SRS BUILDCON PVT. LTD.,NEW DELHI vs. DCIT, CENTRAL CIRCLE-II, FARIDABAD
Income Tax Appellate Tribunal, DELHI BENCH ‘F’’ : NEW DELHI
Before: SHRI MAHAVIR SINGH & SHRI S. RIFAUR RAHMAN
PER BENCH :
These 7 appeals have been filed by two different Assessees against the separate orders of the Ld. CIT(A)-2, Gurgaon. The first and foremost common issue raised in all these 7 appeals, is as regards to the assessment framed u/s. 153A of the Act is bad in law, for the reasons that assessments were framed on the non- existent entities. Since the appeals are inter-connected, therefore, we are dealing with the facts of ITA No. 3626/Del/2018 (AY 2012-13). For this, both the assessees has raised the following common ground in their respective 7 appeals:-
“That having regard to the fact and circumstances of the case,
Ld. CIT(A) has erred in law and on facts in confirming the action of the AO in assuming juri iction and issuing of notice u/s. 153A of the Act, more so when the notice was issued in the name of non-existing entity and that too without giving any opportunity of hearing.”
Brief facts of the case are that assessee before the AO filed the identical letters in two companies for all the 7 assessment years, wherein, it was pleaded that the assessee company has merged with M/s BTL Holding Company Ltd. The specimen of one of the letters reads as under:-
Date 01.09.2014
The Asstt. Commissioner of Income Tax,
Central Circle-II, Faridabad
R/Sir,
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Subject: Request for adjournment in the case of M/s SRS Buildcon Private
Limited (now merged with M/s BTL Holding Company Limited) for AY 2007-08 u/s. 143(3)/153A.
The captioned case is fixed for hearing for today before your goodself. It is humbly submitted that the assessee has received the notice of hearing only few days back. The assessee is compiling the information asked for and require time for the same. In these circumstances, it is humbly requested that the case may please be adjourned for a few days. It is also humbly submitted that the company had since been would up and merged with another company. Copies of High Court order for merger at attached.
Accordingly, you are requested to kindly do the needful as per law.
Thanking you,
Yours faithfully,
For M/s SRS Buildcon Pvt. Limited,
(merged with BTL Holding Company Ltd.), (Authorised Representative)”
Ld. Counsel for the assessee stated that assessment in this assessment year was passed u/s. 153A and read with 143(3) of the Act vide order dated 27.3.2015 despite the aforesaid objection. Aggrieved, assessee preferred appeal before the Ld. CIT(A) and Ld. CIT(A) held as under:- “Ground No. 2 & 3:- are challenging the assumption of juri iction by Assessing Officer to complete the assessment u/s. 153A(1)(b) and non issue of notice u/s. 143(2). It is seen from the facts of the case that the search in SRS group to which the appellant belongs was held on 09.05.2012. Thereafter a survey u/s. 133A was carried out at the business premises of the appellant Annexure A-9 being hard disc and FDRs as per A-2,
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A-5 and A-11 were seized from appellant’s premises. Thereafter, notice u/s. 153A(1)(a) was issued to appellant to file ROI and notices u/s. 14392) and 142(1) were issued before completion of the case u/s. 153A(1)(b).
The AR has raised an issue that the appellant company was not in existence at the time issue of notice u/s. 153A on 06.08.2013 by the Assessing Officer, having been merged with ‘BTL Holding Company Ltd.’ and appellant has argued that the assessment completed on a non-entity, is void ab initio.
A Delhi High Court order regarding merger of the appellant company with ‘BTL Holding Company Ltd.’, has been submitted in this regard which is dated 16.03.2012 Para 17 of this order states, “it is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty, taxes or any other charges, if payable in accordance with law; or permission / compliance with any other requirement which may be specifically required under any law.”
Therefore, it is clear that all pending proceedings and liabilities of the companies which have been merged, will have to be duly discharged by them. Therefore, as the appellant itself has never ever raised this issue when statutory notices were being sent on it, nor did it ever raise the issue of merger during assessment proceeding before Assessing Officer and filed all the replies as from BTL Holding Company Ltd., only, the ground of appeal raised on this issue cannot be accepted. This is the reason also why the Assessing Officer has not mentioned the issue of merger in his order. The Return of Income filed by the appellant on 10.09.2013 has been verified as being BTL Industries Ltd.
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Therefore, the ground taken by appellant challenging the completion of assessment u/s. 153A(1)(b) on a merged company and non issue of notice u/s. 143(2), is baseless and the assumption juri iction of Assessing Officer is correct and regular. The grounds are therefore dismissed.”
4. Ld. Counsel for the assessee first of all, drew our attention towards the order of the Hon’ble Delhi High Court dated 16.03.2012 passed in CO.PET.519/2011 in the matter of M/s BTL Impex (India ) limited and Ors. relating to approving the Scheme of Amalgamation of BTL Impex (India) Limited, SRS Buildicon Private
Limited, SRS International Limited, BTL Industries Limited and many other companies, by holding as under:-
“17. In view of the approval accorded by the Shareholders,
Secured and Unsecured Creditors of the Petitioner
Companies; affidavit/report filed by the Regional
Director, Northern Region and the Official Liquidator, attached with this Court, to the proposed Scheme, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Act. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the