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The Commissioner of Income Tax & Another Versus M/s Calcutta Instalment Pvt. Ltd.

Validity of notice - assessment against a nonest entity - Held that:- It is not in dispute that on the date when notice was issued on 5.10.1998 in the name of M/s. Calcutta Instalment Pvt. Ltd. or when assessment order was passed in name of M/s. Calcutta Instalment Pvt. Ltd., it had already ceased to be in existence having been amalgamated with M/s. Modifin (P) Ltd. The factum of amalgamation was well within knowledge of Assessing Officer on the date when assessment was made still it proceeded t .....

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DELHI High Court ). - Decided in favour of assessee. - Income Tax Appeal Defective No. 171 of 2006 - Dated:- 21-7-2016 - Hon'ble Sudhir Agarwal And Hon'ble Kaushal Jayendra Thaker, JJ. For the Appellant : S. C.,A. N. Mahajan For the Respondent : P. Agrawal ORDER 1. Heard Sri Krishna Agrawal, learned counsel for appellants and Sri Pravin Kumar Mishra, learned counsel for respondent. 2. Commissioner of Income Tax and another have preferred this appeal under Section 260-A of Income Tax Act, .....

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ng that the assessment made in the name of the M/s. Calcutta Instalments Company Pvt. Ltd. after the date of its dissolution was not valid?" "(2) Whether on facts and in the circumstances of the case the Tribunal was legally justified in holding that the return of income filed by M/s. Calcutta Instalment Co. Pvt. Ltd. is not of any consequence and hence the assessment made thereunder is invalid?" 3. Factual scenario as emerges is that there was a company, M/s. Calcutta Instalments .....

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was filed being C.P. no. 28/1996 praying for sanction of scheme for amalgamation, referred to above. Court by order dated 11.10.1996 sanctioned scheme of amalgamation. The operative portion of order of this Court reads as follows:- "(1) That all the property, rights and powers of the transferor companies specified in the first, second and third parts of the Schedule hereto and all other property, rights and powers of the Transferor companies be transferred without any further act or deed t .....

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2) of the Companies Act, 1956 be transferred to and become the liabilities and duties of the transferee company, and (3) That all proceedings now pending by or against the transferor companies be continued by or against the transferee company; and (4) That the petitioners/transferor companies do within 30 days after the date of this order cause and certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered the petitio .....

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ree companies shall be consolidated accordingly, and (5) That any person interested shall be at liberty to apply to the Court in the above matter for any directions that may be necessary, (6) The Scheme of Amalgamation as approved and confirmed by this Court will be effective from 16th May, 1996 i.e. the Appointed Date in terms of the Scheme." 5. Another company namely M/s. Indian Management Advisors and Leasing (P) Ltd. alongwith its Subsidiary, namely, IRS Investments (P) Ltd. also sought .....

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lcutta Instalment Pvt.Ltd. before Joint Commissioner of Income Tax, Special Range, Moradabad(hereinafter referred to as 'Assessing Officer') on 30.11.1996 admitting income of ₹ 375,900/-. Assessing Officer issued notice alongwith questionnaire on 5.10.1998 to M/s. Calcutta Instalment Pvt. Ltd. and thereafter finalised assessment order dated 17.12.1998 assessing aforesaid company on total income of ₹ 2,13,23,530/-. 7. An appeal was filed before Commissioner of Income Tax(Appea .....

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nded that simply because there was merger of certain companies with another company namely, Modifin Pvt. Ltd., it cannot be said that notice issued to M/s. Calcutta Instalments (P) Ltd. was bad and Tribunal has erred in taking a different view. Similar argument is advanced in respect to question-2. 9. Per contra, learned counsel for respondent submitted though notices were issued to M/s. Calcutta Instalment Pvt. Ltd. but there was no company in existence in the name of M/s. Calcutta Instalment P .....

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ged, before assessment with company 'B', Assessing Officer is obliged to take notice of such merger and must pass order in the name of company 'B' for the reason that company 'A' becomes nonest on its merger and hence no order or notice after its merger could be issued by him in the name of company 'A' since it shall be against a nonest person and hence void ab-initio. 12. There are catina of judicial authorities on this subject and we may refer some of such autho .....

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ted company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets." 15. In Commissioner of Income-Tax and another vs. Intel Technology India Pvt. Ltd. (2016) 380 ITR 272(Kart) a Division Bench of Karnataka High Court held "In the present case also, the proceedings had been initiated against a non-existing company/SSS Ltd. Even after the amalgamation of the said company with M/s. Intel Technology .....

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