TMI Blog2016 (4) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act. - Decided in favour of assessee. - ITA No. 1578/Ahd/2015 - - - Dated:- 4-3-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Shri Hiren Trivedi, AR For The Revenue : Shri Sanjay Agrawal, CIT-DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The assessee is in appeal before us against the order of the ld.CIT-2, Ahmedabad dated 31.3.2015 passed under section 263 of the Income Tax Act, for the Asstt.Year 2006-07. 2. Grounds of appeal taken by the assessee read as under: 1. On the facts and in the circumstances of the case, the learned Principal CIT erred in issuing notice u/s.263 and subsequently passing the impugned order u/s.263 in the name of Hinduja Exports Pvt. Ltd. which is a non-existent company and on that ground the aforesaid notice and the order u/s.263 are ab initio void and bad in law. 2. On the facts and in the circumstances of the case, the learned Principal CIT erred in assuming his jurisdiction u/s.263 of the I.T. Act, whereas the mandatory conditions for assuming such jurisdiction are totally absent, with the result that the impugned order passed u/s.263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on record copy of the assessment order. 4. On the other hand, the ld.DR also filed paper book containing 24 pages. He contended that reply submitted on 26.3.2015 was signed by authorized person of HEPL. Similarly, power of attorney filed by Shri Narayan Shah, ITP has been signed by HEPL, because, stamp of HEPL along with initial of some persons is available. The adjournment application dated 6.1.2015 is again signed on behalf of HEPL. Therefore, it indicates that proceeding is to be continued in the name of HEPL. On the strength of ITAT order of Kolkata Bench in the case of Subhlakshimi Vanijay P. Ltd. Vs. CIT, 155 ITD 171 , he contended that if an assessee keeps in dark the Revenue, then this amalgamation ought to be ignored. He drew our attention towards paragraph-30.b of the ITAT order in order to buttress his contention. He further contended that if this Bench does not want to concur with the view of Kolkata Bench of the ITAT, the matter be referred to larger Bench. The ld.DR further contended that though the assessee has intimated the AO, but did not give any intimation to the Commissioner. 5. We have duly considered rival contentions and gone through the record caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Gujarat High Court order in company petition no. 117 of 2012 and company application no. 212 of 2012 dated 03.09.2012 with Milestone Tradelink Pvt. Ltd. (PAN: AACCM9423C)with appointed date 01.04.2011 relevant to A.Y. 2012-13. The copy of amalgamation order is enclosed herewith for your perusal. In view of the above as the company is not in existence, your honour is requested to cancel/drop the assessment proceeding initiated by you. Thanking You, Yours Faithfully, For, M/sHinduja Exports Pvt. Ltd, Sd/- (Authorized Signatory) Encl: As above. 7. Cognizance of this fact was taken by the AO in the assessment proceedings for the Asstt.Year 2012-13. The assessee, Milestone Tradelinks Pvt. Ltd. has filed its return for the Asstt.Year 2012-13 on 28.8.2012. It has informed the AO about the amalgamation of HEPL with it vide order dated 3.9.2012 passed by the Hon ble Gujarat High Court. These facts have been noted by the AO in the assessment order dated 5.2.2015. The discussion made by the AO qua this fact reads as under: The assessee filed its Return of Income electronically vide E-filing Acknowledgement Number 500821281280912 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger survives from 1.4.09, question of assessing such company for the purpose of income tax would not survive. It is on this ground that the notice issued by the respondent calling upon the transferor company to provide the details with respect to the assessment year 2010-11 is challenged in this petition. 6. Having heard the learned counsel for the parties, it emerges from the record that the transferor company had merged in transferee company with effect from 1.4.09. The High Court did not provide for any modification in the appointed date as envisaged in the merger scheme itself. In that view of the matter, as held by the Supreme Court in the case of Marshall Sons and Co. (India) Ltd v. I.T.O. , 223 ITR 809, the effective date for amalgamation would be the date as envisaged under the scheme. The Supreme Court in the said decision observed as under: 14. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide viz. January 1, 1982. It is true that while sanctioning the scheme it is open to the Court to modify the said date and prescribe such date of amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982 . This is also the ratio of the decision of the Privy Council in Raghubar Dayal, v. Bank of Upper India Ltd., AIR 1919 PC 9. Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the Court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the Transferee Company taking into account the income of both of Transferor or Transferee Companies and also to make separate protective assessments on both the Transferor and Transferee Companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balancesheets may not be available for the Transferor and Transferee Companies. But that may not be an insupera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound later and claim that though it wrongly initiated the proceedings in wrong name, but the court should have taken cognizance of the reality of amalgamation. NO assessee can be allowed to drive benefit from its own fraudulent practice. 30.c. It is observed in the instant case despite its amalgamation, the assessee chose to file its return of income after the date of amalgamation, in its earlier name and that is how the assessment got completed u/s 147 in the same name. It is obvious that in such circumstances, the assessee cannot be allowed to take advantage of its own manipulation. It is further interesting to note that the assessee also allowed the proceedings u/s 147 to complete in its earlier name, but-is now seeking to object to the order of the Id. CIT on this aspect of the matter. Law does not permit a person to both approbate and reprobate. This contention is therefore, rejected. 10. On the strength of these paragraphs and on the strength of adjournment application, power of attorney alleged to have been signed by the HEPL, he contended that the assessee did not inform the Commissioner about the factum of amalgamation, and therefore, at this stage, it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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