TMI Blog2018 (3) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... ullity being bad in law and the same is liable to be cancelled. - Decided in favour of assessee - I.T.A. No. 674/Kol/2016 - - - Dated:- 23-3-2018 - Shri P. M. Jagtap, AM And Shri Aby. T. Varkey, JM Shri Ravi Tulsiyan, FCA appearing on behalf of the Assessee Shri P.K. Srihari, CIT (DR) appearing on behalf of the Revenue ORDER Per P.M. Jagtap, AM This appeal filed by the assessee is directed against the order of Ld. CIT(A) 6, Kolkata dated 29.02.2016. 2. The relevant facts of the case giving rise to this appeal are that the assessee is a company which is engaged in the business of share dealing and investment. The return of income for the year under consideration was filed by it on 14.08.2008 declaring a total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration as unexplained cash credits. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal. 4. In Ground No. 12 of this appeal, the assessee has raised a preliminary issue challenging the validity of the order of the A.O. passed under section143(3)/263/147/143(3) on the ground that the same is passed in the name of non-existent company. 5. The learned counsel for the assessee submitted that the return of income of the assessee for the year under consideration was filed on 14.08.2008 in the name of M/s. Basundhara Goods Pvt. Ltd. and even the assessment 147/143(3) was originally completed by the A.O. on 30.04.2010 in the same name. He submitted that the said company na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT 186 ITR 278 (SC). 2. M/s. Spice Infotainment Ltd. vs CIT 247 CTR 500 (Delhi). 3. Principal CIT vs Maruti Suzuki India Ltd. 85 taxmann.com 330 Delhi. 4. M/s. Pampasar Distillery Ltd. vs ACIT 15 SOT 331 (Kolkata). 5. M/s. Pawansut Management Ltd. vs ITO (ITA No. 1524/Kol/2016 dtd. 14.02.2018. 6. ACIT vs M/s. Garuda Imagining Diagnostics (P) Ltd. (ITA No. 449- 451/Del/2016 dtd. 05.01.2018). 6. The Ld. CIT DR, on the other hand, contended that since amalgamated entity had participated in the assessment proceedings without raising any objection, it should be precluded from raising this issue now at this stage before the Tribunal for the first time. He also contended that the defect in passing the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 having already amalgamated with M/s. Param Mitra Investments Pvt. Ltd. with effect from 01.04.2013 as per the order of the Hon ble Delhi High Court passed on 17.12.2013. 8. In the case of M/s. Saraswati Industrial Syndicate Ltd. (supra) cited by the learned counsel for the assessee, the issue of effect of amalgamation or merger of two or more companies was considered by the Hon ble Supreme Court and it was held that the amalgamation is a blending of two or more existing undertakings into one undertaking and when one is absorbed into or blended with another, the amalgamating company loses its entity. It was held that when two companies amalgamate and merge into one, their respective rights or liabilities are determined under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be cured by invoking the provisions of section 292B of the Act. 10 In the case of Pampasar Distillery Ltd. vs ACIT 15 SOT 331, the Co-ordinate Bench of this Tribunal also had an occasion to consider a similar issue in the light of Section 170 of the Income Tax Act which deals with the succession to the business otherwise than on death and it was held by the Tribunal that the provision of Section 170 would be squarely applicable in respect of the case of amalgamation. It was held that by the process of amalgamation, the business which was being carried on by the amalgamating company is succeeded by the amalgamated company which continues to carry on the said business. It was held that the amalgamating company therefore, is assessable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009. A search, however, was conducted in the case of the said company and not only a notice under section 153A was issued on 23rd October, 2013 in the same name but even the assessment order under section 153A/143(3) was passed on 30th March, 2015. The said assessment framed under section 153A/143(3) was quashed by the Tribunal vide its order dated 05.01.2018 passed in ITA No. 449-451/Del/2016 holding that the entire proceedings initiated against the assessee company, which did not exist, was void abinitio and bad in law. It was also held by the Tribunal that the fact that the department came to know later on about the merger of the assessee company with the transferee company would not make any difference. 12. Keeping in view the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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