NANDAN VANIJYA PVT. LTD,KOLKATA vs. C.I.T, II, KOLKATA, KOLKATA

1271/K0l/2013,1266/Kol/2013,1507/Kol/2013,1272/Kol/2013& 1139/K0l/2014 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES : D : KOLKATA BEFORE SHRI RS. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA No.1271/K0l/2013 Mwvd Assessment Year:2009-10 M/s Dheera Vinimay Pvt. Ltd Vs. DJ.Shah & Co " Elgin Road, Kolkata-700020 Commissioner 0f Income Tax, Kolkata-III AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AADCD 0773D ITA No.1266/Kol/2013 Assessment Year:2008-09 M/s Mansarobar Vanijya Pvt Ltd_ DJJ.Shah & Co,, Elgin Road, Kolkata-700020 _ Vs Commissioner of Income Tax, Kolkata-I, AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AAFCM 211E ITA No.1507/Kol/2013 Assessment Year:2008-09 M/s Nandan Vanijya Pvt Ltd_ DJJ.Shah & Co , Elgin Road, Kolkata-700020_ Vs. Commissioner 0f Income Tax; Kolkata-II, AayakarBhawan, P-7, Chowringhee Square, PAN AACCN 6107 G RY % LAW & 'Kolkata 700 069 8 77nn IRiBUNAL Ellate 1271/K0l/2013,1266/K0l/2013,1507/K0l/2013,1272/K0l/2013& 1139/K0l/2014 2 ITA No.1272/K0l/2013 Assessment Year:2009-10 M/sBhavana Suppliers Pvt.Ltd DJ.Shah & Co , Elgin Road, Kolkata-700020 Vs. Commissioner 0f Income Tax; Kolkata-III AayakarBhawan, P-7, Chowringhee Square, Kolkata 700 069_ PAN AADCD 2315 F ITA No.1139/K0l/2014 Assessment Year:2009-10 M/s Velocity Commercial Pvt Ltd " CIO.RSVPC & Co,, 41A, Ach J.C Bose Road, Suite No.613 Kolkata-700 014. Vs. Commissioner of Income Tax, Kolkata-III AayakarBhawan, P-7 Chowringhee Square, Kolkata 700 069_ PAN AACCY 8335 J (Appellants, (Respondents) Date of Hearing Date of Pronouncement 29.10.2015 30.10.2015 Assessee None Department by Shri Niraj Kumar, CIT ORDER Per Bench Through this batch of appeals, different assessees assail the OF LAW & correctness 0f separate orders passed by the tommissioners of Income- 1 1 TAX Appellale JNBUNAL' 1271/K0l/2013,1266/K0l/2013,1507/K0l/2013,1272/K0l/2013& 1139/Kol/2014 3 tax (CIT) u/s 263 of the Income-tax Act, 1961 (hereinafier also called the Act' ) in relation t0 the captioned assessment years. Since all these appeals are 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 the assessee has sought adjournment on one pretext or the other. Today again, adjournment applications have been filed requesting for adjournment on thc 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 t0 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 OF LAW & MNSTRY Justice 0 elinte TribunALA 1271/K0l/2013,1266/K0//2013,1507/K0l/2013,1272/K0l/2013& 1139/K0l/2014 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. 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 14301); thereafter notices uls 148 were 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 al huge premium by issuing notices u/s 133(6) to some of the shareholders and getting satisfied without any further investigation The jurisdictional OF LAW & JusTICE' MiNISTRY 2 6 IX IRBUNAL APELLATI 1271/K0l/2013,1266/K0l/2013,1507/Kol/2013,1272/K0l/2013& 1139/K0l/2014 5 CITs have passed orders uls 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 t0 mention that we have disposed 0f 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), ' WC have drawn the following conclusions: A. Contention of the assessee that since the AO 0f the assessee- company was not empowered to examine or make any addition on account of receipt of share capital with or without premium belore amendment to section 68 by the Finance Acl, 2012 W.e.[ A.Y. 2013-14 and hence the CIT by means 0f impugned order u/s 263 could not have directed the AO to do SO, is unsustainable: LAW & JUSTICE MiNIS 1 2 8r 37 4X TRE IBUNAL APPELLATE 1271/K0l/2013,1266/Kol/2013,1507/Kol/2013,1272/K0l/2013& 1139/Kol/2014 6 B Failure of the AO t0 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 ( 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, hc was not obliged to positively indicate the deficiencies in the assessment order on merits on the question 0f issue 0f 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 t0 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 uls 263 were properly served through affixturc or otherwise. Further the law does not require the service ol notice u/s 263 strictly as per the terms of section 282 of the Acl 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 of LAW & cases. JUsTice NNiSTRV 0 IAX IRBUNAL Azilale 1271/K0l/2013,1266/K0l/2013,1507/K0l/2013,1272/K0l/2013& 1139/Kol/2014 D Limitation period for passing order is t0 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 t0 pass the order uls 263 andnot other CIT. F Addition in the hands of a company can be madce uls 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 thc assessee were completed on 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 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. LAw & "JUSTICE 6 APPELU TE Ti~tr 1271/K0l/2013,1266/K0l/2013,1507/K0l/2013,1272/K0l/2013& 1139/K0l/2014 8 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), wC 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_ [N.V. VASUDEVAN] JUDICIAL MEMBER [RS. SYAL] ACCOUNTANT MEMBER Dated, 30 th October, 2015 RG