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TMI Blog2022 (6) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation period. 3. The common issue raised in all the grounds of appeal by revenue is against the order of ld. CIT(A) in cancelling and quashing the assessment framed by the AO u/s 143(3) of the Act on the ground that order was passed in the name of amalgamating company which is a non non-existent company on the date of passing the order. 4. The facts in brief are that the assessee company M/S IFGL Refractories Ltd having PAN No. AAACI6003L was amalgamated with M/s. IFGL Exports Ltd. vide order dated 3.08.2017 passed by the NCLT and consequently M/S IFGL Refractories Ltd has ceased to exist. The said amalgamating entity filed its return of income for A.Y. 2014-15 on 28.11.2014 declaring a total income of Rs. 40,57,33,530/- which was revised on 12.05.2015 at the same income. The case of the said company was selected for scrutiny and assessment u/s 143(3) of the Act dated 06.02.2018 was framed by the AO in the name of M/S IFGL Refractories Ltd with PAN No. AAACI6003L which was a non existent company. Pertinent to state that it was intimated to the AO vide letter dated 12.11.2017 that M/S IFGL Refractories Ltd has merged and amalgamated with M/s. IFGL Exports Ltd. vide order of NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjustified in framing assessment in the name of a non-existent company and also passing the assessment order in the name of M/s IFGL Refractories Ltd. 2. After giving a careful consideration to the facts of the case and the material available on record, it is noted that the Ld. AO was duly informed about amalgamation of M/s. IFGL. Refractories Ltd and its consequent winding up without liquidation. However M/s IGFL Exports Ltd-i.e. the successor company appears to have been never impleaded by the Ld, AO in the assessment proceedings. It is relevant to note that the orderof the assessment was passed in the name of M/s IFGL Refractories Ltd even though in November 2017, the AO was given proper information along with relevant documents substantiating the winding up of M/s IFGL Refractories Ltd. Hence it can be safely concluded that prior to passing of the assessment order the Ld. AO was duly informed that M/s IGFL Exports Limited was the lawful successor of M/s IFGL Refractories Ltd on account of order of the NCLT approving amalgamation. It is-observed that the Hon'ble Supreme Court as well as various Hon'ble High Courts have, time and again held that on dissolution or wind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was insufficient to initiate proceedings against the appellant who had taken over the liability of M/s Abhudey Properties (P) Ltd. earlier to the issue of such notice and such fact was also made known to the Revenue. 24. We, thus, set aside the reassessment proceedings on that ground alone. In view of our aforesaid finding, there is no necessity of going into the other grounds of appeal on merit. 25. Appeals are thus allowed on the aforesaid ground atone and the reassessment proceedings are quashed. " . 4. Following the above judgment, I note that the coordinate Bench .of the Hon'ble Calcutta High Court in the case: of C1T Vs Aarcee Holdings Pvt-Ltd (GA No. 1921 of 2014) dated 10.09.2014 upheld the order of the Tribunal quashing the revisionary order passed u/s 253 in the name of amalgamating company instead of the successor company. The relevant extracts of the judgment is as. follows: "This appeal under section 260A of the Income. Tax Act has been preferred against the order dated 10th January, 2014 passed, by the Income Tax Appellate Tribunal 'C Bench, Kolkata in IT A No. 570/Kol/2011 for the assessment year 2006-2007 on the following question : "Whether, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the AO at the material time was aware of the amalgamation the assessment u/s 143(3} was still framed in the name of M/s IGFL Refractories Ltd. In my considered view therefore the assessment order dated 06.02.2018 passed in the name of M/s IGFL Refractories Ltd suffered from inherent jurisdictional defect and was null and void. Following the binding precedent set by the Calcutta High Court, the impugned order passed u/s 143(3) is hereby cancelled. In effect, Ground Nos. 1 to 3 stands allowed. Since the Ground Nos. 1 to 3 challenging the validity of the order passed u/s 144C/143(3) is allowed,, other Ground Nos. 4 to Hand additional grounds objecting to the merits of the additions/disallowances have become academic in nature and are therefore dismissed as infructuous. In the final result, appeal filed by the appellant is treated as partly allowed". 6. The Ld. DR vehemently argued before the bench that admittedly the assessee was merged and amalgamated with the another company vide order of NCLT dated 03.08.2017 which was also filed by the assessee before the AO during the assessment proceeding and the assessment was made in the name of company which was also named ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments as made by the ld DR, contended that the assessment was framed in the name of the non-existent company with old PAN AAACI6003L which has already merged with another entity vide order dated 03.08.2017 and consequently the assessment in the name of non-existent company is invalid and void ab-initio and has rightly been quashed by ld CIT(A). The Ld. AR submitted that the fact of M/S IFGL Refractories Ltd having merged with M/S IFGL Exports Ltd was duly intimated to AO vide letter dated 12.11.2017. The Ld. AR submitted that the action of the ld.AO passing the assessment order in the name of non-existent company is a substantive illegality which is not curable at all and renders the assessment order as invalid and nullity. The ld. AR argued that this is not a procedural irregularity which can be rectified by then ld. AO. The Ld. AR relied on a couple of decisions in defense of his arguments namely i) PCIT Vs Maruti Suzuki India Limited (2019) 107 taxmann.com 375 (SC) and ii) BASF India Ltd. Vs DCIT (2020) 121 taxmann.com 129. The Ld. AR finally prayed before the bench that assessment order was rightly cancelled by the first appellate authority as being nullity and invalid in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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