BHUMIKA FISCAL SERVICES PVT LTD,KOLKATA vs. I.T.O WD - 1(3),KOLKATA, KOLKATA

12 ~'( ^v ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA ITA No.1020/Kol/2013 Dposed Assessment Year:2008-09 M/s. Torrent Merchandise Vs Pvt Ltd: DJ Shah & Co,, 2, Elgin Road, Kolkata-700020_ Commissioner 0f Income Tax, Kolkata-III, AayakarBhawan; P-7 , Chowringhee Square, Kolkata 700 069_ PAN AACT 9236 E ITA No.1269/K0l/2013 Assessment Year:2008-09 Mls. Rasraj Dealers Pvt Ltd: Vs. DJ Shah & Co,, 2, Elgin Road, Kolkata-700020 _ Commissioner of Income Tax, Kolkata-L, AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AADCR 7489 N ITA No.308/Kol/2015 Assessment Year:2009-10 M/s. Rose Dealcom Pvt Ltd. Vs. DJ Shah & Co_ 2, Elgin Road, Kolkata-700020. Commissioner of Income Tax, Kolkata-L, AayakarBhawan, P-7 , Chowringhee Square, Kolkata 700 069_ PAN AAECR 1922 P OF LAW & MiNSTRY CUSTICE 0 2 TAX Man , &r) Val Rpii: ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 ITA No.1178/K0l/2013 Assessment Year:2008-09 Mls. Bhumika Fiscal Services Vs_ Commissioncr 0f Income Tax, Pvt Ltd. Kolkata-L, DJ Shah & Co , 2, Elgin Road, AayakarBhawan; Kolkata-700020_ P-7 Chowringhee Square, Kolkata 700 069_ PAN AACCS 6622B ITA No.962/K0l/2014 Hp Assessment Year:2010-11 M/s. Satyam Tradecom Vs. Pvt Ltd. DJ Shah & Co. 2, Elgin Road, Kolkata-700020_ Commissioner 0f Income Tax, Kolkata-II AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AACCS 6622B (Appellants) (Respondents) Assessee By Department By None Shri.S.Srivastava,CIT, DR_ Date of Hearing Date of Pronouncement 30.10.2015 30 .10.2015 ORDER Per Bench Through this batch of appeals, different assessees assail the correctness of separate orders passed by the Commissioners of Income- QF LAw & MiNSTRY Justic 2 #XE "GLLATE @eupl ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 tax (CIT) uls 263 of the Income-tax Act; 1961 (hereinafter also called 'thc Act' ) in rclation t0 thc captioned assessment ycars. Since all these appeals arc based on largely similar facts and common grounds 0f appeal, we are proceeding to dispose them off by this consolidated order for the sake of convenience. 2_ Before taking up the disposal of the instant appeals on merits, we consider it expedient to record that these appeals have earlier come up for hearing on several occasions and thc asscsscc has sought 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 opposed the grant of adjournment. We are also satisfied that it is not a good reason for the assessee to seek adjournment: If the change in counsel was really sought, the assessee ought to have done it well in advance and not when the case has come up for final hearing: It is further pertinent to mention that in all the above cases, simply adjournment applications have been filed without any representative OrLAWe JUSjIce MINISTRY 3 2 8 ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 from the assessee company putling in personal appearance belore 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 numerous cases including Subhlakshmi Vanijya Pvt. Ltd: VS. CIT (infra). Under these circumstances, we refuse to grant adjournment and take up the appeals for disposal on merits ex parte qua the assessee. 3 Briefly stated the facts of all the cases in this batch arc similar inasmuch as returns were filed by such companics with mcagre income; intimations were issued uls 14301); thereafter notices uls 148 werc issued either at the instance of such companies divulging a paltry escapement of income Or otherwise assessment orders were passed u/s 143(3) read with section 147 after making nominal additions and the AOs, during the course of such assessment proceedings, made somc formal enquiries about shares issued by such companies al huge premium by issuing notices u/s 133(6) t0 some of the shareholders and getting satisfied without any further investigation. The jurisdictional OF LAW 8 #7 0 ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 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 400 cases involving same issue through certain orders with the main order having been passed in & 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 Vanijya Pvt: Ltd. VS CIT (ITA No. 1104/Kol/2014 A.Y. 2009-10), we have drawn the following conclusions: A. Contention of the assesscc that since thc AO of the assesscc- company was nol empowered t0 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 [ 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 MINISTRY OF LAW & JUSTIc? 4 0 Tax_ Apeelue {RibiNAL 5 ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138.962/K/2014 B Failure of the AO t0 give a logical conclusion t0 the enquiry conducted by him gives power to thc CIT to revise such assessment order; by holding that i) the enquiry conducted by the AO in such cases can ( bc construed as a proper enquiry; 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 thc 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 n0 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 nol obliged to positively indicate the deliciencies in the assessment order on merits on the question 0l issue 0l share capital at a huge premium 5 and the AO in the given circumstances can 1 be said 10 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 itsell: C In the given facts and circumstances of all such cases, the notices uls 263 were properly served through aflixture 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 t0 give an opportunity of hearing to the assessee, which has bcen complied with in all such cases ETR: OF LAW & USTi 6 2 GT; ATe ~Ak ITA Nos.1020/K/2013,1269/K/2013,308/K/20151178/K/20138962/K/2014 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 nol 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 t0 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 0r 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 on an earlier working day . L. Order uls 263 cannot be declared as a nullity for the notice having not been signed by the CIT, when opportunity 0f 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 cannol render the order void ab initio At any rate, it is an irregularity . K Search proceedings do not debar the CIT from revising order uls passed uls 147 of the Act. MiNISTRY Of LAW & JUSTICE 0 Tax GRnT Grd Wbuny 594) APpelLate ITA Nos.1020/K/2013,- 1269/K/2013,308/K/20151178/K/20138.962/K/2014 6_ It is noticed that all or some of the above conclusions are applicable 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 30.10.2015. - [RS. SYAL] [N.V. VASUDEVAN] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated, 30th October; 2015_