TMI Blog2014 (11) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... Del/2013 & 2356 & 2357/Del/2014, ITA No. 5949 & 5950/Del/2013 - - - Dated:- 28-11-2014 - SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER For the Appellant : Shri Kapil Goel Adv. For the Respondent : Shri Gunjan Prasad CIT( DR). O R D E R PER S.V. MEHROTRA, A.M:- The assessee as well as the department have filed cross appeals against separate orders of CIT(A) for A.Ys. 2005-06 2007-08. The assessee is also in appeal against CIT(A)'s orders for A.Y. 2003-04 and 2004-05. Common issues are involved for adjudication, therefore, all these appeals were heard together and being disposed of by this consolidated order, for the sake of convenience. 2. Brief facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee has challenged the initiation of proceedings u/s 153A. 5. At the outset ld. counsel for the assessee submitted that initiation of proceedings u/s 153A and completion of assessments on the company, which had already become non-existent on account of its merger with other company, was illegal and bad in law and, therefore, the assessments in question are to be quashed. He submitted that in these cases notices u/s 153A were issued on 29-3-2010 and assessments were completed on 31-12- 2010. 6. Ld. counsel further referred to pages 23 to 41 of the PB, wherein the order passed u/s 394 of the Companies Act by the Hon ble Delhi High Court, is contained and pointed out that the appointed date was 1-4-2008. Ld. counsel referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and analysed. There is no dispute to the fact that the assessee company got amalgamated with M/s JPL Hotels Residences Pvt. Ltd. (transferor company) before finalization of assessment. Now question arises, whether assessment can be framed on a dead person / nonexistent entity, the obvious reply is no. Because, notices were issued to the assessee company when it was no more in existence. Admittedly, the assessee filed the return under protest, therefore, the assessment so framed in the case of the assessee was a nullity. Identical is the situation in the cases relied upon by the assessee one of which we have reproduced hereinabove. So far as participation in the proceedings by the assessee which is the main thrust of argument by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Impast 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. 10. Even as per the scheme of the Act Section 170 of the I.T. Act it clearly prescribes succession to business other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor, and the successor shall be entitled to recover from the predecessor any sum so paid. (4) Where any business or profession carried on by a Hindu undivided family is succeeded to, and simultaneously with the succession or after the succession there has been a partition of the joint family property between the members or groups of members, the tax due in respect of the income of the business or profession succeeded to, up to the date of succession, shall be assessed and recovered in the manner provided in section 171, but without prejudice to the provisions of this section. Explanation.-For the purposes of this section, income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to its winding up. It was held that transferor company would no longer be amenable to assessment proceedings. Likewise, Hon ble Gujarat High Court (SCA NO. 5857 of 2004) order dated 15.1.2013 on the issue of validity of assessment on a nonexistent person held the same a nullity. 12. In view of the clear factual position and judicial pronouncements discussed hereinabove, all these appeals of the assessee are allowed. 13. In the result, all the six Appeals filed by the Assessee stand allowed. 8. Respectfully following the Hon ble Delhi High Court s decision in the case of Vived Marketing Services Pvt. Ltd. (supra), it is held that the assessment order passed on the amalgamated company is not amenable to assessment proceedings. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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