TMI Blog2023 (8) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and thereafter concluded that having regard to the position of law, the assessment order could not be sustained as it had been passed against an entity which was not in existence - We agree with the view taken by the Tribunal. Decided against revenue. - HON'BLE MR JUSTICE RAJIV SHAKDHER AND HON'BLE MR JUSTICE GIRISH KATHPALIA For the Appellant Through: Mr Sanjay Kumar, Sr. Standing Counsel. For the Respondent Through: Mr Ved Jain with Mr Nischay Kantoor, Advocates. RAJIV SHAKDHER, J.: (ORAL) 1. These appeals concern Assessment Year (AY) 2006-07. 2. Via these appeals, the appellant/revenue has assailed a common order dated 14.12.2021 passed by the Income Tax Appellate Tribunal [in short, Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone through the impugned order as well as material placed on record. It is undisputed fact that erstwhile company, M/s. Anirudh Overseas Pvt. Ltd. has ceased to exist w.e.f 01.04.2008 as the same was amalgamated with M/s. Archit Securities Pvt. Ltd. by the order of the Hon'ble Delhi High Court dated 21.01.2011. From the records also, it is seen that vide letter dated 28.06.2011 filed on 27.07.2011 before the AO wherein the assessee had intimated that now in pursuance of the Hon'ble Delhi High Court order dated 21.01.2011, M/s. Anirudh Overseas Pvt. Ltd. has ceased to exist and has merged with M/s. Archit Securities Pvt. Ltd. and requested to cancel the PAN number allotted to M/s. Anirudh Overseas Pvt. Ltd. Despite this information, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave it to the discretion of the revenue to take any action as deemed fit. 3. Inter alia, a perusal of the above extract would show that the Assessing Officer (AO) was informed via letter dated 28.06.2011 [which was filed on 27.07.2011 with him] that pursuant to a scheme sanctioned by this court on 21.01.2011, Anirudh Overseas Pvt. Ltd. i.e., the transferor company had ceased to exist as it had merged with the respondent i.e., Archit Securities Pvt. Ltd. 3.1. It appears that, despite this information having been furnished to the AO, he proceeded to frame an assessment order on 28.02.2014 qua Anirudh Overseas Pvt. Ltd., which was no longer in existence. The Tribunal's order also shows that this very mistake was noticed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the following: 35. In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B. .. 39. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced. Yet, the legislative change, by way of introduction of section 2(1A), defining amalgamation was not taken into account. Further, the tax treatment in the various provisions of the Act were not brought to the notice of this court, in the previous decisions. 5.2. After noting the aforesaid, the Supreme Court distinguished the decision in Maruti Suzuki India Ltd. by adverting to the facts obtaining in the said case. For the sake of convenience, the said paragraphs are extracted hereafter: 35. There is no doubt that MRPL amalgamated with MIPL and ceased to exist thereafter; this is an established fact and not in contention. The respondent has relied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere quashed by the Additional CIT by order dated 30.11.2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated 11.08.2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies. 37. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the present case, the participation in proceedings was by MRPL-which held out itself as MRPL. [Emphasis is ours] 6. The facts recorded by the Tribunal, prima facie, seem to fit into those which were noticed in Mahagun Realtors (P.) Ltd. vis-a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
