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Facts
The appeals were filed by the assessee against orders related to penalty proceedings and assessment. The assessee company was incorporated in 2009 and struck off by the Registrar of Companies in 2023. A notice under Section 148 was issued in 2017. The assessee claimed not to have received the notice as the company was no longer in existence.
Held
The Tribunal held that the fact of the company being struck off goes to the root of the assessment. Therefore, the appeals concerning the assessment (ITA Nos. 783 & 784/Kol/2024) were restored to the Assessing Officer for re-adjudication. Consequently, the penalty appeals (ITA Nos. 781 & 782/Kol/2024) were allowed as the penalty proceedings would abate.
Key Issues
Whether assessment proceedings are invalid if the assessee company was struck off from the register before the issuance of notice under Section 148. Consequential impact on penalty proceedings.
Sections Cited
250, 271(1)(c), 147, 144, 148, 560
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: SHRI GEORGE MATHAN & SHRI SANJAY AWASTHI
Present for: Appellant by : Shri Deep Agarwal, AR Respondent by : Shri Chandan Das, Add. CIT, Sr. DR Date of Hearing : 25.03.2025 Date of Pronouncement : 25.03.2025 O R D E R Per Bench :
All these captioned appeals filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as “the Ld. CIT(A)”] vide order nos. ITBA/NFAC/S/250/2023-24/1061031468(1), ITBA/NFAC/S/250/ 2023-24/1061032378(1), ITBA/NFAC/S/250/2023-24/1061030994(1) & ITBA/NFAC/S/250/2023-24/1061032055(1) all dated 16.02.2024 passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AYs 2010-11 and 2011-12.
Shri Deep Agarwal, AR appeared on behalf of the assessee and Shri Chandan Das, Addl. CIT, Sr. DR appeared on behalf of the revenue. have been filed by the assessee against the penalty order passed u/s. 271(1)(c) of the Act and & 784/Kol/2024 have been filed by the assessee against the order passed u/s. 147 r.w.s. 144 of the Act.
At the time of hearing, it was submitted by the Ld. AR that the notice u/s. 148 of the Act in the present case came to be issued on 29.03.2017. It was mentioned that the assessee company was incorporated on 16.07.2009. It was mentioned that the assessee company has been struck off by the Registrar of Companies w.e.f. 16.08.2023. For this purpose, the Ld. AR has placed before us a copy of the order of the Registrar of Companies, West Bengal dated 16.08.2013, which is reproduced as under:
A specific query has been made as to why this fact has not been placed before the Assessing Officer. In this regard, the Ld. AR submitted that the assessee did not receive any notice as the assessee company was no more in existence. Another query has also been made as to why this was not produced before the ld. CIT(A). In this regard, there is no response from the Ld. AR of the assessee. Admittedly, this is a fresh evidence which has now been brought to the notice of the Tribunal. However, there was no application for admitting fresh evidence. However, a perusal of the said evidence shows that it goes to the root of the assessment, and we deem it fit to restore this issue to the file of the Assessing Officer for re-adjudication after examining as to whether the assessee has been struck off from the Registrar of Companies. If the assessee has been actually struck off from the Registrar of Companies before issuing notice u/s 148 obviously, the assessment proceedings would become invalid. Therefore, in the interest of justice, the issues raised in & 784/Kol/2024 are restored to the file of the Assessing Officer for re-adjudication after granting adequate opportunity of being heard to the assessee.
& 782/Kol/2024, which are against the penalty proceeding u/s. 271(1)(c) of the Act, since the issues in the quantum appeal are restored to the file of the Assessing Officer for re- adjudication the penalty proceedings would automatically get abated and consequently, the appeal of the assessee in & 782/Kol/2024 are allowed.
In the result, the appeals as per & 784/Kol/2024 are partly allowed for statistical purposes while appeal as per & 782/Kol/2024 are allowed.