9911796707
TMI Blog2006 (4) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed to tax in Bangalore before a CIT, Circle 11 (3) with PAN No. AAACC 9862 F. Framing of assessment by the Assessing Officer in New Delhi amounts to passing of two assessments for the same year which is clearly unwarranted under the Act." 3. There was a company by name M/s Hewlett Packard India Pvt. Ltd (H.P. India). This company was in the business of dealing with computer and computer peripherals besides deriving income from executing service contracts. There was a scheme of amalgamation proposed between H.P.India and M/s Hewlett Packard India Sales P.Ltd. (H.P. Sales). As per the scheme of amalgamation the appointed date was 1.4.03. The effective date of the scheme was the date on which the last approvals/events specified in clause 13 of the scheme are obtained/have occurred. Clause 13 of the scheme reads as follows. "Scheme conditional upon:" :- This scheme is conditional upon the following approvals/events and the Scheme shall be deemed to be effective on obtaining last of the following approvals and the occurrence of the last of the following events:- (a) the approval of the Scheme by the requisite majority of the members and creditors of H.P.India and H.P. Sales, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this claim of the assessee and proceeded to frame the order of assessment. 7. Before the CIT(A) the assessee agitated the issue. The assessee brought to the notice of the Assessing Officer the decision of the Delhi Bench of the ITAT in the case of Imp Sat Pvt.Ltd. 91 ITD 354 (Del) = (2004-TIOL-119-ITAT-DEL) wherein it has been held that an order of assessment on a company which no longer exists, is not valid in law. It was pleaded that the order of assessment was a nullity. On this submission of the assessee the CIT(A) referred to the decision in the case of K.H.Chambers 55 ITR 674 (S.C.) regarding succession and when succession to a business takes place. Reference was also made to the decision in the case of United Provinces Electric Supply Co.Ltd., 204 ITR 795 (Cal) regarding the right of an official liquidator to file the return of income on behalf of the company which is in liquidation. Further reference was made to the decision of the Karnataka High Court in the case of Mysore Spun Silk Mills Ltd. 79 ITR 399 wherein it was held that where a company has been ordered to be wound up it is still a person within the meaning of S.4 of the I.T.Act. Finally the CIT(A) referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld DR however submitted that the facts in the case of Marshal Sons (supra) were different in as much as the transferor company in the present case filed the return of income and subjected itself to the jurisdiction of the A.O. On the decision of the Delhi Bench of the Tribunal in the case of ImpSat (supra) it was submitted that applicability of the provisions of S 170 was not considered by the Hon'ble Tribunal. Further reference was made to the decision of the Rajasthan High Court in the case of CIT vs Gyan Prakash Gupta 165 ITR 501 . We may mention here that that was a case where the question was whether non issue of notice in the name of legal heir vitiates the proceedings. The Court held that the invalidity is not of such nature which goes to the root of the procedure. Reliance was placed on the decision of the Supreme Court in the case of CIT vs. Jai Prakash Sons 219 ITR 737 (S.C.) Wherein it has been held that the liability to tax is by virtue of S.3 and 4 of the Act and that omission to serve or defect in the service of a notice is only a procedural lapse which does not efface or erase the liability to pay tax. We may mention here that this decision is not of any relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case having been concluded on April 3, 1948, the company then being in existence, the assessment would be valid on the principle recognized in Order 22, rule 6, of the Civil Procedure Code. We agree that the rules as to abatement laid down by the Civil Procedure Code will not apply to the proceedings before the ITO. But the principle of representation applicable to regular suits and proceedings under the Civil Procedure Code would well apply to such proceedings vide Alfred vs. ITO. That apart, the existence of an assessee is essential for an assessment. There cannot be an assessment of a non-existent person. The definition of the word "assessee" in section 2(2) would obviously apply only to a living person. The rule contained in Order 22, rule 6, cannot, therefore, apply to the assessment proceedings. The assessment in the instant case was made long after the Free Press Company was struck off from the register of the companies, and it could not be valid. 10. In the case of Birla Cotton Spinning and Weaving Mills Ltd. vs. CIT 123 ITR 354 (Mad.), the Hon'ble Delhi HC was dealing with a case where proceedings were initiated and orders of assessments made on Amalgamating Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign collaborator as giving rise to a casual and non recurring income in the hands of the assessee. In the appeal before the Tribunal one of the question that arose for consideration was as to whether a company whose name was struck off the Register by ROC under section 560 of Companies Act, 1956 and therefore, stood dissolved, could be assessed to tax after dissolution? The Tribunal held that existence of the person sought to be taxed at the point of making the assessment is a condition for the validity of the assessment. The Tribunal referred to the decision of the Hon'ble Bombay High Court in the case of Patiala State Bank, In Re 9 ITR 95 (Bom) wherein it was held that tax is not imposed on income generally. It is imposed on the income of a person, natural or artificial, as defined in section 3. The Tribunal thereafter, referred to the various provisions in the Income-tax Act, 1961, for initiating proceedings for assessment of income in the case of death of different assessees. In the case of a company which is in liquidation the provisions of section 178 of the Act providing for assessment in the hands of a liquidator, was referred to. The Tribunal then referred to the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
