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TMI Blog2018 (1) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts and other relevant paper of those companies were found from the residence of Sh. S. K. Jain and Sh. Virendra Kumar Jain and nothing was found at the other addresses which were mentioned in the statutory record of those companies. He further observed that detailed information about the accommodation entry being given by Sh. Surendra Kumar Jain and Sh. Virender Kumar Jain who controlled/managed the companies, was received from the directorate of Income Tax ( Inv.), New Delhi. The AO made an addition of Rs. 3,00,00,000/- in the returned income of the assessee at Rs. 1,74,14,300/- by passing the assessment order dated 19.03.2013 u/s 147 r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 4. Being aggrieved the assessee carried the matter to the ld. CIT(A) and challenged the validity of the assessment framed on a non-existing company. It was submitted that on receiving the notice u/s 148 of the Act, the assessee vide its letter dated 16.04.2012 intimated the AO that the assessee company had amalgamated with M/s Hydel Constructions Pvt. Ltd. and therefore, assessment in the hands of non- existing company was bad in law. The assessee also fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the aforesaid amalgamation is placed at page no. 908 to 918 of the assessee's paper book. It is also noticed that the AO referred the matter u/s 92 CA of the Act of the amalgamated assessee company HDTS to the TPO who passed the order dated 25.10.2010 on the aforesaid entity. The AO also passed the assessment order dated 22.2.2011 u/s 144C / 143(3) of the Act on the aforesaid entity i.e. HDTS which amalgamated in HICS, therefore, it is crystal clear that the entity HDTS was not in existence when the TPO as well as the AO passed their respective order. 9. On a similar issue, the ITAT Delhi Bench I-1, New Delhi having the same combination passed a detailed order authored by the AM in the case of M/s Maruti Suzuki India Ltd. vs. Dy. CIT reported in (2016) 72 taxmann.com. 164. and the relevant findings have been given as under: "10. We have considered the submissions of both the parties and carefully gone through the material le on the record. In the present case, it is an admitted fact that the amalgamating company M/s Powertrain India Ltd. amalgamated with M/s Maruti Suzuki India Ltd. w.e.f. 01.04.2012, as a of scheme of amalgamation duly approved by the Hon'ble Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. That is the plain and le effect in law. The scheme of amalgamation itself provided for this consequence, inasmuch as simultaneous with the sanctioning of the scheme, M/s Spice was also stood dissolved by specific of this Court. With the dissolution of this company, its name was struck off from the rolls Companies maintained by the Registrar of Companies. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with the dissolution as per the provisions of the Companies Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. In view of the aforesaid clinching position in law, it is difficult to digest the circuitious route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. After the sanction of the scheme on 11th April, 2004, the Spice ceased to exit w.e.f 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said "dead person". When notice under Section 143 (2) was sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by invoking the provisions of section 292B. Participation by the amalgamated company in assessment proceedings would not cure the defect because "there can be no estoppels against law." 15. In the present case also when the assessment was framed by the AO vide order dated 29.12.2015 in the name of M/s Suzuki Powertrain India Ltd., the said company had already amalgamated with M/s Maruti Suzuki India Ltd. and therefore, it was not inexistence. Moreover, it is clear from the provisions of Section 170(2) of the Act that in the case of amalgamation, the assessment must be made on the successor i.e. the amalgamated company and not on the predecessor i.e. amalgamating company. Therefore, in the present case, the assessment framed by the AO vide order dated 29.12.2015 on the amalgamating company i.e. M/s Suzuki Powertrain India Ltd. which was not inexistence on the date of passing the assessment order was not valid and as such the same is quashed. Since we have allowed ground No. 1 of the assessee and assessment order is quashed, therefore, no finding is given on the other issues raised by the assessee." 10. It is also relevant to point that the order of the ITAT in the case of Maruti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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