BEC FINANCE P.LTD,NEW DELHI vs. ITO, WARD-4(3), NEW DELHI
Income Tax Appellate Tribunal, DELHI BENCH: ‘A’: NEW DELHI
Before: SHRI S RIFAUR RAHMAN
PER SUDHIR PAREEK, JM
This aforetitled appeal preferred by the Assessee against the order dated 27.05.2019 passed by the Learned Commissioner of Income Tax (Appeal)-12, New Delhi (hereinafter referred to as ‘Ld.
CIT(A)’), for the Assessment Year (‘AY’) 2010-11. BEC Finance P. Ltd.
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1 The assessee has raised the following grounds of appeal for adjudication: “1. That the assumption of juri iction u/s 147/148 of the Income-tax Act, 1961 (the Act) by the Assessing Officer by way of issuance of notice dated 31.03.2017 u/s 148 of the Act on a non- existent company, already amalgamated with another company on 20th December 2004, is invalid and bad in law and consequently the reassessment so framed in furtherance of such invalid notice is bad in law. 2. That the notice dated 31.03.2017 u/s 148 of the Act issued in the name of M/s BEC Finance Pvt. Ltd., already amalgamated with M/s BEC Impex International Pvt. Ltd. on 20th December 2004, is invalid and bad in law and consequently the reassessment framed in the name of non-existing entity, i.e. BEC Finance Pvt. Ltd., is arbitrary, unjust and not sustainable in law. 3. That without prejudice to Grounds No. 1 and 2 above, the CIT (Appeals) has erred on facts and under the law in passing the ex-parte order without affording to the assessee a reasonable opportunity of being heard and consequently the order as passed by CIT (Appeals) in an ex-parte manner without deciding the issue on merit, is arbitrary, unjust and bad in law. 4. That the addition of Rs.17,62,037/- being the alleged transaction with M/s Unistyle Impex Pvt. Ltd. and M/s Kapil Impex Pvt. Ltd. is arbitrary, unjust and made without proper enquiry and at any rate very excessive. 5. That the above grounds of appeal are independent and without prejudice to one another. Your appellant craves leave to add, alter, amend or withdraw any of the grounds of appeal at the time of hearing.”
the facts of the case may be summarized as that the statutory notice u/s 143(2) alongwith u/s 142(1) of the Act was issued to the assessee / appellant and in response of the same, the assessee furnished relevant requisite details which were examined by the Ld. BEC Finance P. Ltd. 3
AO and further in response to notice u/s 148 of the Act, the assessee filed a copy of return filed on 14.10.2014 in the case of merger company M/s BEC Impex International Pvt. Ltd., declaring loss of Rs. 57,26,106/-. The Ld. AO not found reply of the assessee
/ appellant acceptable by observing that the assessee / appellant using two PAN numers one in the name of BEC Finance Pvt. Ltd.
(AAACB0030A) and other Pan Number in the name of M/s BEC
Impex International Pvt. Ltd. And since the assessee company was amalgamated. The receipts of amalgamated company of Rs.
17,62,037/- ought to have been clubbed with the receipts of new company M/s BEC Impex International Pvt. Ltd. Received during the year relevant to assessment year 2010-11, and as per Ld. AO, the assessee failed to disclose the receipt of Rs. 17,62,037/-. The M/s BEC Finance Pvt. Ltd., the same accordingly added to the income u/s 68 of the Act.
3. The assessee / appellant as well as the aforesaid order by way of appeal and the Ld. CIT(A), dismiss the appeal by stating that appellant has not furnished necessary details about the BEC Finance P. Ltd.
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amalgamation of the assessee company with M/s BEC Impex
International Pvt. Ltd.
4. Heard rival submissions, and carefully scanned the material available on record.
5. In the course of hearing, the Ld. AR by reiterating the ground of appeal express grievance that the Ld. AO erroneously assumed juri iction u/s 147/148 of the Act, by way of issuance of notice dated 31.03.2017 on a non-existent company, which is already amalgamated with another company on 20.12.2004, and consequence the reassessment so framed in furtherance of such invalid notice is bad.
5. the Ld. AR further submitted that the assessee company was amalgamated with M/s BEC Impex Pvt. Ltd. On 20.12.2004, vide order of the Hon’ble Chhattisgarh High Court, order dated
31.12.2004 and as result of such amalgamation the assessee company ceased to exist. The relevant extract of the order of Hon’ble Chhattisgarh High Court as below:
BEC Finance P. Ltd.
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“THIS COURT DOTH HEREBY SANCTION THE SCHEME OF ARRANGEMENT ARRABGENEBT set forth in Schedule-I annexed hereto and DOTH HEREBY DECLARE the same to be binding on all the shareholders creditors of the Transferor and Transferee companies and all concerned and DOTH APPROVE the said scheme of arrangement to be effective from the appointed dated i.e.
20/12/2004. THIS COURT DOTH FURTHER ORDER
1. That all the property, rights and powers of the Transferor company specified in the First, Secund and Third parts of the schedule-II thereto be transferred without further act or deed respectively to the Transferee company and accordingly the same shall pursuant to section 394 (2) of the Companies Act, 1956 be transferred to and vest respectively the Transferee company for all the estate and interest of the Transferor company therein but subject nevertheless to all charges now affecting the same; and 2. That all the liabilities and duties of the Transferred company be transferred without further act of see respectively to the transferee company become the liabilities and duties of the Transferred company; and 3. That all proceedings now pending by or against the Transferor company be continued he or against the Transferee company; and 4. That the Transferor Company and Transferred company do without further application allot to such members of the Transferor company herein the shares in the Transferee Company to which they may be entitled under the said Arrangement, and 5. That the petitioner company do within 30 days after the date of this order cause a certified copy of this order be delivered to the