M/S EVEREST DEALER PRIVATE LIMITED,KOLKATA vs. C.I.T KOLKATA - III, KOLKATA

ITA No.1757 & 1752/K0l/13 & 1077/Kol/14 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH 'D" KOLKATA BEFORE SHRI RS. SYAL, AM & SHRI N.V. VASUDEVAN, JM ITA No.1757/K0l/2013 Assessment Year 2008-09 Mls. Growfast Agency Private Vs. Commissioner 0f Income Tax; Ltd. Mr.Rajan Poddar; FCA; Kolkata-II, Mls.Poddar & Associates AayakarBhawan; Chartered Accountants, P-7 , Chowringhee Square, 9/12, Lal Bazar Street, Kolkata 700 069. Mercantile Bulding (First Floor) , Block-D, Kolkata-700001 PAN: AACCG 9928 J ITA No.1752/Kol/2013 Assessment Ycar 2008-09 MIs. Everest Dealer Privatc Vs. Commissioncr 0f Income Tax; Lid,, MrRajan Poddar, FCA, Kolkata-II, AayakarBhawan, M/s.Poddar & Associates P-7, Chowringhee Square, Kolkata 700 069. Chartered Accountants, 9/12,Lal Bazar Street; Mercantile Bulding (First Floor), Block-D,Kolkata- 700001 _ PAN:AABCE 8698 N (Appellant) (Respondent) Department By: Mr.Neeraj Kumar, CIT DR Assessee By: Mr.Ganesh Dutt Advocate, ITA No.1077/Kol/2014 ITA No.1757 & 1752/K0l/13 & 1077/Kol/14 Assessment Year 2009-10 Ms. Prudential Dealcom Pv.Ltd,, 9/12, Lal Bazar Street; 2nd floor; E-Block; Kolkata-700 001 Vs. Commissioncr of Income Tax; Kolkata-II, AayakarBhawan; P-7, Chowringhee Square Kolkata 700 069_ PAN:AAECP 5044 L (Appellant) (Respondent) Department By: Mr.Neeraj Kumar, CIT DR Assessee By: Mr Marus Tiwari FCA Date of Hearing: 28.10.2015 Date of Pronouncement: 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-tax (CIT) u/s 263 of the Income-tax Act; 1961 (hereinafter also called the Act') in relation t0 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 ITA No.1757 & 1752/K0l/13 & 1077/Kol/14 2_ Briefly stated the facts of all thc cases in this batch arc similar inasmuch as returns were filed by such companies with meagre income; intimations were issued uls 143(1); thereafter notices u/s 148 were issued either at the instance of such companies divulging a paltry escapement of income O otherwise assessment orders were passed uls 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) t0 some of the shareholders and getting satisfied without any further investigation: The jurisdictional CITs have passed orders ul/s 263 in all such cases, which have been assailed before the Tribunal. 3_ We have heard the rival submissions 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 a group of cases led by Subhlakshmi Vanijya Pvt. Ltd. VS. CIT (ITA No.1104/Kol/2014) 3 ITA No.1757 & 1752/Kol/13 & 1077/Kol/14 dated 30.7.2015 for the A.Y. 2009-10. 4 Both the sides have fairly admitted that facts and circumstances of the cases under consideration are mutatis mutandis similar to those for certain issues which we will advert to a decided earlier; except little later: In our aforesaid order in Subhlakshmi Vanijya Pvt: Ltd. " No. 1104/Kol/2014 A.Y. 2009-10), we havc drawn the vs. CIT (ITA following conclusions: A Contention of the assessee that since the AO of the was not empowered to examine or assessee-company make any addition on account of receipt of share capital with or without premium before amendment to section 68 by the Finance Act; 2012 We.f: A.Y. 2013-14 and hence the CIT by means of impugned order Ws 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 A0 in such cases can't be construed as a proper enquiry; ii) CIT uls 263 can set aside the assessment order and direct the AO to conduct a thorough enquiry, notwithstanding the jurisdiction of the Ao in on the issues or matters as he making enquiries considers fit in terms of section 142(1) and 143(2) ITA No.1757 & 1752/K0l/13 & 1077/Kol/14 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 1 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 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 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 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 uls 147 read with sec. 143(3) and not the date of Intimation issued u/s 143(1) of 5 ITA No.1757 & 1752/K0l/13 & 1077/Kol/14 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 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 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 uls passed uls 147 of the Act: ITA No.1757 & 1752/Kol/13 & 1077/Kol/14 5_ It is noticed that all Or some of the above conclusions drawn are applicable to the appeals in this batch: Following the view taken in the lead orders, we uphold all the impugned orders. 6_ In the result all the appeals are dismissed. The order pronounced in the open court on 30.10.2015. - - [R.S. SYAL] ACCOUNTANT MEMBER Dated, 30th October; 2015. [N.V. VASUDEVAN] JUDICIAL MEMBER RG