TMI Blog2017 (8) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... h goes to the root of the jurisdiction of the respective impugned assessments and, therefore, the appeals have been clubbed and heard together and are being disposed of by adverting to such preliminary issue. In order to appreciate the controversy, the following discussion is relevant. 2. First, we may take up the appeal for assessment year 2005-06, which is directed against an order passed by CIT(A)-4, Mumbai dated 07/10/2013, which in turn, arises out of an order passed by the Assessing Officer under section 147 r.w.s. 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 29/11/2012. 3. The sum and substance of the preliminary objection is that the assessment order passed by the Assessing Officer in the name of Maharashtra Elektrosmelt Limited is non-est in the eyes of law, inasmuch as on the date of order of assessment the said entity had ceased to exist on account of it having amalgamated with Steel Authority of India Ltd. w.e.f. 01/04/2010. As per the appellant, in terms of a scheme of arrangement sanctioned by the High Court vide order dated 12/07/2011, the assessee company stood amalgamated with Steel Authority of India Ltd. At the time of hearing, the Ld. Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amalgamation of the assessee company with M/s.Steel Authority of India Ltd. The aforesaid communication has been referred to emphasize that even prior to the issue of notice under section 148 of the Act the Assessing Officer was made aware of assessee s amalgamation with M/s. Steel Authority of India Ltd. Our attention has also been invited to communication dated 26/10/2012 addressed to the Assessing Officer, wherein in para 1.4 assessee s amalgamation with its holding company M/s. Steel Authority of India Ltd. has been referred to. In this communication, assessee also pointed out that the Notice under Section 148 of the Act has been issued in the name of MEL on 21st March, 2012 and, it is further stated to the Assessing Officer that MEL was not in existence as at 21.03.2012 i.e. the date of issue of Notice under Section 148 of the Act . In this written submission, assessee, interalia, also referred to the judgment of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. vs. CIT, 247 CTR 500 (Del) to contend that no notice under section 148 of the Act could be issued in the name of the erstwhile company i.e. M/s. Maharashtra Elektrosmelt Limited 5.1 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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/s. MCorp Private Ltd., i.e., the amalgamated company w.e.f. 1.7.2003. The return so filed was picked up for scrutiny assessment vide notice u/s. 143(2) of the Act dated 18.10.2003 in the name of M/s. Spice Corp Ltd., i.e., the amalgamating company. In the course of assessment proceedings, the factum of M/s. Spice Corp Ltd. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 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 28.3.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this factual background, the Hon'ble Karnataka High Court, following the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra), answered the following questions of law in favour 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 incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and purpose of this Act ? ( 3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals ? 11. To the similar effect are the judgements of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 To the similar effect are the decisions of the Mumbai Tribunal in the case of Ambuja Cement Rajasthan Ltd. in WTA No.11/Mum/2014 dated 24/4/2016 and Siemens Technology Services Pvt. Ltd. dated 16/11/2016. The Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani Anr., Writ Peition No.1069 of 2016 dated 08/06/2016, also upheld the proposition that making of assessment on a non-existent entity goes to the root of the jurisdiction of the Assessing Officer to make the assessment. 7.1 Considering the entirety of facts and circumstances of the case, we hereby set-aside the action of the Assessing Officer in framing the impugned assessment against M/s. Maharashtra Elektrosmelt Limited on 29/11/2012, because on that date it was a non-existent concern on account of its amalgamation with M/s. Steel Authority of India Ltd. w.e.f. 01/04/2010 following the scheme of amalgamation approved by the High Court dated 12/07/2011. In other words, the assessment order dated 29/11/2012 is held to be invalid and void-ab- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
