G.S. GLOBAL PROJECTS PVT. LTD.,KOLKATA vs. D.C.I.T., CC-2(3), KOLKATA, KOLKATA

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ITSSA 29/KOL/2023Status: DisposedITAT Kolkata28 February 2025AY 2012-20135 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessment order framed under Section 153A read with Section 143(3) of the Income Tax Act, 1961, in the name of M/s GS Global Projects Private Limited was invalid. The reasoning was that the company had amalgamated with another entity via an NCLT order effective from 01.04.2015, and the assessment was framed in the name of this non-existent amalgamating company. The Tribunal noted that the assessee had informed the revenue authorities about the amalgamation. Following the decision of a co-ordinate bench in similar cases and the Supreme Court's ruling in PCIT vs. Maruti Suzuki India Limited, the Tribunal held that issuing notices and framing assessments in the name of a non-existent entity is a substantive illegality and not a curable procedural lapse under Section 292B of the Act. Therefore, the assessment order was quashed as a nullity and invalid in the eyes of law. The legal ground raised by the assessee was allowed. Other grounds were left undecided.

What were the facts?

The assessee, G.S. Global Projects Pvt. Ltd., filed an appeal against the order of the Commissioner of Income-tax (Appeals)-20 dated 25.03.2022 for Assessment Year 2012-13. There was a delay of 261 days in filing the appeal, which the Tribunal condoned after considering the affidavit explaining the inadvertent mistake by the company's accountant. The core issue is the validity of an assessment order framed under Section 153A read with Section 143(3) of the Income Tax Act, 1961, in the name of the assessee, which had amalgamated with another company via an NCLT order dated 15.01.2018, effective from 01.04.2015. The assessee had informed the revenue authorities about this amalgamation.

What were the issues?

1. Whether the assessment order framed under Section 153A read with Section 143(3) of the Income Tax Act, 1961, in the name of M/s GS Global Projects Private Limited, which had amalgamated with another company prior to the assessment, is valid? (Question of law and fact, turning on Section 153A and Section 143(3)). Assessee's contention: The assessment order is invalid as it was passed in the name of a non-existent entity, citing a co-ordinate bench decision in IT(SS)A Nos. 20 to 23/KOL/2022 for AYs 2012-13 to 2016-17. Revenue's contention: The revenue argued that a Miscellaneous Application for recalling a similar order was pending adjudication and requested the present appeal be held in abeyance. The judgment does not record any other specific arguments from the revenue regarding the validity of the assessment itself.

Which sections of the Income-tax Act were involved?

Section 153A,Section 143(3),Section 292B

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH, KOLKATA

Before: SHRI RAJESH KUMAR, AM & SHRI PRADIP KUMAR CHOUBEY, JM

For Appellant: Shri Miraj D Shah, AR
For Respondent: Shri Subhendu Datta, DR
Hearing: 12.02.2025Pronounced: 28.02.2025

Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals)-20, (hereinafter referred to as the “Ld. CIT(A)”] dated 25.03.2022 for the AY 2012-13.

2.

At the outset, we note that there is a delay of 261 days in filing the appeal by the assessee for which the condonation of petition along with affidavit of Shri Somnath Samanta, son of Kalipada Samanta, was filed. It was stated in the affidavit that Shri Somnath Samanta, director of M/s GS Global Projects Private Limited was looking after the taxation matter. It was further stated that the accountant of the company, who was assigned with the task of downloading the orders

3.

Consideration the condonation petition along with the affidavit and DR’s contentions, we are of the view that the delay is for sufficient and bonafide reasons and therefore, same is condoned and appeal is admitted for adjudication.

4.

The issue raised in ground no.1 is general in nature and need no specific adjudication for the same.

5.

The issue raised in ground no. 2 is against the order of ld. CIT(A) upholding the assessment order framed u/s 153A of the Act read with section 143(3) of the Act passed by the ld. AO on a non-existent entity.

6.

At the outset, the ld. Counsel for the assessee submitted that the similar issue has been decided by the co-ordinate bench in favour of the assessee in IT(SS)A No. 20 to 23/KOL/2022 for A.Y. 2012-13 to 2016-17, wherein the issue has been decided in favour of the assessee by the Tribunal. The ld. AR therefore, prayed that the present appeal may also be decided by following the said decision of the co-ordinate Bench.

7.

The ld. DR on the other hand submitted that nonetheless the Tribunal has passed the order under similar facts as stated by the ld. AO, however, the Revenue has moved a Miscellaneous Application for

8.

After hearing the rival contentions and perusing the materials available on record, we find that the issue at hand is whether the order passed in the name of the assessee i.e. M/s GS Global Projects Private Limited, which has been amalgamated with other company vide order dated 15.01.2018, passed by the NCLT (National Company Law Tribunal), Kolkata Bench, with effect from. 01.04.2015, is valid or not. The the notices were issued and assessment was framed in the name of non-existent company i.e. in the name of amalgamating company which has already merged with the amalgamated company by vide order of NCLT, Kolkata Bench. We note that even it has been informed vide letters dated 23.07.2018 and 23.11.2018, informing the authorities that the aforesaid company has amalgamated with other company along with various other companies. In view of these facts , we are of the view that issuing notices as well as framing assessment in the name of non existent entity is invalid. The case of the assessee is squarely covered by the order of the Tribunal in ITA No. 22 to 23/KOL/2022 and ors. (supra) which is extracted below:-

“7. We have heard the rival contentions and perused the relevant material available on record. We find that M/S Madanlal Ramanlal Trading Pvt. Ltd. was amalgamated with other company M/S G.S. Global Projects (P) Ltd. Vide order dated 5.01.2018 w.e.f.1.4.2015 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata. We also observe from the facts as placed before us that the fact of the said company having merged with other entity has been intimated to the ld. Assessing Officer vide letters dated 23.07.2018 copy whereof is placed at page no. 60 of the PB. We find that despite the said intimations to the AO , the notice u/s 153A and other notices were issued in the name of amalgamating companies which was non-existent entity on that date and assessment was framed accordingly in the name of non-existent entity. Thus there is no dispute as to that communication by the assessee to the AO to the effect thatM/s. Madanlal Ramanlal Trading Pvt. Ltd. was amalgamated with other company M/S G.S.Global Projects (P) Ltd. vide order dated 05.01.2018 w.e.f.

11.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 28.02.2025.

Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:28.02.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT DR, ITAT, 4. 5. Guard file. BY ORDER, True Copy//

Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata

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