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TMI Blog2015 (12) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... >Income Tax X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 enquiry conducted by the AO in such cases can't be construed as a proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 amalgamating company. But, where the intention of the assessee is to defraud the Revenue by either filing returns, after amalgamation, in the ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. He has not substituted his opinion for that of the AO and confirmed the addition. He has simply restored the matter to the AO for deciding the issue as per law and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 proper and adequate inquiry. 10. The next objection of the ld. AR was that the proviso to section 68 cannot be considered as retrospective in view of several judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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