TMI Blog2015 (4) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... d to M/s Windchimes Constructions Pvt. Ltd. with which the assessee company i.e. M/s Mevron Projects Pvt. Ltd. amalgamated. Therefore, the assessment framed vide order dated 31.12.2010 u/s 153C/143(3) of the Act on the assessee was not valid. Similar issue had been adjudicated in the case of M/s Micra India Pvt. Ltd. [2013 (11) TMI 679 - ITAT DELHI] and Khurana Engineering Ltd. [2013 (2) TMI 128 - GUJARAT HIGH COURT]. In view of the aforesaid discussion and keeping in view the ratio laid down in the above said judicial pronouncements, we are of the view that for making the assessment, it is absolutely essential that the person so to be assessed should be in existence at the time of making the assessment. In the present case the assessment has been framed by the AO on a date when the present assessee was not in existence and M/s Windchimes Constructions Pvt. Ltd. was fastened with the liability of the assessee but no notice was issued to the said amalgamating company i.e. M/s Windchimes Constructions Pvt. Ltd., therefore, the assessment framed by the AO vide assessment order dated 31.12.2010 was not valid. - Decided in favour of assessee. - ITA No. 4938/Del/2013 to ITA No. 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aggrieved the assessee carried the matter to the ld. CIT(A) and challenged the initiation of proceedings u/s 153C of the Act. It was submitted to the ld. CIT(A) that the assessee company was not in existence, following its merger with M/s Windchimes Constructions Pvt. Ltd. w.e.f 01.04.2008 as per the order of the Hon ble Delhi High Court dated 16.08.2010, hence the assessment was required to be made on M/s Windchimes Constructions Pvt. Ltd. Reference was made to several cases including the judgment of the Hon ble Jurisdictional High Court in the case of M/s Spice Entertainment Ltd. Vs CIT in ITA No. 475/2011 and the decision of the ITAT Delhi Benches E , New Delhi in the case of ACIT Vs M/s Micra India Pvt. Ltd. in ITA No. 1060 to 1065/Del/2012. The ld. CIT(A), however, did not find merit in the submissions of the assessee by observing that the assessee filed the return of income in response to the notice u/s 153C of the Act on 18.09.2010 and in response to the notices u/s 143(2) and 142(1) of the Act, the Director wrote a letter dated 10.11.2010 by using the Letter Head of the assessee i.e. M/s Mevron Projects Pvt. Ltd. but remained silent about the amalgamation and informed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing judgment of the various Hon ble High Courts/Hon ble Supreme Courts: Spice Entertainment Ltd. Vs CIT, ITA No. 475 of 2011 judgment dated 08.08.2011 of Hon ble Delhi High Court CIT Vs Express Newspapers Ltd. (1960) 40 ITR 38 (MAD) I. K. Agencies Pvt. Ltd. Vs CWT, Kol-II, of Hon ble Calcutta High Court (2012) 20 Taxman.com 731 (Cal.) CIT Vs Amarchand N. Shroff (1963) 48 ITR 59 (SC) CIT Vs Kurban Hussain Ibrahimji Mithiborwala, 1973 CTR (SC) 454; (1971) 82 ITR 821 (SC) CIT Vs Vived Marketing Servicing Pvt. Ltd., ITA No. 273/2009 order dated 17.09.2009 of Hon ble Delhi High Court Khurana Engineering Ltd. Vs DCIT, SCA NO. 605 of 2013, (2013) 217 Taxman 75 (Guj.) Torrent Pvt. Ltd. Vs CIT, SCA No. 5857 of 2004, judgment dated 29.04.2013 of Hon ble Gujarat High Court. 10. In his rival submissions the ld. CIT DR strongly supported the order of the ld. CIT(A) and further submitted that the issuance of notice to the amalgamated company instead of amalgamating company was a procedural defect so it was curable. It was emphasized that the assessee participated in the assessment proceedings and never raised the objection, therefore, the assessment framed by the AO wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment proceedings. Under these circumstances, we are of the view that Ld. CIT(A) respectfully following the decisions mentioned below, has rightly held that assessment order passed on the assessee company is a nullity: 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) CIT Vs Vived Marketing Servicing Pvt. Ltd. ITA No. 273/2009. c) CIT Vs Express Newspapers Ltd. (1960) 40 ITR 38 (MAD): (1960) Tax 13(3)-282 d) CIT Vs Amarchand N. Shroff (1963) 48 ITR 59 (SC) e) I. K. Agencies Pvt. Ltd. Vs CWT, Kol-II, Judgment dated 11.03.2011 f) Triveni Entineering Industries Ltd. Vs DCIT, ITAT Delhi WT Bench, (2005) 93 TTJ (Del) 806: (2005) 93 ITD 561 g) Century Enka Ltd. Vs DCIT dated 14.02.2006: 2006 101 ITD 489 (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 Limited Vs CIT ITA 475 476 of 2011 6. We fully concur with the finding of the Ld. CIT(A) that a company incorporated un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT Vs Vived Marketing Servicing Pvt. Ltd. (supra) held as under: 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 under Section 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. Vs ITO 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arises. Dismissed. 16. Same view has been expressed by the Hon ble Gujarat High Court on a similar issue in the case of Khurana Engineering Ltd. Vs DCIT (OSD) (2013) 217 Taxman 75 wherein it has been held that the assessment proceedings could not be resorted to in case of amalgamated company. 17. In view of the aforesaid discussion and keeping in view the ratio laid down in the above said judicial pronouncements, we are of the view that for ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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