DHEERA VINIMAY PVT LTD,KOLKATA vs. I.T.O WD - 9(1),KOLKATA, KOLKATA

Assessee : None Department by : Shri Niraj Kumar, CIT ORDER Per Bench Through this batch of appeals, different assessees assail the correctness of separate orders passed by the Commissioners of Income- 1271/Kol/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/Kol/2014 3 tax (CIT) u/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 largely similar facts and common grounds of 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 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. The ld. 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 1271/Kol/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/Kol/2014 4 from the assessee company putting in personal appearance before the tribunal. We find that the issues raised in these appeals are 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.

A. Contention of the assessee that since the AO of the assessee- company was not empowered to 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.f. 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.

1271/Kol/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/Kol/2014 6 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’t 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 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 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 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 to the interest of the revenue on that score itself. C. In the given facts and circumstances of all such cases, the notices u/s 263 were properly served through affixture 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 to give an opportunity of hearing to the assessee, which has been complied with in all such cases.

1271/Kol/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/Kol/2014 7 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. E. The CIT having jurisdiction over the AO who passed order u/s 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 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. 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 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 u/s 147 of the Act.

1271/Kol/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/Kol/2014 8 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.