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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: Sh. T. S. Kapoor
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’, NEW DELHI Before Sh. T. S. Kapoor, Accountant Member ITA No. 2866/Del/2019 : Asstt. Year : 2010-11 Radhu Developers (P.) Ltd., Vs Income Tax officer, 811, Pearls Height-1, Netaji Ward-20(4), Subhash Place, Pitampura, New Delhi-110002 Delhi-110034 (APPELLANT) (RESPONDENT) PAN No. AADCR0879A Assessee by : Sh. Suresh Kumar Gupta, CA Revenue by : Sh. S. L. Anuragi, Sr. DR Date of Hearing: 27.05.2019 Date of Pronouncement: 30.05.2019 ORDER This is an appeal filed by assessee against the order of Commissioner of Income Tax (Appeals)-7, New Delhi dated 05.02.2019.
The assessee has taken various grounds of appeal which includes grounds on legal issues as well as grounds on merits. Ground Nos. 1 to 4 are on legal issue whereas ground nos. 5 to 9 are on the merits of the case.
At the outset, the ld. Authorized Representative submitted that he will not be pressing ground no. 1 which is on non-service of notices u/s 143(2) of the Act which may be dismissed as not pressed.
As regards, the legal issues taken by assessee vide ground nos. 2 to 4, the ld. AR submitted that Assessing Officer has initiated the reassessment proceedings without application of mind on the material provided by the investigation wing of the department. In this respect,
ITA No. 2866/Del/2019 2 Radhu Developers (P.) Ltd. the ld. AR took us to paper book page 31 where from for recording reasons for initiating proceedings u/s 148 of the Act was placed and our specific attention was invited to column 8 where the Assessing Officer has written no against the question as to whether assessee had filed return of income. It was submitted that Assessing Officer had wrongly noted this observation as the assessee had duly filed its return of income and which the Assessing Officer vide note 1 at the same page have noted himself. Therefore, it shows that Assessing Officer had not applied his mind as the Assessing Officer failed to take into consideration the return filed by the assessee and therefore, relying on the judgment of Hon’ble High Court Shamshad Khan Vs ACIT (2017) 395 ITR 265, the ld. AR submitted that the reason recorded by Assessing Officer does not indicate application of mind. The ld. AR further submitted that non-application of mind and casual approach of Assessing Officer is also apparent from the fact that Assessing Officer held that assessee had contrived losses from Bharat Rasayan Finance Ltd., whereas in the assessment order there is mention of one more broker M/s Shehshan Shares and Stock Pvt. Ltd. It was submitted that non-mentioning of second broker also shows non-application of mind and casual approach by the Assessing Officer. Further, highlighting the non-application of mind, the ld. AR submitted that as per the allegation of investigation report figure of contrived loss shifted in as per reason recorded was Rs.19,08,996.65 which drastically differs with the contrived losses mentioned in the assessment order at Rs.29,975/-. It was submitted that difference in figures proved that Assessing Officer simply jumped on the allegation on the basis of investigation report and did not apply his mind on the actual figures. It was further submitted that in the reasons recorded, there is no mention of profit shifted out whereas based on the same investigation report, the Assessing Officer mentions shifted out profit
ITA No. 2866/Del/2019 3 Radhu Developers (P.) Ltd. of Rs.43,81,747/- in the assessment order. It was submitted that the huge difference in the figure shows that there is no application of mind by the Assessing Officer on the investigation report. Reliance in this respect was placed on the decision of Pr. CIT Vs SNG Developers Ltd. 404 ITR 312 (Del.) wherein it has been held that the reason to believe must be based on correct facts. The ld. AR further submitted that non-application of mind by the higher authorities is also there as the Deputy Commissioner of Income Tax simply stated “I am satisfied”. The ld. AR submitted that in the form of recording reasons, the Assessing Officer has mentioned u/s 147(b) of the Act being applicable to the assessee whereas the fact remains that Section 147(b) of the Act has been deleted from the statutes w.e.f. 01.04.1989 by virtue of substitution of Section 147 of the Act by Direct Tax law Amendment Act 1989. It was submitted that citing of a Section which has ceased to exist more than 26 years ago shows non-application of mind by Assessing Officer as well as by the approving authorities u/s 151 of the Act. Further arguing, the ld. AR submitted that reasons recorded by the Assessing Officer are void ab initio as the reasons have been recorded in the case of a assessee which did not exist at the time of recording reasons and in this respect our attention was invited to a copy of amalgamation order of Hon’ble High Court dated 20.12.2011 placed at paper book 35 to 42. It was submitted that the company had amalgamated with another company w.e.f. 01.04.2010. The ld. AR invited our attention to paper book page 29 where the letter by the Assessing Officer intimating to the assessee regarding reopening was placed and then the ld. AR further took us to paper book page 30 where the copy of letter written by assessee intimating to the Assessing Officer regarding amalgamation of the assessee company was placed. The ld. AR further submitted that at the time of recording reasons and initiating
ITA No. 2866/Del/2019 4 Radhu Developers (P.) Ltd. proceedings u/s 147 of the Act, it was in the knowledge of the department that the assessee company did not exist as it had amalgamated with another company and which fact is apparent from the copy of order of CIT(A) in the case of assessee itself for assessment year 2006-07 placed at paper book pages 43 to 52 and wherein the ld. CIT(A) has annulled the assessment only on this ground. Therefore, it was argued that initiation of reassessment proceedings itself were void ab initio as these were carried out on a company which was not inexistence and the department was aware of this fact.
The ld. Departmental Representative, on the other hand, submitted that at the time of initiation of reassessment proceedings, it has to be seen that some prima facie material is there and sufficiency and correctness of material is not to be considered at this stage and reliance in this respect was placed on the judgment of Hon’ble Supreme Court in the case of Raymond Woollen Mills Ltd. Vs ITO (1999) 236 ITR 34.
The ld. Departmental Representative further submitted that case of the assessee was reopened on the specific information received from DRI which was passed on to Revenue authorities and therefore, it was a tangible material and the Hon’ble Delhi High Court in the case of Pr. CIT Vs Paramount Communication (P.) Ltd. has held that such information was tangible material on the basis of which reassessment can be initiated. Reliance was further placed on the judgment of Punjab & Haryana High Court in the case of Rakesh Gupta Vs CIT wherein reassessment was held to be justified on the basis of Principles Director of Income Tax (Investigation) report where the assessee had received bogus loss from his broker by code modification. Reliance was further placed on an order of Gujarat High Court in the case of Baldevbhai
ITA No. 2866/Del/2019 5 Radhu Developers (P.) Ltd. Bhikhabhai Patel Vs DCIT where Revenue produced bunch of documents to suggest that entire proposal of reopening of assessment was placed before Additional Commissioner who upon perusal of same recorded his satisfaction that it was a fit case for issuance of notice for reopening assessment and reassessment notice issued was justified. As regards the argument of ld. AR that company was not inexistence at the time of issuance of notice u/s 148 of the Act, the ld. DR invited our attention to the assessment order where the order has been passed by mentioning the name of assessee and by noting down that now it had merged with M/s Radhu Developers Pvt. Ltd. The ld. DR submitted that the Hon’ble Supreme Court in the case of M/s Skylight Hospitality LLP Vs ACIT has held such mistake is a clerical mistake and has held that Section 292B of the Act can be applied to rectify such cases.
The ld. Authorized Representative in his rejoinder reiterated his submissions on the issue of notice on a non-existent assessee. The ld. AR stated that in the case law of Hon’ble Supreme Court relied by ld. DR there was sufficient material before the Assessing Officer while recording the reasons regarding the fact of having it been amalgamated with another company and that is why the Hon’ble Supreme Court has held that it was a case only of a clerical mistake whereas in the case under consideration, no such material was there in the reasons recorded and Assessing Officer recorded reasons only in the case of assessee which was not inexistence at that point of time. It was further submitted that Assessing Officer mentioned the fact of having assessee merged with another company only on the basis of a letter written by assessee. Therefore, it was argued that the case law of Skylight Hospitality LLP is distinguishable on the facts and in this respect the ld. AR relied on a order of Delhi Tribunal in ITA No.5065/Del/2017 where the Hon’ble Tribunal has distinguished the judgment of Skylight Hospitality LLP and our specific attention was invited to para 9.
ITA No. 2866/Del/2019 6 Radhu Developers (P.) Ltd. 8. I have heard the rival parties and have gone through the material placed on record. The last plea argued by the ld. AR regarding issuance of reasons recorded on a non-existent company is a jurisdictional issue and which has to be decided first and therefore, I decide this issue as follows.
It is an undisputed fact that assessee got merged with another company M/s Radhu Developers Pvt. Ltd. vide amalgamation order dated 20.12.2011 passed by Hon’ble High Court of Delhi, a copy of order is placed at paper book page 45 to 52. As per this order, the assessee company stood amalgamated w.e.f. 01.04.2010. The order was passed by the Hon’ble High Court on dated 20.12.2011. The reasons recorded placed at paper book 31 onwards were recorded on 29.03.2017 i.e. after almost six years from the date of amalgamation. The reasons recorded also mentioned the PAN number of erstwhile company which had ceased to exist. When the matter was brought to the notice of the Assessing Officer by assessee, the Assessing Officer though mentioned that this fact of having merged with another company in the assessment order but passed, the assessment order on the same PAN number of amalgamating company and did not issue fresh reasons in the name of amalgamated company. Further, I find that in the case of assessee itself, the ld. CIT(A) has annulled the assessment for assessment year 2006-07 by recording the following findings: “2.6. It is evident that the facts in the present case are similar. Notice u/s 148 was issued on 28.03.2013 in the name of M/s Radhu Securities (P) Ltd. which had ceased to exist on the said date by virtue of its amalgamation with another company M/s Radhu Developers (P) Ltd. The assessment framed in the name of non-existent entity M/s Radhu Securities (P) Ltd., in spite of objections raised by the AR during assessment proceedings cannot be legally sustained in view of the decisions of the Hon'ble jurisdictional High Court of Delhi quoted above. The AO’s view that M/s Radhu Securities (P) Ltd. was very much inexistence in the F. Y. 2005-06 and income earned during that year is to be assessed in the hands of M/s Radhu
ITA No. 2866/Del/2019 7 Radhu Developers (P.) Ltd. Securities (P) Ltd. does not survive as framing of assessment against the non-existent entity/person is a jurisdictional defect and cannot be sustained, in / view of the judicial pronouncements of the jurisdictional High Court referred in paras 2.4 & 2.5 above. Respectfully, following the ratio therein, the impugned assessment is annulled. / This ground of appeal is ruled in favour of the appellant.” 10. The ld. CIT(A) has passed this order on 11.12.2015 i.e. much before the recording of reasons by Assessing Officer. At the time of recording reasons for the year under consideration on 29.03.2017 the order of ld. CIT(A) dated 11.12.2015 can safely be expected to be in the knowledge of Assessing Officer. Since, the Assessing Officer has recorded the reasons in the name of assessee which was not inexistence and the fact of not being inexistence was in the knowledge of department, the notice issued and reasons recorded are void ab initio and therefore, any assessment order passed in consequence thereof is also null and void. The case law of Hon’ble Supreme Court in the case of Skylight Hospitality LLP does not apply to the facts and circumstances of the case as in that case in the reason to believe itself the Assessing Officer had mentioned the fact that company had merged with another company. The Hon’ble Supreme Court in para 6 has noted the reasons recorded. I further find that the judgment of Hon’ble Supreme Court has been distinguished by Hon’ble Delhi Bench in the case of Sindhu Trade Links Ltd. vide order dated 25.05.2018. The Hon’ble Tribunal vide para 9 has dismissed the appeal of Revenue under similar facts and circumstances. For the sake of convenience, para 9 of the said order is reproduced below: “9. We have considered the rival submissions. It is not in dispute that the A.O. recorded reasons for reopening of the assessment and issued notice under section 148 dated 29.03.2016 in the name of M/s.SHL. It is also not in dispute that M/s.SHL was amalgamated with M/s. BCFL vide Judgment of the Hon’ble jurisdictional Delhi High Court Dated 19th January, 2011. Pursuant to such amalgamation, M/s.SHL ceased to exist. Subsequently, this company was also renamed as M/s. STLL. The Ld. CIT(A) verified from the
ITA No. 2866/Del/2019 8 Radhu Developers (P.) Ltd. record and found that intimation of amalgamation of M/s.SHL was provided to various authorities. Copies of some of the letters are also placed in paper book filed by Learned Counsel for the Assessee. The assessee, therefore, intimated to the Revenue Department about the merger of M/s.SHL with other Company prior to the issue of notice under section 148 of the I.T. Act. Thus, the assessee proved that intimation was given to the Revenue Department about the amalgamation through documentary evidences. The Ld. CIT(A) relied upon decision of the Hon’ble jurisdictional Delhi High Court including M/s. Spice Entertainment (supra) which is directly on the point in issue. Since on the date of issue of notice under section 148, M/s. SHL did not exist, therefore, recording reasons in their name or issue notice under section 148 is clearly void abinitio, illegal and invalid. An identical issue has also been considered in the case of the same assessee for A.Y. 2008-2009 referred to above. Therefore, Learned Counsel for the Assessee rightly contended that the issue is covered in favour of assessee by order of the Tribunal. The Judgment of the Hon’ble Delhi High Court in the case of M/s. Skyline Hospitality LLP (supra) is distinguishable on facts. Moreover, it is well settled law that if two views are possible, then the view in favour of the assessee may be adopted. We, therefore, did not find any infirmity in the order of the Ld. CIT(A) in annulling the re-assessment proceedings. Ground No.1 of Departmental Appeal stands dismissed. The Ld. CIT(A) did not decide the appeal on merits because reassessment proceedings have been annulled. We also do not propose to decide the same issue on merit because it is left with academic discussion only. In view of the above discussion, we do not find any merit in the appeal of the Revenue and the same is accordingly dismissed.” 11. In view of these facts and circumstances, I hold that assessment order passed by Assessing Officer is null and void as the reasons has been recorded on a non-existent assessee and that too when the fact of amalgamation was in the knowledge of department. Since, I have decided the jurisdictional issue in favour of the assessee, nothing survives for adjudication and therefore this legal issue is decided in favour of the assessee. Ground No. 1 is dismissed as not pressed and grounds on merits are also dismissed as these were not argued.
ITA No. 2866/Del/2019 9 Radhu Developers (P.) Ltd. 12. In the result, the appeal of the assessee is partly allowed. (Order pronounced in the Court on 30 t h day of May, 2019 at New Delhi)
Sd/- (T. S. Kapoor) Accountant Member Dated: 30/05/2019 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR