TMI Blog2013 (8) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent : Dr. Sudha Kumari, CIT DR. ORDER Per Bench :- All these appeals filed by the revenue and cross objections filed by the assessee emanate from the consolidated order of the CIT (Appeals)-II, New Delhi dated 24.11.2011. All the appeals and cross objections were heard together and have been disposed off by this common order for the sake of convenience. Similar grounds of appeals and similar Cross Objections have been taken by Revenue and assessee in respect of all years. 2. The revenue has challenged the order of the CIT (A) in ground no.1 regarding upholding the assessment on company which has been dissolved/amalgamated under section 391 392 of the Companies Act as invalid. The other grounds taken by the revenue are with regard to the deletion of the additions on merits. The grounds of appeal taken by the revenue read as under :- 1. That the Ld. CIT(A) erred in law and on facts of the case in upholding that assessment on a company which has been dissolved/amalgamated under section 391 and 394 of the Companies Act, 1956 is invalid. 2. That the Ld. CIT(A) erred in law and on facts of the case in deleting the addition of ₹ 33,22,754/- made on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction. 6. That on the facts and circumstances of the case and the provisions of the law, the Ld CIT (A) has erred in not considering the fact that the assessment proceeding for the year under appeal was not pending on the date of the recording of satisfaction u/s 153C of the Act and accordingly the same did not abate for the purpose of initiation of proceedings u/s 153C and as such the assessment being bad in law deserves to be quashed. 7. That the respondent reserves the right to add/amend/alter the grounds of cross objection. 3. 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 section 153A, the assessee filed returns for the assessment years 2003-04 to 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press Newspapers Ltd, (1960) 40 ITR 38 (MAD) : (1960) Tax 13(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 circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (P) Ltd. vs Income Tax Officer, 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 appeal is decided in favour of the appellant. Aggrieved the revenue is in appeal before us in respect of all years and Assessee has filed cross objections to these appeals. 4. At the outset, the ld. AR submitted that this issue raised in ground no.1 in all the revenue's appeal is covered by the decision of IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld AR, on the other hand, submitted that the fact of assessee having merged with another company was duly intimated to the Assessing Officer and in this respect our attention was invited to para 19 of Ld CIT(A)'s order where the Ld CIT(A) has made findings of fact. Therefore, he argued that Assessing Officer should have initiated proceedings against the amalgamated company 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the argument of Ld DR that assessee had participated in the proceedings and therefore the present appeals were distinguishable cannot be accepted as Tribunal under similar circumstances had already considered this argument and had decided against it. Therefore, following the various judicial pronouncements in this regard we uphold the order of Ld CIT(A) on this point and reject ground No.1 of the revenue's appeals. Since the facts have been the same, we have no alternate but to confirm the order of the CIT (A) by following the aforesaid order of coordinate Bench in the case of Dimension Apparels Pvt. Ltd. 6. In other grounds of appeals, the revenue has challenged the various additions deleted by the ld CIT(A) on merits. However, once we have quashed the assessment order itself the various additions made by the Assessing Officer do not survive, therefore, the other grounds of revenue appeals have become infructuous. Accordingly, the same are dismissed. 7. As regards to cross objections filed by the assessee, no specific arguments were advanced by the ld counsel for the assessee. We, therefore, presume that the cross objections of the assessee are not pressed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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