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2016 (1) TMI 487 - ITAT KOLKATA

2016 (1) TMI 487 - ITAT KOLKATA - TMI - 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 .....

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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 .....

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>
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.

D. Limitation period for passing order is to be counted from the date of passing the .....

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ration.

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.

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- ITA No.1551/Kol/2013, ITA No.1546/Kol/2013, ITA No.1699/Kol/2013, ITA No.1701/Kol/2013, ITA No..1619/Kol/2013, ITA No.1622/Kol/2013,ITA No.136/Kol/2015 - Dated:- 3-11-2015 - N.V. VASUDEVAN, JUDICIAL MEMBER AND R.S. SYAL, ACCOUNTANT MEMBER For The Assessee : Mr.Subhash Agarwal, Advocate For The Department : Shri.S.Srivastava, CIT, DR. ORDER Through this batch of appeals, different assessees assail the correctness of separate orders passed by the Commissioners of Incometax (CIT) u/s 263 of the .....

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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 .....

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gued that these grounds were omitted to be taken in the Memorandum of the concerned appeals. He stated that since these grounds involve substantial question of law, the same be admitted. The ld. DR did not raise any serious objection to the admission of the above additional grounds. 5. After considering the submissions from both the sides, we are satisfied that the above grounds deal only with the questions of law arising from the facts on record. Following the judgment of the Hon ble Supreme Co .....

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hose already considered and decided by the tribunal in the above referred case and he was raising these grounds for keeping the matter alive before the Hon ble High Court. In view of the above submissions, we dismiss these additional grounds of appeal. 7. Qua the grounds taken up in the memorandum of respective appeals, 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 500 cases involving same issue throu .....

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f 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 conclusion to the enquiry conducted by him gives power to the CIT to revise such assessment order, by ho .....

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od 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 di .....

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