid VS. CIT (infra) numerous cases circumstances, we refuse to grant adjournment and take up Under these the appeals for disposal on merits ex parte qua the assessee. Brielly slaled the facts of all the cases in this batch are similar 3 inasmuch as returns were filed by such companies with mcagre income; 14301); thereafter notices uls 148 uls were intimations were issued of such companies divulging a paltry issued either at the instance assessment orders were passed uls escapement of income Or otherwise ; 14303) read with section 147 after making nominal additions and the AOs, during the course of such assessment procccdings, madc somc shares issued by such companics at huge formal enquiries about premium by issuing notices Ws 133(6) to some of the sharcholders and any further investigation: The jurisdictional getting satisfied without orders uls 263 in all such cases, which have been CITs have passed assailed before thc Tribunal. 4 We have heard the Id. DR and perused the relevant material on ITA No.1436/Kol/2013,1270/K/2013,1273/K/20138322/K0l/2015 5 record. It is relevant t0 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 thc 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 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 sincc thc AO of the assesscc - company was not empowered to 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 cascs can 1 be construcd as a proper enquiry; ITA No.1436/K0l/2013,1270/K/2013,1273/K/20138322/K0//2015 6 ii) CIT u/s 263 can set aside the assessment order and direct the AO t0 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, thc CIT was empowered t0 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 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 t0 the interest of the revenue on that score itself: C In the given facts and circumstances of all such cases, thc notices u/s 263 were properly served through affixture 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 f 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 ITA No: 1436/Kol/2013,1270/K/2013,1273/K/20138322/Kol/2015 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 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 thc amalgamating company But; where the intention of thc assessec is Lo defraud the Revenue by either filing rcturns, afier amalgamation; in the old name or otherwise, then the order passed in the old name is valid. H. Order passed uls 263 on a non-working day does not become invalid, when the proceedings involving the participation of the assessee were completed 0n an earlier working day . L 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 0f 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 uls 147 of the Act 6_ It is noticed that all o some of the above conclusions arc applicable to the In view of the foregoing discussion and appeals in this batch: following the vicw taken in Subhlakshmi Vanijya Pvt: Ltd (supra) , WC uphold all the impugned orders. ITA No.1436/Kol/2013,1270/K/2013,1273/K/20138322/K0l/2015 8 7. In the result, all the appeals are dismissed. The order pronounced in the open court on 03.11.2015. - - [RS. SYAL] [N.V. VASUDEVAN JUDICIAL MEMBER ACCOUNTANT MEMBER Dated, 3rd_ November; 2015. RG