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Orbit Corporation Ltd (Successor of M/s. Orbit Buildcon & Realty Pvt Ltd) Versus Dy. Commissioner of Income Tax, Central Circle-47, Mumbai

2016 (4) TMI 1130 - ITAT MUMBAI

Validity of assessment against non-existing companies - Held that:- First two companies (OB&RPL and OSPL) are without reference to the name of the amalgamated company-OCL. Therefore, the assessments made are obviously on the amalgamating companies. Regarding the third one, there is a reference to the cited company-OCL as shown in the brackets below the OB&RPL. But, the PAN mentioned against PAN / GIR No. relates to the amalgamating company-OB&RPL. Therefore, we infer that the identity of the ass .....

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COUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri Rakesh Joshi For The Revenue : Shri Ravindra Sindhu, DR ORDER PER D. KARUNAKARA RAO, AM: There are three appeals under consideration and they are filed by the assessees for the assessment years 2007-08 and 2008-09. Since, the issues raised in all these appeals are identical and inter-connected, therefore, for the sake of convenience, they are clubbed, heard together and disposed of in this consolidated order. Appeal wi .....

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s per the provisions of law. 3. Briefly stated relevant facts necessary for adjudication of the above legal ground include that M/s. Orbit Buildcon & Realty Pvt Ltd (OB&RPL) and M/s. Orbit Shelters Pvt Ltd (OSPL) filed their returns of income for the AY 2007-08. Assessment in the case of OB&RPL was completed on 28.11.2008 u/s 143(3) of the Act. Subsequently, consequent to the search action u/s 132 of the Act, assessment of the assessee was completed on 27.12.2011 u/s 153A r.w.s 143(3 .....

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pany Petition No.867 connected with Company Application No.932 of 2007; Company Petition No.868 connected with Company Application No.933 of 2007 and the High Court passed order dated 7.12.2007 in the case of OB&RPL with an appointment date as on 1.4.2007 (page 11 of the assessee s paper book). In the case of OSPL, the High Court passed order dated 26.6.2009 with an appointment date as on 1.4.2008, copy of which is placed on page 18 of the assessee s paper book. Assessee informed the AO rega .....

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fter the amalgamation. In the background facts of the above, the above said legal ground was raised common to all the three appeals. 4. Before us, Ld Counsel for the assessee submitted that this issue was raised before the lower authorities including the CIT (A) and the CIT (A) considered the said legal ground and dismissed the assessees ground. Para 5 of the CIT (A) s order is relevant in this regard and the same from the said order for AY 2007-2008 reads as under:- 5.0. The appellant has raise .....

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3(3) r.w.s 153A of the Act have been conducted by the AO and the assessment order has been passed. It is seen from the statement of facts that the Hon ble Bombay High Court vide order dated 07.12.2007 has permitted the merger of the appellant with M/s. Orbit Corporation Limited which is subsequent to the assessment year in respect of which the appeal has been filed in view of these facts, it is hereby held that AO is justified in passing order u/s 143(3) r.w.s 153A of the Act. Accordingly, this .....

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he identical issue was decided in favour of the assessee and the assessment orders made in the names of the amalgamating companies, though the assessment years involved are earlier to the date of judgment of the Hon ble High Court, were quashed. Further, Ld Counsel for the assessee submitted that since OB&RPL and OSPL were merged on the date of issue of notices u/s 143(2) and u/s 153A of the Act with OCL, and once the company merged with another company, the former got dissolved and ceased t .....

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ted company (ie OCL in the case under consideration), which acquires a new status. Relying on the above ratio, Ld Counsel for the assessee brought our attention to the analogy of the present cases and submitted that OB&RPL and OSPL are the amalgamating companies ie transferor companies, which cease to have any identity post amalgamation period from the appointed date ie 1.4.2007. Consequently, AO is under statutory obligation to issue notices u/s 143(2) or 153A of the Act, as the case may be .....

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der:- 6. Referring to the order of the Tribunal in the case of Century Enka Ltd vs. DCIT (supra), wherein the matter was set aside to the file of the AO for reconsideration, Ld Counsel for the assessee submitted that it was a case where the assessee failed to give intimation to the AO unlike in the assessee s case, where the intimation was given to the AO vide the assessee s letter dated 16.1.2008 informing about the fact of amalgamation of the assessees (OB&RPL and OSPL) into OCL. The said .....

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n the same page and submitted that the identity of the assessee qua the said PAN relates to the OB&RPL and not the OCL and not to the amalgamated company-OCL. In other two appeals, assessments were made undisputedly in the names of OB&RPL and OSPL. The names of the successor company do not appear beside the OSPL. We verified the said PANs and found they belong to amalgamating companies. On this issue, Ld Counsel for the assessee brought our attention to the judgment in the case of Dimens .....

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a) are include that the said company got amalgamated into M/s. BS Infratech Pvt Ltd w.e.f 1.4.2008 ie AYs 2003-04 to 2008-2009 onwards. Assessing Officer completed the assessments in the name of the said Dimension Apparel Pvt Ltd (supra), the old company, which was non-existent as on 7.12.2009. By virtue of Hon ble High Court judgment dated 6.1.2012, wherein it was held that the assessment made in the names of the amalgamating company is void ab initio. Further, it is also mentioned that the per .....

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High Court in the case of CIT vs. Express Newspapers (1960) 40 ITR 38 (Mad) were relied. In the case of Express News Papers (supra), the assessments were made long after Free Press Company was stick off from the register of companies and the assessments cannot be valid. In this regard, Ld Counsel for the assessee filed a copy of the judgment of the Hon ble Bombay High Court, copies of the statutory notices issued to the amalgamating companies and the copy of the High Court sanctioning the schem .....

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