TMI Blog2016 (11) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is treated as partly allowed. - I.T.A No. 1179/Kol/2016 - - - Dated:- 10-8-2016 - Shri P. M. Jagtap, AM And Sri N. V. Vasudevan, JM For the Appellant : Shri S.M.Surana, Advocate For the Respondent : None ORDER Per N. V. Vasudevan, JM This is an appeal by the Assessee against the order dated 25.02.2016 of Pr.CIT- 3, Kolkata passed u/s 263 of the I.T.Act relating to AY 2012-13. 2. The Assessee is a company. The nature of business of the assessee is making investments. For A.Y.2012-13 the assessee filed return of income on 10.09.2012 declaring a loss of ₹ 25,850/-. An order of assessment u/s 143(3) of the Act was passed by the AO on 26.03.2014. The assessee had during the previous year allotted 32,00,000 lakhs number of equity shares of Re.1/- per share. Again during the previous year the assessee company had allotted 2,91,750 number of equity shares of Re.1/- per share at a premium of ₹ 999/- per share. Thus the assessee received a sum of ₹ 2,91,750/- towards share capital and ₹ 29,14,58,250/- towards share premium. 3. The AO while framing the assessment u/s 143 (3) of the Act accepted the receipt of share capital by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verifiable. As has been pointed out above, there was no justification for issue of share at huge premium which clearly indicated that the transactions were not genuine thereby attracting provisions of sec. 68 of IT.Act. Yet, as has been pointed out in the show cause notice, the A.O. did not make any enquiry to find out whether the transaction was genuine. The A.O. issued notices to subscribers of shares u/s. 133(6) on 03.02.2014 06.02.2014 requisitioning amongst other, audit report, total amount of investment in shares along with bank statement' and details of premium paid and sources of fund thereof and copy of .share application and share allotment advice. It is not under stood as to how from these documents/details, the genuineness of the transaction can be ascertained. The A.O. did not make any further enquiry on receipt of these details which were simply placed in the assessment record. In some cases such as M/s. Fairland Merchants Private Limited, the copy of bank statement was not submitted as there is no such mention in the letter dt, 28.02.2014 despite the A.O. as per notice dt. 06.02.2014 requisioning the bank statement for the relevant period. This clearly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation with regard to the initiation of the proceedings and reasons therefor were communicated to the appellant and as such the order is bad in law. Keeping in mind the issue raised in the additional ground is a legal ground and could be decided on the basis of facts available on record and keeping in view of the decision of the Hon ble Supreme Court in the case of National Thermal Power Corporation 229 ITR 383, we admit the additional ground for adjudication. 8. We have heard the submissions made on behalf of the assessee. This Tribunal had dealt with the identical case in which identical issues had been considered and decided in the case of Subhlakshmi Vanijya Pvt. Ltd. Vs CIT in ITA No.1104/Kol/2014. This Tribunal has drawn the following conclusions :- 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. B. Failure of the AO to give a logical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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. 9. The ld. Counsel for the assesee however submitted that in the group of cases decided by the Tribunal in which the lead order has been passed in the case of Subhlakshmi Vanijya Pvt. Ltd. (supra), the CIT in exercise of his powers u/s 263 of the Act had not directed the addition of the sum received as share capital and share premium but has set aside the order of AO and directed the AO to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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