JUSTIFY BARTER PVT LTD,KOLKATA vs. I.T.O WD - 6(1),KOLKATA, KOLKATA

04 ",6 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES D : KOLKATA BEFORE SHRI RS. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA No.1268/K0l/2013 sxpbae Assessment Year 2008-09 Topaz Realcon Pvt: Ltd. Vs. Commissioner 0f Income Tax; D J Shah & Co , Kolkata-II, 2, Elgin Road, AayakarBhawan, Kolkata- 700020. P-7 , Chowringhee Square, Kolkata 700 069_ PAN AACCT 8145 ITA No.1267/K0l/2013 Assessment Year 2008-09 Prerna Distributors Pvt Ltd_ Vs. Commissioner of Income Tax, D J Shah & Co., Kolkata-II, 2, Elgin Road, AayakarBhawan, Kolkata- 700020. P-7, Chowringhee Square, Kolkata 700 069_ PAN AAECP 4103 A ITA No.1264/K0l/2013 Assessment Year 2008-09 Justify Barter P Ltd, Vs. Commissioner 0f Income Tax, D J Shah & Co, Kolkata-II, 2, Elgin Road_ AayakarBhawan, Kolkata- 700020 P-7, Chowringhee Square, Kolkata 700 069_ PAN AABCJ 8086 B ITA No.1238/K0l/2014 Assessment Year 2009-10 Mukut Buildcon Pvt. Ltd. Commissioner of Income Tax, D J Shah & Co , Kolkata-II, OF LAW & Justice MiNSTRY 0 0 3OTTT Eed TAX Iribunale APPELLATE Qate a€ (earing_ Dale 01 Pronouncement 30.10.201 5 ORDER 34a8a = JCIGI( assessees correctness of assai] the separate orders passed by the Commiscinna= 1"1 DOZ U 1~~z 3O7a4 d" Fa} ZR88 *6 e83 "the Act') in relation Io &he caprioned assessment yearS Sipe 37ntorud ~iine A 2 Kalyan Bhavan, 2, Elgin Road Kolkata- 700020 AayakarBhawan, P-7 , Chowringhee Square, Kolkata 700 069_ PAN AAFCM 9261 R ITA No.1437/K0l/2013 Assessment Year 2008-09 Skylark Commodeal Pvt Ltd. D J Shah & Co 2, Elgin Road, Kolkata- 700020. Commissioner 0f Income Tax, Kolkata-II, AayakarBhawan, P-7, Chowringhee Square; Kolkata 700 069_ PAN AAMCS 0144 E (Appellant) Respondent Assessee None Department by Shri Niraj Kumar; CIT Date of Hearing 28.10.2015 Date of Pronouncement 30.10.2015 ORDER PER BENCH Through this batch of appeals, different assessces assail the correctness of separate orders passed by the Commissioncrs of Income- tax (CIT) us 263 of the Income-tax Act; 1961 (hereinafier also called the Act') in relation to the captioned assessment years. Since all these Ry OF LAW & Justice "satt 674a ~qinal 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 0f convenience. 2 _ Beforc 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 the assessee 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: Thc 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 from the assessee company putting in personal appearance before the tribunal. We find that the issues raised in these appeals are squarely OF LAW & NSTRY Justice Kol AT 3 a IribunAl APPE ATE 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 are similar inasmuch as returns were filed by such companies with meagre income; intimations were issued uls 143(1); 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 some formal enquiries about shares issued by such companies at huge premium by issuing notices u/s 133(6) to some 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 OFLAW & NVSTRY Justice 4 0 687 J 74 Tribunal Drr' 5 record. It is relevant 10 mention that we have disposed of more than 400 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 arc mutatis mutandis similar to those decided earlier. In our aforesaid order in Subhlakshmi Vanijya Pvt: Ltd: "5 VS_ CIT (ITA No. 1104/K0l/2014 A.Y. 2009-10), we have drawn the following conclusions: A. Contention of the assessee that since the AO of the assessce- company was not empowered to examine or make any addition on account of receipt of share capital with O without premium before amendment t0 section 68 by the Finance Act; 2012 W.e [ 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 t0 revise such assessment order; by holding that i) the enquiry conducted by the AO in such cascs can L 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 610: Justice 0 3 TriruNall Tr jurisdiction of the AO in making enquiries on the issues or matters as he considers fit in terms 0f section 142(1) and 143(2) of the Act, which is relevant only up t0 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 t0 revise the assessment order ; iv) The order of the CIT is nol 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 0f 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 lo the interest of the revenue on that score itself: C. In the given facts and circumstances 0f all such cases, thc noticcs uls 263 were properly served through affixture or otherwise: Further the law does not require the service of notice W/s 263 strictly as per the terms 0f 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 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 W/s 147 read with section 143(3), has the territorial jurisdiction t0 pass TSTRy OF LAW & Ustice 0 7at 2' *+S 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 . 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. J. Refusal by the Revenue to accept the written submissions of the assessee sent after the conclusion of hearing cannot render thc 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. 6_ It is noticed that all or some of the above conclusions arc 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. OF LAW & Justice 9 Wn 74X APPELLATE IRIBUNAL' 7 _ In the result; all the appeals are dismissed. The order pronounced in the open court on 30.10.2015. - [N.V. VASUDEVAN] JUDICIAL MEMBER RS. SYAL] ACCOUNTANT MEMBER Dated, 30th October, 2015.