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2015 (6) TMI 800 - ITAT DELHI

2015 (6) TMI 800 - ITAT DELHI - TMI - CIT-I power u/s 264 - ex-parte order - revival of the company - HC while accepted the prayer of the company has stated that, The prayer is accepted to secure the ends of justice, exmanagement of the (Company-in-liquidation) would now appear in the office of the Commissioner of Income Tax - Held that:- In the present case, it appears that the department passed the ex-parte order during the period of liquidation and the ld. CIT-I, Delhi while deciding the peti .....

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e opportunity of being heard to the assessee. We also direct the assessee to Co-operate and not seek undue or unwarranted adjournments. - Decided in favour of asssesse for statistical purposes. - ITA No. 4008 to 4023/Del/2013 - Dated:- 19-6-2015 - Sh. N. K. Saini and Sh. George George K., JJ. For the Petitioner: Sh. Sudhir Sehgal & Sunil Mathur, Adv. For the Respondent: Smt. Anuradha Mishra, CIT DR ORDER PER BENCH: These appeals of the assessee having some common issues were heard together s .....

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incorporated on 18.01.1985 was engaged in the business of manufacturing of open top sanitary and general line canes. There were two other sister concerns namely M/s Asian Closures Ltd. & M/s Trans Asia Packaging Ltd. The sister concerns M/s Asian Closures Ltd. was amalgamated with M/s Asian Consolidated Industries Ltd. w.e.f. 20.03.1992 by virtue of an order dated 06.01.1994 of the Hon ble Punjab & Haryana High Court. The effect of the said order was given by the Registrar of Companies .....

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ect of this amalgamation was given by the Registrar of Companies on 12.10.1995. The returns of income for the assessment years 1993-94-1994-95 were filed separately by M/s Trans Asia Packaging Ltd. However, while completing the various assessments for the assessment years 1992-93 to 1996-97 in the case of M/s Asian Closures Ltd. and for the assessment years 1992-93 to 1994-95 in the case of M/s Trans Asia Packaging Ltd., the department had not taken cognizance of such merger and that set-off the .....

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mpany, the liquidator was appointed and all the controls and management of the company was taken over by him. It was further submitted that the management of the company ceased to exist and the premises of the company was sealed. All the plant & machinery, records had been taken possession of by the liquidator on as was, where was basis. In the mean time, the assessee approached the Hon ble Punjab & Haryana High Court for stay of the demand raised by the AO in the ex-parte order, amounti .....

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dance with law through the statutory appeal/revision, if so permissible in law. As regards the assessment orders pertaining to pre-winding up period, learned counsel for the ex-management undertakes to approach the Income Tax Department i.e. the Chairman, Central Board of Direct Taxes (CBDT), North Block, New Delhi for settlement of the claim, within a period of one month from the date of receipt of a certified copy of this order. Ordered accordingly. 4. In the present case, the petition for rev .....

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est appears to be just and reasonable. The prayer is accepted to secure the ends of justice, exmanagement of the (Company-in-liquidation) would now appear in the office of the Commissioner of Income Tax, Delhi-1, New Delhi on 04.02.2014, for the tax authorities to take further steps in accordance with law. It has further been observed as under: This Court has no doubt that the appellate authorities, where appeals are pending would take a sympathetic view in condoning the delay in filing the appe .....

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its are identical and for the sake of convenience the contents of the affidavit pertaining to ITA No. 4010/Del/2013 are reproduced as under: 1. That the above said appellant had filed an appeal before Hon ble Income Tax Appellate Tribunal, Delhi Bench on 28.06.2013 against the order of the Learned Commissioner of Income Tax (Appeals)-XXX, New Delhi. The order which was contested in appeal was passed u/s 143(3) of the Act. The appeal filed before Hon ble Tribunal is registered at ITA No. 4010/Del .....

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XX, New Delhi was decided at the back of the assessee company when it was under liquidation on 09.03.2001. Since the assessee company was under liquidation and was not served with any notice and even the order passed, the assessee was prevented by sufficient reasons in not able to contest the appeal which was decided at its back. 3. That it is by virtue of the order of Hon ble Punjab & Haryana High Court at Chandigarh dated 08.05.2013, that the ex-management of the assessee company was permi .....

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e company to appeal earlier. 5. In view of the above submissions, it is most respectfully submitted that the delay in submitting the present appeal may kindly be condoned as the assessee was prevented by sufficient and reasonable causes. It is prayed that the appeal may kindly be heard and disposed of on merits. DEPONENT VERIFICATION I, Rajiv Jain the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and belief and nothing ma .....

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2. That the order passed by AO is perverse in law and facts and has been passed without proper application of mind. 3. That the submission regarding the merger of the Assessee with M/s Asian Consolidated Industries Ltd. duly supported by the order of the Hon ble High Court of Punjab & Haryana were made but the same were completely ignored by the Assessing Officer. 4. That the appellant company having merged with M/s Asian Closure Ltd. (ACIL) and M/s Trans Asia Packaging Ltd. (TAPL) as per th .....

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provisions of Sec. 72A of the Act. 5. That the Learned Commissioner of Income Tax (Appeals) officer has erred in law and on fact in not considering that companies M/s Asian Closures Ltd. (ACL) and M/s Trans Asia Packaging Ltd. (TAPL) having merged with M/s ACIL under the orders of the Punjab & Haryana High Court under the law only one assessment in the case of ACIL was to be made. The framing of three different assessments in the case of all the three companies and the disallowance of vario .....

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e the CIT(A0 in the first round of Appeal by the Assessee and the direction given by the Learned Commissioner of Income Tax (Appeals) while setting aside the case have not been followed/dealt with. 8. That the Assessing Officer has failed to appreciate that all the record was in custody of the Official Liquidator & information called for was available with him and it was for him to produce the same and in case of any difficulty Assessing Officer could seek assistance of the Ex-management. 9. .....

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hat the order has caused a lot of hardship and prejudice to the Assessee as all the required information and documents evidencing/justifying the contentions raised by the Assessee were in the custody of the official liquidator. 12. That the Assessee has not been afforded with any opportunity to explain his case and prove the genuineness of his claims. 13. That the Assessing Officer could have issued Notice Under Section 131(6) directing the Ex- Directors of the Company to be present and provide .....

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t justified in confirming the action of the Assessing Officer in disallowing administrative, selling and distribution expenses amounting to ₹ 1,61,97,155/- since these expenses are incurred wholly and exclusively for the business of the appellant company. These deserve to be fully allowed. III. That the That the learned Commissioner of Income Tax (Appeals) was not justified in confirming the action of the Assessing Officer in disallowing the claim of the appellant company under section 80H .....

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the Assessee Company in pursuance to the Hon ble High Court s order dated 08.05.2013 received by the Assessee Company on 28.05.2013. 8. During the course of hearing the ld. Counsel for the assessee requested for setting aside these appeals to the AO and stated in writing as under: a) Assessments of the assessee for AYs 1996-97 to 2001-02 stands set-aside u/s 264 of the Income Tax Act. In order to avoid the situation that proceedings be completed by multiple authorities, the assessments for AY 91 .....

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sue of amalgamation and applicability of section 72A is also pending in AY 96-97 in the cases of M/s ACIL and M/s ACL, the assessments of which stands set-aside u/s 264. Since this issue is to be adjudicated from AY 92- 93 onwards, it would be logical as well as justified that the same may be decided by the one authority i.e. AO and only then correct effect can be given by the department. c) The appellants have claimed deductions u/s 80HH and 80I from AYs 92-93 onwards. However, the said deducti .....

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een decided u/s 264 of the Act. In view of setting aside of order u/s 264 of the Act, the issue related to genuineness of trading activity is yet to be decided and it is preferred that by single authority should consider that and not by multiple authority. Similar is the position with respect to invoking of provisions u/s 145 of the Act and genuineness of books of accounts maintained by the group is to be examined by a single authority, so that a decision can be taken and there may not be multip .....

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records with them. (Confirmed by CIT(A) as per letter which is filed before registry for removing defects.) f) Period under consideration is very old and almost more than 22 years have passed and collection of information would be very difficult. The AO has powers u/s 133(6) which can be used for the assessments to be framed in an equitable and justified manner. It is not out of place to mention that previously most of the assessments were framed in an ex-parte manner, without due verification .....

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