TaxTMI 
TaxTMI 
2015 (12) TMI 1241
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....014, ITA No.1215/Kol/2014 - -<br>Income Tax<br>R. S. Syal, AM And N. V. Vasudevan, JM For the Appellant : Mr Sujay Sen, Adv For the Respondent : Shri S Srivastava, CIT-DR ORDER Per Bench Appeal in Subhdhan Commodities P. Ltd. VS. CIT (ITA no. 171/K/2015) is delayed by 43 days. The assessed has filed petition for condonation of delay. We are satisfied with the reasons of delay. As such, the delay is condoned and the appeal is taken up for hearing on merits. 2. 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 th....
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....e, which we will advert to shortly. In our aforesaid order in Subhlakshmi Vanijya Pvt. Ltd., vs. 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 conclusion to the enquiry conducted by him gives power to the CIT to revise such assessment order, by holding that :- i) the enqui....
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....he 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 andnot 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 amalgamati....
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..... A view was canvassed that when the AO chose not to make any addition by exercising his discretion as per the mandate of section 68, then the ld. CIT in the instant cases was not obliged to hold against the assessees. 7. We agree with the ratio decidendi of the judgment from the aforenoted Apex Court that the discretion lies with the AO to make or not to make any addition u/s 68, if he is not satisfied with the explanation given by the assessee. But we are confronted with a situation in which the AO did not make befitting inquiry in the given circumstances and the CIT has held the assessment order to be erroneous and prejudicial to the interest of the revenue on this count and directed the AO to pass a fresh assessment order as per law.....
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....ept this contention. 9. Then, the ld. AR relied on the judgment of the Hon'ble Delhi High Court dt. 16.4.2015 in CIT vs. Anshikha Consultants Pvt. Ltd. in which the contention of the assessee as regards the genuineness of the receipt of share capital at premium, has been accepted. This judgment has no application to the facts of the instant case because in that case appeal was filed against the tribunal order upholding the order of the CIT(A) in which it was observed by the ld. CIT(A) as well as the tribunal that the receipt of share application money with premium was through genuine transactions. Moreover that was appeal against the deletion of addition and not against the revisional order restoring the matter to the AO for making a....