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Facts
The assessee, Shivamy Overseas (India) Pvt. Ltd., filed a return declaring a net loss. The assessment order was passed ex-parte under section 144 of the Income Tax Act, 1961. The CIT(A) dismissed the assessee's appeal, holding that no attempt was made to discharge its onus. The assessee's company was struck off from the register of companies.
Held
The Tribunal noted that the issue of maintainability of an appeal filed by a struck-off company had been decided in favor of the assessee by previous judgments. While the CIT(A) had dismissed the appeal ex-parte without proper examination, the Tribunal decided to set aside the CIT(A)'s order and remit the matter back for fresh adjudication.
Key Issues
The primary issue was the maintainability of the appeal filed by a company that had been struck off. Additionally, the Tribunal considered whether the ex-parte orders passed by the AO and CIT(A) were justified given the circumstances.
Sections Cited
144, 250, 139(1), 248, 250
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Income Tax Appellate Tribunal, RAJKOT BENCH (SMC
Before: DR. ARJUN LAL SAINI & SHRI DINESH MOHAN SINHA
आदेश / O R D E R PER DINESH MOHAN SINHA, JM:
Captioned appeal filed by the assessee is directed against the order passed by the National Faceless Appeal Centre [(in short “NFAC/Ld. CIT(A)”] vide order dated 04.10.2023, which in turn assessment order passed by Assessment Unit, Income Tax Department / Assessing Officer under section 144 vide order dated 30.03.2015 of the Income Tax Act, 1961 (in short “the Act”).
Grounds of appeal raised by the assessee are as followed:
1) Ld. CIT(A) erred in passing appellate order u/s. 250 of the Act, which is bad in law and hence liable to be quashed and set aside as null and void.
ITA 393/Rjt/2023 (AY 2012-13) Shivamy Overseas (India) P. Ltd. v. ITO 2) Ld. CIT(A) erred in law as well as on facts in contending that the appellant did not furnish submission and presuming that the appellate does not wish to pursue the appeal.
3) Ld. CIT(A) erred in law as well as on facts in ignoring the fact that the appellate had already made submission during the physical era and the matter was remanded to Ld. AO for remand report, which was pending and hence no appellate order could have been passed.
4) Ld. AO erred in law as well as on facts in passing assessment order u/s. 144 of the Act, which is bad in law and without appropriate jurisdiction.
5) Ld. AO erred in law as well as on facts in making addition of Rs. 1,20,83,140/- on account of difference in opening stock, Ld. CIT(A) erred in law as well as on facts in confirming the same.
6) Ld. AO erred in law as well as on facts in making an addition of Rs. 13,40,000/- on account of alleged unexplained cash deposit in bank account on the basis of CIB information, Ld. CIT(A) erred in law as well as on facts in confirming the same.
7) Ld. AO erred in law as well as on facts in making an addition of Rs. 87,480/- on the sale basis of form no. 26AS, Ld. CIT(A) erred in law as well as on facts in confirming the same.
Brief facts of the case are that the appellant is a Private Limited Company has filed return of income declaring net loss of Rs. 30,74,602/- u/s. 139 (1) of the Income tax x Act, 1961. The appellant company is assessed by the Income tax officer, ward- 1(1)(5), Rajkot. on one of the directors Yogeshbhal Premjibhai Suvariya who was main director for Shri responded the same nor informed other two Yogeshbhal The hearing notices issued were underground since 2 years Shri Premjibhai has received notices but not directors about the assessment proceed proceedings were not properly attended and the order was passed u/s this appeal proceedings. And as such the 144 of the Act which is disputed in this appeal.
ITA 393/Rjt/2023 (AY 2012-13) Shivamy Overseas (India) P. Ltd. v. ITO 2) That as per audit report there was opening stock of Rs. 12083140/- and no closing stock was shown as entire stock as well as purchases were sold during the year under consideration.
3) That the turnover of the appellant is Rs. 6,27,12,826/- and other income at Rs 10,64,966/- which Includes various discount and commission income. There are sales in cash also and the business cash generated is deposited in bank account.
4) That the appellant has shown commission income of Rs. 54054/-. However TDS was not claimed through oversight as the party has not issued from 16A. Moreover the appellant has received discount of Rs 31752/- which has also been shown in the return of income.
5) That at the time of passing the ex-parte order Id. AO has made addition of opening stock of earlier year at Rs. 1,20,83,140/-, cash deposited in bank account at Rs. 13,40,000/- on the basis of CIB information and Rs. 87,480/- being difference in receipt and form 26 AS. Thus, total addition/ disallowances are made at Rs. 1,35,10,890/-and are disputed in this appeal.
The assessee filed an appeal before the Commissioner of Income Tax(Appeals), against the order on 30.03.2015. That the Ld. CIT(A) has dismissed the appeal with following observation:
I do not see any reason to differ with the findings of the AO. Since no attempt has been made by the appellant to discharge its onus. Hence, respectfully following the above-mentioned judicial pronouncements and in view of the facts of the case, the appeal is hereby dismissed.
That the assessee challenged the legality and validity of impugned order dated 04.10.2023 by moving of an appeal before the Tribunal.
During the course of hearing, Ld. AR of the assessee has submitted that, it was an ex-parte order by the Ld. AO as well as Ld. CIT(A). The name of the company 3 ITA 393/Rjt/2023 (AY 2012-13) Shivamy Overseas (India) P. Ltd. v. ITO was removed from the company registrar by the Ministry of Corporate Affairs Government of India. The Ld. AR of the assessee further stated that the assessee filed return of income shown stock detail as well as the purchased the sale details, the cash deposited in the bank of the sale proceeded of Rs. 13,40,000/- as a commission income is also shown in the return income. However, the case was ex-parte decided by the Income Tax Officer without looking to the facts and added income of the assessee and passed an ex-parte order u/s. 143 of the Act.
On the other hand, the Ld. Sr. DR has submitted, that the assessee’s company was removed from the register of ministry of corporate Affairs Government of India, who has filed an appeal and how the appeal is maintainable.
We have heard both the parties and perused the material available on record. noted that the objection of Ld. Sr. DR about the maintainability of appeal. the Ld. CIT(A) has already dealt with the issued and placed reliance on the recent judgement of the Hon'ble ITAT New Delhi 'B' bench pronounced in (AY 2014-15), (AY 2014-15), ITA No. 5338/DEL/2011 (AY 2008-09) dated 27.05.2022 in the group cases wherein the afore-mentioned substantial question of law has been answered to and held that the appeal filed by the struck off appellant company or the appeal filed by the Revenue against the struck off company are maintainable. The relevant portion of the said decision is reproduced below:
"(1) Though the Assessee company has been struck off under Section 248 of the Companies Act 2013, in view of sub-sections (6) and (7) of Section 248 and Section 250 of companies Act 2013, the Certificate of Incorporation issued to the Assessee company cannot be treated as cancelled for the purpose of realizing the amount due to the company and for payment or discharge of the liability or obligations of the company, we are of the opinion that the Appeal filed by the struck off Assessee Company or Appeal filed by the Revenue against the struck off Company are ITA 393/Rjt/2023 (AY 2012-13) Shivamy Overseas (India) P. Ltd. v. ITO maintainable. Therefore, by rejecting the contention of the Ld. DR, we hold that the present Appeal filed by the Assessee (struck-off company) is maintainable and the same has to be decided on merit. (ii). Since, we held that, the present Appeal is maintainable, the Counsel appearing on behalf of the Assessee Company has every locus to represent the Assessee in the present Appeal (ii) Office is directed to list the appeal before the regular Bench for hearing on 07/09/2022.
The and ITA No. No. 2788/Del/2019 are also filed by the respective assessee, wherein the Ld. DR has also sought for dismissal of the appeal as not maintainable on the same ground of striking off of Companies by ROC. We have already decided the question of law and held that the Appeal is maintainable even after striking off of the assessee company in the said ratio is also applied in the above two appeals. Accordingly, we direct the Office to list the appeal in ITA No. 2868/Del/2019. & 5338/Del/2011 before a Regular Bench on 07/09/2022.
We direct the department of Revenue to widely circulate the order in the interest of justice.”
We note that the Ld. CIT(A) has issued several notices to giving due opportunity for hearing and submitted documents but the assessee did not avail the opportunity. We are considered the above situation and we set aside the order of Ld. CIT(A), and the matter is remitted back to the file of the Ld. CIT(A) with direction that entire facts are to be examined and also examined the status of the Company after given due opportunity to the appellant/ Authorized Person.
In the result, this appeal of the assessee is allowed for statistical purposes, in above terms.
Order is pronounced on 18 /02/2025 in the open court.