TMI Blog2013 (6) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals. For the sake of convenience, all the appeals and cross objections were heard together and are being disposed off by this common order. Similar grounds of appeals and similar Cross Objections have been taken by Revenue and assessee in respect of all years. The Revenue has challenged CIT (A)'s order vide ground no.1 regarding upholding that assessment on a company which has been dissolved/ amalgamated is invalid. The other grounds taken by Revenue relates to deletion of additions on merits. On the other hand, assessee has filed Cross Objections regarding initiation of proceedings on legal and factual basis. The brief facts of the case are that search and seizure action u/s 132 of the Income Tax Act, 1961 was carried out on Shri BK Dhinga, Smt. Poonam Dhinga M/s Madhusudan Buildcon Pvt. Ltd. on 20.10.2008. During the course of search at their residential premises at F-6/5, Vasant Vihar, New Delhi certain documents belonging to the assessee were seized. On the basis of those documents so found belonging to the assessee company proceedings were initiated in the case of assessee u/s 153C read with section 153A of the Act. In response to notice u/s 153C read with secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3)-282; d) Commissioner of Income Tax vs. Amarchand N. Shroff, (1963) 48 ITR 59 (SC); e) I K Agencies Pvt. Ltd. vs. Commissioner of Wealth Tax, Kol-III, Judgment dated 11th March,2011. f) Triveni Engineering and Industries Ltd. vs Deputy Commissioner of Income Tax, ITAT Delhi WT Bench, (2005) 93 TTJ (Del) 806: (2005) 93 ITD 561; g) Century Enka Ltd. vs Deputy Commission of ................on 14 February,2006: 2006 101 ITD Mum, 2008 303 ITR 1 Mum; h) Pampasar Distillery Ltd. Vs. ACIT, ITAT, Kolkata E Bench, (2007) 15 SOT 331 (Kol); i) CIT vs. Kurban Hussain Ibrahimji Mithiborwala, 1973 CTR (SC) 454; (1971) 82 ITR 821 (SC); j) Spice Entertainment Ltd. Vs CIT ITA 475 and 476 of 2011. The gist of the judgment of the jurisdictional Delhi High Court's order in the case of ITA No.273/2009 COMMISSIONER OF INCOME TAX vs VIVED MARKETING SERVICING Pvt. Ltd. is reproduced hereunder:- "When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies u/s 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to this consequence provided in law, assessment upon a dissolved company is impermissible as there is no provision in income tax to make an assessment thereupon. Therefore, I agree with the appellant that assessment on a company, which has been dissolved/ amalgamated u/s 391 and 394 of the companies Act, 1956 is invalid. There is no provision in the I.T Act, to make assessment on an amalgamating company (transferor/dissolved company),even though the appellant company participated in assessment proceedings. The judgment in the cases of a Impsat (Pvt.) Ltd. vs ITO, ITAT, Delhi 'A' Bench ITA No. 1430/ Del/2004 dated 28.07.2004; 2005 TTJ (Del) 552: (2004) 91 ITD 354 (Del) b) Commissioner of Income Tax vs. Vived Marketing Servicing Pvt. Ltd. ITA No. 273/2009 and c) Spice Entertainment Ltd. vs CIT ITA 475 476 of 2011, by the Hon'ble Delhi Court are applicable to the present facts of the case. The appellant company stood dissolved on 07.12.2009 on amalgamation with M/s B. S. Infratech Pvt. Ltd., In view of the above, I accept the contention of the appellant company and hold that the assessment order passed on the appellant company is a nullity. Therefore, this ground of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany as the assessee had become non existent at the time of issue of notice u/s 153C read with section 153A of the Act. Our attention was invited to page 2 of assessment order where Assessing Officer himself admits the fact that company had already merged with M/s B. S. Infrastructure (Pvt.) Ltd. w.e.f.01.04.2008. Regarding contention of Ld Dr that Ld CIT(A) had wrongly relied upon the case law of M/s Micra India Pvt. Ltd, he submitted and cited from the relevant paragraphs of ITAT order in this respect. He further submitted that returns were filed by the non existent company just to comply the notices issued in this behalf and returns were filed in protest which was noted on the acknowledgement itself wherein it was contested that the notices were bad and illegal and without jurisdiction. Regarding argument of Ld DR that assessee has been changing its status frequently, the Ld AR submitted that these observations have no bearing on the finding of the impugned order. The ld AR further relied upon the case law and on merits also but his basic argument remained that the assessment order was null and void ab inito as the company was non existent. We have heard the rival submission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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