2022 (2) TMI 440 - HC - Income Tax

Revision u/s 263 - addition on account of share capital/premium can be made under Section 68 in the first year of incorporation/business - Whether reassessment order passed by the Assessing Officer is not erroneous as well as not prejudicial to the interest of the revenue on the issue of share capital/premium when no addition can be made under Section 68? - HELD THAT - The very same substantial questions of law and the said appeal was dismissed by this Court in the case of Rajmandir Estates Private Limited -versus- Principal Commissioner of Income Tax 2016 (5) TMI 801 - CALCUTTA HIGH COURT - excepting the substantial question of law no.(a), which was left open, all other questions of law are decided against the assessee. Substantial question no.(a) is left open - Whether the Learned Tribunal was justified in holding that the first proviso to Section 68 which has been inserted by the Finance Act, 2012 w.e.f.1.4.2013 applies to the Assessment Year 2009-10?

Summary

Issues:
Delay in filing the appeal, interpretation of Section 68 of the Income Tax Act, 1961, reassessment order, addition on account of share capital/premium, jurisdiction of the Commissioner of Income Tax under Section 263.

Delay in filing the appeal:
The appellant sought condonation of a 116-day delay in filing the appeal, which was allowed by the court after finding the reasons acceptable and sufficient cause shown by the appellant.

Interpretation of Section 68 of the Income Tax Act, 1961:
The appeal was directed against an order of the Income Tax Appellate Tribunal concerning the applicability of the first proviso to Section 68 for the assessment year 2009-10. The appellant raised questions regarding the Tribunal's decision on the insertion of the proviso and lack of proper inquiries on share capital/premium.

Reassessment order:
The Tribunal's decision on the reassessment order was challenged by the appellant, questioning the correctness of considering the lack of proper inquiries during proceedings under Section 147 as erroneous and prejudicial to the revenue's interest.

Addition on account of share capital/premium:
The Tribunal's decision to allow addition under Section 68 in the first year of incorporation/business was contested by the appellant, citing judgments of the Supreme Court that no addition can be made under Section 68 in certain circumstances.

Jurisdiction of the Commissioner of Income Tax under Section 263:
The Tribunal's ruling on the Commissioner's authority under Section 263 to set aside the assessment order for a thorough inquiry was disputed by the appellant, arguing against the Tribunal's findings on the issue of share capital/share premium.

Judgment:
The Court dismissed the appeal filed by the assessee, answering substantial questions of law against the assessee based on a previous decision. The application for stay was also dismissed. The substantial question regarding the interpretation of the first proviso to Section 68 was left open for further consideration.