2014 (11) TMI 133 - AT - Income Tax

Initiation of proceedings u/s 263 Whether the CIT erred in holding that receipt of share capital was not properly investigated and was not justified in imposing her own view of the manner in which enquiry was to be conducted Held that - The requisite and proper inquiries were not done in respect of the share application money received by the assessee in the course of original assessment order passed on 07.07.2010 nor has the AO applied his mind as decided in Malabar Industrial Company Limited vs.- CIT 2000 (2) TMI 10 - SUPREME Court wherein the action of the CIT in setting aside the assessment order passed under section 148/ 143(3) on 07.07.2010 cannot be faulted with. There is no intimation as to when the original Directors of the assessee company Shri Ganpat Jain and Shri Subodh Tody were replaced or when Shri Arihant Jain became a Director - There is no information to show when Shri Arian Jain, Shri Subbed Toddy and Shri Ganapati Jain were replaced by the Directors Shri Human Mall Saratoga and Shri Annand Kumar Jain. Though the assesse has filed a fresh appeal memo and Form 36 dated 31.07.2014 signed by Shri Human Mall Saratoga - It is not shown as to how Shri Human Mall Saratoga was a Director as on 14.05.2013 when the appeal was filed by the assesse - These facts are being brought out because if Shri Arihant Jain is the Director then the appeal filed by the assessee on 14.05.2013 is within time thus, the order passed by the CIT u/s 263 is upheld Decided against assessee.

Issues Involved:

1. Validity of initiation of proceedings under Section 263.
2. Whether the order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue.
3. Proper investigation of receipt of share capital.
4. Misapplication of legal principles by the Commissioner.

Detailed Analysis:

1. Validity of initiation of proceedings under Section 263:
The assessee contended that the initiation of proceedings under Section 263 was "wrong, unjustified, bad in law and barred by limitation." The Tribunal noted that the Commissioner invoked Section 263 on the grounds that unaccounted money was being converted through investment in the share capital of the company. The Tribunal upheld the validity of the initiation of proceedings, emphasizing that the Commissioner had valid reasons to believe that the original assessment was erroneous and prejudicial to the interest of revenue.

2. Whether the order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue:
The Tribunal observed that the original assessment was completed in a hurried manner without proper investigation. The Assessing Officer failed to verify the details of the share applicants and did not conduct an inquiry into the issuance of shares at a premium. The Tribunal concluded that the assessment was erroneous and prejudicial to the interest of revenue, justifying the Commissioner's action under Section 263.

3. Proper investigation of receipt of share capital:
The Tribunal noted that the Assessing Officer did not properly investigate the receipt of share capital. Notices under Section 133(6) were issued to the share applicants, but the responses were incomplete and not verified. The Tribunal emphasized that the absence of a detailed investigation into the share application money received by the assessee indicated a lack of due diligence by the Assessing Officer. The Tribunal upheld the Commissioner's direction for a more thorough investigation.

4. Misapplication of legal principles by the Commissioner:
The assessee argued that the Commissioner misconstrued legal principles and relied on irrelevant court decisions. The Tribunal disagreed, stating that the Commissioner correctly applied the legal principles and had valid reasons for invoking Section 263. The Tribunal referenced the decision of the Hon'ble Full Bench of the Guwahati High Court in Jawahar Bhattacharjee, which supported the Commissioner's action when the Assessing Officer failed to conduct a proper inquiry.

Additional Observations:
The Tribunal also addressed procedural issues, noting that the appeal was repeatedly adjourned at the request of the assessee, indicating a lack of genuine interest in disposing of the appeal. The Tribunal dismissed the appeal ex parte, emphasizing that the assessee's actions demonstrated an attempt to evade the hearing.

Conclusion:
The Tribunal upheld the order passed by the Commissioner under Section 263, dismissing the appeal filed by the assessee. The Tribunal found that the original assessment was erroneous and prejudicial to the interest of revenue, and the Commissioner was justified in directing a more thorough investigation into the receipt of share capital. The Tribunal also rejected the argument that the appeal had become infructuous due to the passing of consequential assessment orders.

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