TMI Blog2017 (6) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 263. - Decided against assessee. - I.T.A No. 461/Kol/2014 - - - Dated:- 2-6-2017 - Sri N.V.Vasudevan, JM And Shri Waseem Ahmed, AM For The Appellant : Shri J.N.Gupta, FCA For The Respondent : Shri Niraj Kumar, CIT(DR) ORDER Per N.V.Vasudevan, JM This is an appeal by the Assessee against the order dated 21.01.2014 of CIT, (Kol-I), Kolkata passed u/s 263 of the Income Tax Act, 1961 (Act). 2. The revised grounds of appeal raised by the assessee read as follows :- 1. On the facts and in the circumstances of the case, the Ld CIT erred in ordering the Ld AO to reverify the Share Capital, although share capital was not the subject matter of assessment u/s. 148. 2. On the facts and in the circumstances of the case, the Ld CIT erred in invoking section 263. 3. On the facts and in the circumstances of the case, the Ld. CIT erred in holding/stating the following: i) AO erred by not examining all the Subscribers of Share Capital and AO erred by examining Subscribers of Share Capital only on test check basis. (ii) AO was required to serve notice through postal services only Reply by Subscribers of Share Capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as erroneous and prejudicial to the interest of the revenue for the following reasons :- 2. On perusal of assessment record it is noticed that the notices u/s l33(6) of the I.T. Act, 1961 shown on record as having been issued to the only shareholder i.. e. M/s. Whitestone Suppliers Pvt. Ltd, were not served by the A.O. through postal service. 3. From the perusal of Order Sheet It is noticed that Sri J.N. Gupta, FCA appeared as the A/R of the assessee company before the Assessing Officer. It is further gathered from the assessment record that the reply in response to notice u/s 133(6) of the I.T. Act, 1961 was received in the office of the A.O. from which it cannot be ascertained as to who appeared in response to the notice issued u/s 133(6) of the I.T. Act, 1961 as how the replies were received, as this is no where mentioned in the order sheet. It is also gathered from the Assessment Record that following few documents i.e. Assessment Order, Return of Income, notice u/s 48/143(2)/142(1) of the I.T. Act, 1961 office copy of notices u/s.133(6) of the I.T. Act, 1961, Order Sheet, list of share holders and details of investments were placed on record. Besides, thorough and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth-while business nor any reputation in terms of reliable management has attracted the subscribers to pay premium @ ₹ 490/- per share. This fact itself should have raised the curiosity of the A.O. to prompt him into action by conducting thorough enquiry into at least 2 to 3 layers to reach the source or the real investor. It is also observed that the P L a/c of this assessee shows an income before Tax of ₹ 2,270/- only. Hence this A.O. was required to make through enquiries in view of the peculiar facts circumstances of this case. 10. It is obvious that this has not been done by the A.O. Hence, it is a case where enquiries called for have not been carried out calling for intervention u/s 263 of the I. T. Act, 1961 being erroneous in so far as being prejudicial to the interests of Revenue. 6. The CIT thereafter set aside the order of the AO and directed the AO to make proper enquiries. The following were the relevant observations of the CIT :- 18. In this case the A.O. has completed the assessment u/s 143(3) read with 148 without even initiating / conducting complete enquiry into the subscription of the share capital and the large amount of premium during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal which are set out in the earlier part of this order. The ld. DR, on the other hand, pointed out that the present appeal filed by the assessee is identical to the several appeals decided by this Tribunal and the order in the lead case in such grounds of appeal was rendered in the case of Subhlakshmi Vanijya Pvt. Ltd., vs. CIT (ITA No. 1104/Kol/2014 A.Y. 2009-10) order dated 30.07.2015. He therefore submitted that the contentions raised in the grounds of appeal by the assessee have been dealt with by the Tribunal in the aforesaid orders and therefore the decision rendered in the said order should be followed by the Tribunal. 9. We have considered the rival submissions. Though initially the ld. Counsel for the assessee attempted to make submissions that the case of the assessee was different from the cases decided by the Tribunal in the case of Subhlakshmi Vanijya Pvt. Ltd., vs. CIT (supra). But ultimately admitted that the facts and circumstances of the assessee s case are mutatis mutandis similar to those resulted by the Tribunal in the said case. 10. We have perused the relevant material on record. It is relevant to mention that we have disposed of more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uire 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 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 to pass the order u/s 263 and not 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
