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TMI Blog2016 (4) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such jurisdiction are totally absent, with the result that the impugned order passed u/s.263 is bad in law. 3. On the facts and in the circumstances of the case, the learned Principal CIT erred in arriving at a conclusion without any basis whatsoever to the effect that the assessment order passed by the Assessing Qfficer was erroneous as well as prejudicial to the interest of the revenue. 4. On the facts and in the circumstances of the case, the learned Principal CIT erred in cancelling the assessment order passed by the Assessing Officer on 28.3.2013 u/s.!43[3J read with section 147 of the I.T. Act and further in directing the Assessing Officer to "make fresh assessment". 5. The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal either before or during the course of hearing of the appeal." 3. The ld.counsel for the assessee at the very outset submitted that order passed by the ld.Commissioner under section 263 of the Income Tax Act is ab initio void, because the same has been passed in the name of non-existing company, viz. Hinduja Exports Pvt. Ltd. ["HEPL" for short]. He submitted that this company had amalgamated with the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. We have duly considered rival contentions and gone through the record carefully. On page no.260 to 296 of the paper book, the assessee has placed copy of the Hon'ble Gujarat High Court order in Company Petition No.117 of 2012 and scheme of amalgamation. In part-1 of the scheme the definition to different terms has been provided. At Sr.1(e) the appointed date has been provided. It reads as under: "Appointed date" means 1st April, 2011" The "effective date" has been explained at Sr.1(f). It reads as under: "Effective Date" means the last of the dates on which all conditions, mattes and filings referred to in clause 19 hereof have been fulfilled and all necessary orders, approvals and consents referred to therein have been obtained. References in this Scheme to the date of "coming into effect of this Scheme" or "upon the Scheme being effective" shall mean the Effective Date." 6. This scheme has been approved by the Hon'ble Gujarat High Court vide order dated 3.9.2012. The scheme has been approved w.e.f. appointed date i.e. 1.4.2011. Meaning thereby, the status of the company, Hinduja Exports Pvt. Ltd. was extinguished and it merged with the assessee-company. The ld.commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaring total income at Rs.Nil/- after set off earlier year loss. During the year under consideration the Hon'ble Gujarat High Court vide his order dated 03.09.2012 approved the scheme of amalgamation of Aditya Corpex Pvt. Ltd, Ambitious Tradelinks Pvt. Ltd, Anand Trade-Movers (Gujarat) Pvt. Ltd, Hinduja Exports Pvt. Ltd, Midex Overseas Ltd, Nabh Tradelink Pvt. Ltd and Surya Rath Tradelinks Pvt. Ltd. with Milestone Tradelinks Pvt. Ltd. For implementation of the amalgamation Scheme as per of the Hon'ble Gujarat High Court the assessee filed its revised return of income electronically vide E-filing Acknowledgement Number 793020511270913 on 27.09.2013 declaring total income at Rs. 17,46,695/-. This case was selected for scrutiny. Notice u/s 143(2) of the I.T. Act was issued on 06/08/2013 and served on 14.08.2013. Further notice u/s.143(2) was issued on 22.07.2014 due to change of incumbent and served through Speed Post. A notice u/s 142(1) of the I.T. Act with questionnaire was issued on 02.12.2014 and served to the assessee on 05.12.2014." 8. An identical situation has come up before the Hon'ble High Court in Special Civil Application No.605 of 2013. In that case, register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate in this facts and circumstances of the case. If the Court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the Court does not prescribe any specific date but merely sanctions the scheme presented to it - as has happened in this case - it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be remembered that before applying to the Court under Section 391(1) a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the Court may take sometime; indeed, they are bound to take some time because several steps provided by Sections 391 to 394-A and the relevant Rules have to be followed and complied with. During the period the proceedings are pending before the Court, both the amalgamating units, i.e., the Transferor Company and the Transferee Company may carry on business, as has happened in this case but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can always be made, on the available material, even without a balancesheet. In certain cases, best-judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly." In view of the above concluded position of law, we have no hesitation in holding that the transferor company would no longer be amenable to assessment proceedings for the assessment year 2010-11. The notice for producing documents for such assessment would, therefore, be invalid. Reference of the Revenue to clause 6 of the scheme is wholly misplaced. Clause 6 refers to two dates, namely, appointed date and the effective date. It only clarifies that the scheme shall be operative from the appointed date, but shall become effective from the effective date. This, in our opinion, does not alter the position of law. The term 'appointed date' as defined in clause 1(ii) itself envisages 1st April 2009 as the appointed date unless, of course, any other date as may be approved by the High Court. In the present case, the High Court made no change in this respect. The appointed date for the said scheme, therefore, must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of all these arguments, we are of the view that in the Income Tax Act, there is no provision to communicate this fact to the Commissioner. The assessee has already informed the AO. We have extracted the copy of the letter written by the assessee. We have also made reference of the assessment order vide which the AO has taken cognizance of this fact while he issued notice under section 143(2) of the Income Tax Act. In the order of the ITAT, Kolkata Bench itself has observed that legally when a company amalgamates with another, it loses its identity and no proceedings can be taken in its earlier name. The Bench had taken a different view on account of notorious facts available in that case. No such circumstances are before us. Apart from above, we are of the view that even if the assessee gave consent for taking up the proceedings under section 263 against it, that would not infuse jurisdiction in the ld.Commissioner. In other words, this adjournment application, reply to show cause notice would not infuse jurisdiction to ld.Commissioner. Jurisdiction should be by virtue of operation of the Act and not by the consent of an assessee. A perusal of section 263 would indicate tha ..... 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