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2016 (4) TMI 424 - ITAT MUMBAI

2016 (4) TMI 424 - ITAT MUMBAI - TMI - Validity of assessment against a company which was non-existent - Held that:- We set-aside the action of the Assessing Officer in framing the assessment against ITICL on 19.12.2008 as the said company was non-existent as it stood amalgamated with IHL w.e.f. 1.4.2007, following the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007. - ITA NO. 4593/MUM/2011, ITA NO. 4748/MUM/2011 - Dated:- 9-3-2016 - SHRI G.S. PANNU, ACCOUNTANT MEM .....

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ound of the dispute is that a return of income was filed by the assessee, M/s. Instant Trading & Investment Company Ltd. (in short ITICL‟) for Assessment Year 2006-07 declaring a loss of ₹ 5,24,13,838/- which was subject to scrutiny assessment u/s 143(3) of the Act whereby the total income has been assessed at ₹ 2,89,19,530/- after making certain disallowance/additions. The appeal of the assessee was partly allowed by the CIT(A). Against some of the reliefs granted by the C .....

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said concern, i.e. ITICL, was not in existence inasmuch as it stood amalgamated with one M/s. Instant Holdings Ltd. (in short IHL‟). Since this plea of the assessee goes to the root of the matter and it has been contested by the assessee even before the lower authorities, we heard the said plea at the threshold itself. 4. In this context, the relevant facts are that ITICL was a company incorporated under the Companies Act, 1956 on 16.2.1987 and was engaged in the business of investment in .....

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, i.e., 1.4.2007. The learned representative for the assessee explained with reference to the Paper Book that the copy of order of the Hon'ble Bombay High Court was filed with the Registrar of Companies alongwith Form No. 21 on 5.2.2008 and accordingly, for all intents and purposes ITICL stood dissolved w.e.f. 5.2.2008 on the records of the Registrar of Companies also. The aforesaid factual position is not in dispute and is in fact borne out of the relevant material placed in the Paper Book .....

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edings, the authorized signatory of the erstwhile ITICL vide letter dated 2.12.2008 informed the Assessing Officer the fact of amalgamation of ITICL with IHL, enclosing copies of the relevant order of the Hon'ble Bombay High Court, scheme of arrangement, etc. The grievance of the assessee is that the subsequent assessment order finalized by the Assessing Officer on 19.12.2008 is in the name of ITICL, which is a non-existent assessee as on the date of passing of the assessment order. Therefor .....

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tity, it does not remain a mere procedural irregularity and rather it amounts to a jurisdictional defect as there cannot be any assessment against a dead person. Further, the learned representative submitted that similar view has been expressed by the Hon'ble Karnataka High Court in the case of CIT v. Intel Technology India Pvt. Ltd. (57 Taxmann.com 159) following the decision of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra). The learned representative also .....

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of income for assessment year under consideration, i.e., Assessment Year 2006-07, was filed in the name of the predecessor company, i.e. ITICL, and that the amalgamation took place w.e.f. 1.4.2007, which is relevant for Assessment Year 2008-09 and not for Assessment Year 2006-07 under consideration; thus, according to him, the Assessing Officer has rightly made the assessment in the name of the predecessor company as during the previous year relevant to the assessment year under consideration, .....

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tood dissolved and struck-off from the records of the Registrar of Companies on 5.2.2008 consequent to the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007. 8. In the case of Spice Infotainment Ltd. (supra), the facts were that a return was filed for Assessment Year 2002-03 on 30.10.2002 by M/s. Spice Corp Ltd., i.e., the amalgamating company. Subsequently, vide order dated 11.2.2004 passed by the Hon'ble High Court, the said company stood amalgamated with M .....

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ated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon'ble High Court was that the assessment was framed against a non-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that .....

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ment in the name of Spice Corp Ltd. , after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f 01.07.2003, was a mere procedural defect ? (ii) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that in view of the provisions of section 292B of the Act, the assessment, having in substance and effect, been framed on the amalgamated company which could not be regarded as null and void? 9. The Hon'ble Del .....

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inst the Revenue and allowed the stand of the assessee. 10. Similarly, even in the case of Intel Technology India Pvt. Ltd. (supra) the Hon'ble Karnataka High Court has reached to a similar conclusion. In the case before the Hon'ble Karnataka High Court, one M/s. SSS Ltd. stood amalgamated with Intel Technology India Pvt. Ltd. w.e.f. 1.4.2004; prior to that, it filed a return of income on 28.11.2003 for Assessment Year 2003-04 and an assessment order was passed on 27.3.2006 in the name o .....

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our of the assessee and against the Revenue. (1) Whether the Tribunal was correct in holding that the order passed by the Assessing Officer on M/s Software & Silicon Systems India Pvt. Ltd., after being intimated about the merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against the said company and null and void ? (2) Whether the Tribunal was correct in holding that the provisions of section 292B of the Act will not make the assessment valid as a defect/omission to .....

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pparel Pvt. Ltd. and Micra India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is safe to deduce that an order of assessment made on an entity which is otherwise non-existent on the date of such assessment is invalid. 12. Factually speaking, in the present case the afore .....

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