TMI Blog2022 (6) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... not debar the assessee from challenging the proceedings on this ground as there is no estoppel against law. Also as in the case of BASF Ltd [ 2019 (11) TMI 1719 - ITAT MUMBAI] wherein it has been held that that assessment in the name of non existent entity is invalid and has to be quashed and the tribunal has followed the decisions of the Hon ble Apex court in the case of PCIT vs Maruti Suzuki India Limited [ 2019 (7) TMI 1449 - SUPREME COURT] and CIT Vs Spice Infotainment Ltd. [ 2011 (8) TMI 544 - DELHI HIGH COURT] - Decided in favour of assessee. - I.T.A. No. 2343/Kol/2019, C.O. No. 28/Kol/2020 (Arising out of I.T.A. No. 2343/Kol/2019) - - - Dated:- 28-6-2022 - Shri Sanjay Garg, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Appellant : Shri S.K. Tulsiyan, Advocate, Puja Somani For the Respondent : Shri Tushar Dhawal Singh, CIT DR ORDER PER SHRI RAJESH KUMAR, AM: This appeal by the revenue and the cross-objection by the assessee are directed against the order of the Commissioner of Income Tax(Appeals)-22, Kolkata [hereinafter referred to as Ld. CIT(A) ] dated 28.06.2019 for the assessment year 2014-15. 2. Though the Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of the assessee by cancelling and quashing the assessment order on the ground that assessment order was passed in the name of non -existent entity by observing and holding as under:- 07. FINDINGS DECISION: [Grounds 1 to 3 ] 1. I have carefully considered, the submissions of the Ld. AR of the appellant in the backdrop of the impugned assessment order. In these grounds the appellant has objected to the validity of the impugned order on the premise that the order dated 06.02,2018 was passed in the name of M/s IFGL Refractories Ltd, a company which did not exist on the day of passing of the impugned order. From the material on record, it is noted M/s IFGL Refractories Ltd stood amalgamated with IFGL Exports Ltd. vide order of Hon. National Company Law Tribunal dated 03.08.2017 made effective from IFGL Refractories Ltd. On 12.11.2017 the successor company i.e, IFGL Exports Ltd duly informed the Ld. AO about the amalgamation of IFGL Refractories Ltd with IFGL Exports Ltd. Along with its letter dated 12.11.2017 copies of the scheme of arrangement and the certified copies of the orders passed by the NCLT were filed. On these facts the appellant submitted that at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (P) Ltd Vs CWT (347 ITR 664). In the decided case the assessee company had been wound up by virtue of the order of the Court and was amalgamated with the another company with effect from 01.04.1995. Thereafter the AO issued a notice u/s 17 in the name of amalgamating company on 20.01.1997 directing it to file wealth tax return. The. successor filed the return of income and also intimated the AO: that the assessee company had been amalgamated. The AO completed the wealth tax assessment u/s 16(3)/17 in the name of the amalgamating company. The validity of the impugned notice u/s 17 and. the assessment order was challenged before the High Court in writ proceeding. The High Court on the facts observed that the notice was issued to-a person who was no longer in existence at the time of issuing of the notice. It was therefore held the proceedings, for reassessment was vitiated for not giving proper notice under Section 17 of the WT Act and the notice issued in the name of the amalgamating company which was not in existence at that time was legally Untenable.- Accordingly both the notice and the wealth tax assessment order were held to be bad in law and ab initio void. The relevant, obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act., id. Counsel for the assessee before us filed copy of the decision of Hon ble Delhi High Court in the case of Spice Infotainment Ltd. vs. CIT (2012) 247 CTR (Del) 500, wherein it is held that assessment in the name of the company which has been amalgamated with another company and stands dissolved is null and void; assessment framed in the name of a non- existing entity is a jurisdictional defect and not merely a procedural, irregularity of the nature which can be cured by invoking the provisions of S.292B, In the present case also the amalgamation took place vide the order of the Hon ble Calcutta High Court dated 17.04.2008 w.e.f. 01.04.2007 and this Company Aarcee Holdings Pvt. Ltd. has amalgamated with Padmavati Properties Trust Ltd., and no revision order-can be passed on a nonexistent company. Hence, the very premise of the revenue that revision order passed on a non-existent company does not stand. Moreover, the issue is also covered by the decision of the Hon'ble Calcutta High Court in the case-of I.K.Agencies P. Ltd. vs. CIT (2012) 347ITR 664 (Cal) . Since, we find that the issue is a question of fact and/or a technical question, and not a substantial qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural defects which could be rectified if the matter is restored to the file of the AO with the direction to pass the fresh assessment correctly. The ld DR also referred to the provisions of section 292B of the Act and submitted that since the assessee has participated and attended the assessment proceedings but did not point out this fact to the AO and as the provisions of section 292B of the Act unequivocally and in clear terms provides that any such procedures irregularities or lapses committed by the AO are curable if the assessee has participated in the proceedings and was allowed sufficient opportunity of hearing. The ld DR therefore prayed that the appeal of the revenue may be allowed by revering the order passed by ld. CIT(A). The ld DR also referred to the provisions of section 292B of the Act and submitted that since the assessee has participated and attended the assessment proceedings but did not point out this fact to the AO , therefore the assessee cannot be allowed to take advantage of this lapse on the part of the AO as the provisions of section 292B of the Act unequivocally and in clear terms provides that any such procedures irregularities or lapses committed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us is whether the assessment framed in the name of a non-existent company is valid or suffers from the vice of illegality or this is just a curable procedural mistake on the part of the AO while passing the order Considering the facts as placed before us vis a vis the provisions of the Act including that of section 292B of the Act and the various decisions cited before us , we are certainly of the considered opinion that assessment framed in the name of non-existent company is nullity. In our considered view , the assessment order in the name of non-existent company suffers from the substantive illegality and is invalid in the eyes of law. The case of the assessee is squarely covered by the decision of Hon ble Supreme Court in the case of PCIT vs Maruti Suzuki India Limited (supra) wherein it has been held that the assessment order in the name of non existent entity is to be set aside as this is a substantive illegality and not procedural irregularity of the nature as referred to in section 292B of the Act. The Hon ble Apex Court held that mere fact that the assessee has participated in the proceedings before the AO will not cure this substantive illegality and the mere particip ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
