TMI Blog2018 (4) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... application. 3. Briefly, the facts of the case are that assessee-company filed return of income declaring loss of ₹ 4,73,716/- on 30th September, 2009. It was processed under section 143(1) of the I.T. Act. The case was later on selected for scrutiny assessment. The A.O. in the assessment order made certain additions to the return of income and computed the net taxable income of ₹ 7,77,14,414/- and passed the order under section 143(3) of the I.T. Act on dated 29th December, 2011. 4. The assessee challenged the additions on merits as well as validity of the assessment proceedings before the Ld. CIT(A). During the course of appellate proceedings, the assessee-company filed an order dated 30th May, 2011 of the Registrar of Companies, NCT of Delhi and Haryana under section 560(5) of the Companies Act, 1956 mentioning that w.e.f. 30th May, 2011, the name of the assessee-company is struck-off the register and the company stood dissolved. In view of the same, the assessee-company submitted that assessment order dated 29th December, 2011 passed by the A.O. has been passed on a non-existent company and therefore, void abinitio. The assessee-company also filed copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments were submitted in O/o. Assessing Officer after completion of the assessment proceedings. It was also reported that the then Ld. CIT(A) wrote a letter to the ROC, Delhi and called for copies of the affidavits filed by the Directors of the assessee-company while applying for dissolution of the Company. The copies of the same have been forward to the Ld. CIT, Delhi-1. It was stated in the affidavit filed on behalf of the Company that assesseecompany does not have any dues towards income tax/sales tax/central excise/banks and financial institutions or other statutory authorities. The A.O. however, reported that since legitimate tax due based upon balance sheet of the assesseecompany, therefore, there were dues against the assesseecompany. The matter was taken-up with the ROC to recall the order which have been obtained by fraudulent means. However, reply received from ROC states that revival of the subject Company under section 560(6) of the Companies Act, is not within the powers of the ROC and the assessee-company has to move before Hon ble High Court for revival of the Company and recovery of the dues. The opinion from the Standing Counsel is awaited. However, opinion from S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held as under : When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies under Section 560 of the Companies Act. in these circumstances, the Tribunal rightly held that there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. Vs. ITO 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arises. Dismissed. 6.2. Judgment of the Hon ble Delhi High Court in the case of Pr. CIT vs. Nokia Solutions Network India (P.) Ltd., (2018) 90 taxmann.com 369 (Del.) in which it was held that assessment made in case of non-existent entity is a nullity. 6.3. Judgment of the Hon ble Delhi High Court in the case of Pr. CIT-6, New Delhi vs. Maruti Suzuki India Ltd., (2017) 85 taxmann.com 330 (Del.) / 397 ITR 681 in which it was held as under : Where during pendency of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. Such, mistake should not nullify the proceedings which are otherwise valid and no prejudice had been caused. 7.2. Judgment of the Hon ble Calcutta High Court in the case of CIT, Central-1 vs. M/s. Shah Wallace Distilleries Ltd., 2016-TIOL-1228-HC-KOL-IT, in which, the Amalgamation Order dated 31st March, 2005 was not pertaining to A.Y. 2002- 2003 in question. Therefore, the assessment order could not have been declared nullity. In the instant case, the financial year ended on 31st March, 2002 whereas, the amalgamation took place w.e.f. November, 2002. The Ld. D.R, therefore, submitted that appeal of the assessee may be dismissed. 8. We have considered the rival submissions and perused the material on record. The assessee-company placed on record the order of ROC, Delhi and Haryana, dated 30th May, 2011 whereby, pursuant to Section 560(5) of the Companies Act, 1956, the name of the assessee-company has been struckoff in the Register of Companies and the assessee-company is dissolved. Therefore, w.e.f. 30th May, 2011, the assesseecompany became non-existent and stood dissolved. The A.O. however, passed the assessment order on 29th December, 2011 i.e., after dissolution o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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