TMI Blog2018 (7) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 801 - CALCUTTA HIGH COURT) and the judgement of the Hon’ble Bombay High Court and Tribunals on this issue and decide the issue in accordance with law - Appeal of the assessee dismissed. - I.T.A. No. 975/Kol/2014 - - - Dated:- 4-7-2018 - Sri J. Sudhakar Reddy, Accountant Member And Sri S.S. Viswanethra Ravi, Judicial Member For The assessee : Shri Sujoy Sen, Advocate, appeared For The Revenue : Md. Usman, CIT, D/R, appearing ORDER Per J. SudhakarReddy :- This is an appeal filed by the assessee directed against the order of the Commissioner of Income Tax Kolkata-II, Kolkata, (hereinafter the Ld. CIT ), dt. 05/03/2014, passed u/s 263 of the Income Tax Act, 1961 (hereinafter the Act ), relating to Assessment Year 2009-10. 2. The facts of the case are brought out by the ld. CIT at pages 1 2 of his order which is extracted for ready reference:- In the instant case the return of income was filed declaring income of ₹ 820/-.The Balance Sheet of the company shows share capital of RS.9,56,00,000/- and Reserve (Share premium) of RS.9,17,76,000/-. Subsequently, the assessee filed a letter before the A.O. on 23.08.2011 stating that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us. 5. The ld. Counsel for the assessee, Shri Sujoy Sen, objects to this order u/s 263, mainly on two grounds. The first is that principles of natural justice were not followed and the assessee was not given adequate opportunity to represent its case before the Assessing Officer. Secondly, he objected to the statement made by the ld. CIT at page 3 4 of his order that, before the amendment to Section 68 of the Act, brought in w.e.f. Assessment Year 2013-14, the addition in question i.e. premium charged on shares issued can be made under the deeming provisions of Section 68 of the Act. He submitted that this is against the proposition of law laid down by the Hon ble Bombay High Court in the case of M/s. Vodafone India Services Pvt. Ltd vs. Addl. CIT reported in 368 ITR 001(Bom.) and in the case of CIT vs Gagandeep Infrastructure Ltd (2017) 394 ITR 680. The ld. D/R, on the other hand, relies on the judgment of the Kolkata Bench of the Tribunal in the case of M/s. Subhlakshmi Vanijya Pvt. Ltd. Vs. Commissioner of Income Tax-I, Kolkata, in ITA No. 1104/Kol/2014, dt. 30.07.2015 and on the judgment of the Hon ble Jurisdictional High Court in the case of Rajmandir Estates Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted SLPs dismissed all the SLPs. In view of the above we do not find any merits in this appeal by the assessee and accordingly the same is dismissed. 8. In the result the appeal by the assessee is dismissed. 7. Coming to the objections of the assessee on the ground of natural justice, we find that the assessee was given a showcause notice on 27/01/2014 and that the assessee filed written submissions on 19/02/2014 and the order was passed by the ld. CIT on 05/03/2014. In the written submissions filed, the assessee has not sought any opportunity of being heard. It was open for the assessee to appear before the ld. CIT and make his submissions. In our view, there is no violation of principles of natural justice. Hence this ground is dismissed. 8. The second issue raised before us is that the amendment to Section 68 of the Act, by way of introduction of a proviso which is effective from the Assessment Year 2013-14, is retrospective or prospective. 8.1. The ld. CIT held that it is a well settled position of law that even before the amendment to Section 68 / 56(2) of the Act, effective only from Assessment Year 2013-14, the genuineness of the share capital in a Private ..... X X X X Extracts X X X X X X X X Extracts X X X X
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