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M/s Bhikshu Dealer Pvt. Ltd. and Others Versus Commissioner of Income Tax, Kolkata-II, Kolkata

2016 (1) TMI 453 - ITAT KOLKATA

Validity of revision u/s 263 - addition u/s 68 - Held that:- In view of the discussion and following the view taken in Subhlakshmi Vanijya Pvt. Ltd. [2015 (8) TMI 174 - ITAT KOLKATA ] we have drawn the following conclusions: -

A. Contention of the assessee that since the AO of the assesseecompany 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 an .....

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ding 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 .....

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tances 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.

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 .....

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, 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 .....

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013, ITA No1643/Kol/2013, ITA No.2510/Kol/2013 - Dated:- 3-11-2015 - SHRI R.S. SYAL, AM AND SHRI N.V. VASUDEVAN For The Assessee : None For The Department : Shri.S.Srivastava, CIT, DR. ORDER Per Bench Through these 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 to the captioned assessment years. Since all these appeals are based on largely sim .....

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be entertained. Today, when these appeals were called up for hearing, either there was no representation or adjournment applications have been filed. The ld. DR strongly opposed the granting of any further adjournment by stating that the issue raised in these appeals is covered against the assessed through numerous orders passed by the tribunal. We find that the issues raised in these appeals are squarely covered against the assessee by several orders passed by this bench including Subhlakshmi .....

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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 ld. DR and perused the relevant material on record. It is re .....

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CIT (ITA No. 1104/Kol/2014 A.Y. 2009-10), we have drawn the following conclusions: - A. Contention of the assessee that since the AO of the assesseecompany 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. B. Failure of the AO to give a logical con .....

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etion 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 .....

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