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Income Tax Appellate Tribunal, “E”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM
आदेश / O R D E R PER R.C.SHARMA (A.M):
This is an appeal filed by assessee against the order of PR. CIT-2, Mumbai, dated 18/09/2017 for A.Y.2007-08 in the matter of order passed by CIT u/s.263 of the Income Tax Act, 1961.
2. The following grounds have been taken by assessee:- 1) On the fact and circumstances of the case as well as in Law, the Learned Principal CIT has erred in passing Revision Order u/s.263 of the Income Tax Act, 1961 for the assessment order u/s.143(3) r.w.s 147 of the Act, without considering the facts and circumstances of the case. 2) On the fact and circumstances of the case as well as in Law, the Learned Principal CIT has erred in passing the revision order u/s.263 of the Income Tax Act, 1961, without serving show cause notice and without providing sufficient opportunity of being heard to the appellant.
M/s. Silverline Trading Co.Ltd., 3) On the fact and circumstances of the case as well as in Law, the Learned Principal CIT has erred in passing Revision Order u/s.263 of the Income Tax Act, 1961 for the assessment order u/s.143(3) r.w.s 147 of the Act, without considering the fact that the assessee company was dissolved on 18.03.2011 and is no longer in existence. 4) The appellant craves leave to add, amend, alter or delete the said ground of appeal.
Rival contentions have been heard and record perused.
Facts in brief are that the assessee is a Domestic Company, engaged in the business of trading in ferrous and non-ferrous metal, paper scrap, commodities and Del credere agents. The assessee filed its return of Income for the year under consideration on 19.05.2008, declaring Total income of Rs.1,17,901/-. Later on, the said company was dissolved by the Registrar of Companies as on 18.03.2011. 4. The return so filed was processed u/s.143(1) of the Income Tax Act, 1961. Subsequently the case was reopened by issuing notice u/s. 148 of the Income Tax Act,1961 and assessment order dated 28.03.2015 was passed u/s. 143(3} r.w.s 147 of the Income Tax Act, assessing the total income at Rs.11,17,901/-" 5. Subsequently PCIT invoked provisions of section 263 of the Act. Though in the order U/s 263 Ld PCIT claimed that notice U/s 263 of the Act was issued however the assessee has never received it as the company already dissolved vide order of Registrar of Companies(ROC) dated 18/03/2011. 6. While giving effect to the order passed by CIT u/s.263, notice to this effect was served by AO on assessee through its director, (copy of which placed on page 3 of the paper book, the assessee come to know about M/s. Silverline Trading Co.Ltd., the said order and asked for copy of the said order and the same was provided by AO on 18/09/2017.
Though assessee has taken 3 grounds on the issue of order passed u/s.263, but effectively it is only one ground which is on the validity of order passed U/s 263 of the Act.
It was argued by learned AR that the company was dissolved by the ROC on 18/03/2011, copy of certificate issued by ROC is placed on page 2 of paper book. Since the company was not in existence on the date of order passed U/s 143(3) r.w.s. 147 of the Act, hence the said order itself is null and void as there cannot be any assessment on non-existing entity. Therefore an order, which was a nullity in the eyes of law had no existence in the eyes of law and, therefore, the same could not have been revised by the Ld. PCIT u/s.263, thereby giving fresh life to the proceedings which had no legal existence in the eyes of law. In this regard reliance is placed on the judgment of Hon'ble Delhi High in CIT vs Escorts Farms Pvt Ltd 180 ITR 80 (Del) and upon the decision of the co- ordinate bench in the case of Krishna Kumar Saraf vs CIT dated 24-09-2015, Steel Strips Ltd v ACIT 53 ITD 553 (Chd) and Westlife Development Ltd Vs. PCIT (ITA NO. 688/Mum/20i6) vide order dated 10/06/2016. In this case Mumbai ITAT held as under:- "11. Thus, after taking into account all the facts and circumstances of the case, n this case, the original assessment order passed u/s 143(3) dt 24-10-2013 was null & void in the eyes of law as the same was passed upon a non-existing entity and, therefore, the Ld. CIT could not have assumed jurisdiction under the law to make revision of a non est order and, therefore, the impugned order passed u/s 263 by the Ld.CIT is also nullity in the eyes of law and therefore the same is hereby quashed."
M/s. Silverline Trading Co.Ltd.,
As per learned AR, even otherwise no order U/s 263 can be passed on the assessee company as the company has already been dissolved on 18/03/2011 and this fact was duly intimated to the AO in reassessment proceedings as well as subsequently vide letter dated 10/12/2015, copy of which placed on paper book page 1. For this proposition reliance was placed upon the decision of Jurisdictional High Court in case of Jitendra Chandaralal Navlani & Anr Vs. UOI ( W P No. 1069 of 2016) order dated 08/06/2016, copy of which submitted during the course of hearing, wherein the Hon'ble High Court held that there cannot be any reassessment proceeding on non -existing company.
Similar view was taken by the A'bad ITAT in case of Milestone Tradelink Pvt. Ltd. Vs ITO ( vide order dated 04/03/2016, wherein Bench held as under:
"11. On due consideration of all these arguments, we are of the view that in the Income Tax Act, there is no provision to communicate this fact to the Commissioner. The assessee has already informed the AO. We have extracted the copy of the letter written by the assessee. We have also made reference of the assessment order vide which the AO has taken cognizance of this fact while he issued notice under section 143(2) of the Income Tax Act. In the order of the ITAT, Kolkata Bench itself has observed that legally when a company amalgamates with another, it loses its identity and no proceedings can be taken in its earlier name. The Bench had taken a different view on account of notorious facts available in that case. No such circumstances are before us. Apart from above, we are of the view that even if the assessee gave consent for taking up the proceedings under section 263 against it, that would not infuse jurisdiction in the Id. Commissioner. In other words, this adjournment application, reply to show cause notice would not infuse jurisdiction to Id. Commissioner. Jurisdiction should be by virtue of operation of the Act and not by the M/s. Silverline Trading Co.Ltd., consent of an assessee. A perusal of section 263 would indicate that before taking any action under section 263, Commissioner has to pursue record and record would include the communication made by the assessee to the AO on 23.7.2013 intimating about the fact of amalgamation. Therefore, we are of the view that the issue in dispute is squarely covered in favour of the assessee by the decision of Hon'ble Gujarat High Court in the case of Khurana Engineering Ltd. (supra). Since we have arrived at a conclusion that initiation of proceedings against HEPL is void ab inito, therefore, we do not deem it necessary to adjudicate on other issues on merit. No proceedings under section 263 can be taken up against HEPL after its amalgamation with Milestone Tradelinks Pvt. Ltd. Therefore, we allow the appeal of the assessee and quash the order passed by the Id. Commissioner under section 263 of the Income Tax Act.]
Reliance was also placed by learned AR on the following judicial pronouncements. Case Title / No. Held CIT Vs. Dimension Apparel Pvt. Ltd (89 Assessment made on non-existing CCH0344) (High Court of Delhi) company is not maintainable. [Para 16] In reply to the argument of revenue that the AO has also mentioned name of amalgamated Company in the order and therefore merely mentioning name of amalgamating company is only a procedural defect curable U/s 292B of the Act, the Court while relying on various other decisions, held that Section 292B can cure technical defects, it cannot cure a "jurisdictional defect in the assessment notice." Therefore framing of assessment against a non-existing entity/person is a jurisdictional defect. [Para l8 & 21] Sapient Consulting Ltd Vs DCIT (ITANo. Hon'ble Tribunal admitted this legal 1728/Del/2014 & 1306/Del/2015) ground which was raised first time before (ITAT-New Delhi) them as the same goes to the root of the issue. We are inclined to hold that the assessment order dated 20.1.14 in the name of non-existent amalgamating company having jurisdictional defect is not sustainable and therefore, we quash the same. ACIT Vs. Chankaya Exports P Ltd. (ITA The Hon'ble Bench relying on the decision M/s. Silverline Trading Co.Ltd., No. 539-544/ Del/2012)(ITAT-New Delhi) of Coordinate Bench in case of Dimension Apparels Pvt. Ltd., held that assessment order passed on non-existing entity is not sustainable.
DCIT Vs Meridien Industries Ltd (ITA As on the date of issue of notice 2044/MDS/2012) (ITAT-Chennai) under sec.148 on 3.3.2011, it is a fact on record that the assessee-company was not in existence. This is because, the company has already been dissolved with effect from 1.4.2006. As a result of merger approved by the Hon'ble Madras High Court through their order dated 1.6.2006, the assessee- company did not exist after 1.4.2006. Therefore, no such company is existing as on 3.3.2011 for the Revenue to issue a notice, even if the subject-matter relates to an earlier assessment year 2004-05, in which period the assessee company was existing. It is not possible to ask any question to a dead person even in respect of the matter which occurred, when that person was alive. This reasoning is equally applicable to the present case, as well. In such circumstances, the notice should have issued to the amalgamated company, M/s. Precot Industries Ltd.
Under these circumstances, we have no reason to deviate from the order of the Commissioner of Income tax( Appeals), who has followed the court order on the subject Rainbow Oxygen P Ltd (ITA No. The AO passed order on non-existing 48/Del/2015 (ITAT New Delhi) company therefore considering various decisions such assessment is not sustainable. Pampasar Distillery Ltd Vs ACIT 15 SOT The question is whether the income prior 331 (ITAT Kolkata) to the date of amalgamation can be assessed in the hands of amalgamating company on the date when amalgamating company does not remain in existence or it is to be assessed in the hands of amalgamated company as a representative M/s. Silverline Trading Co.Ltd., of amalgamating company. The provision of s. 170 would be squarely applicable in respect of the case of amalgamation. By the process of amalgamation the business which was being I carried on by the amalgamating company is succeeded by the amalgamated company who continues to carry on the said business. However, after the amalgamation once the amalgamating company is dissolved it does not remain in existence and, therefore, it cannot be found. Once it cannot be found the income up to the date of amalgamation should be assessed in the hands of amalgamated company i.e. the successor company in the like manner and to the same extent as it would have been assessed in the hands of amalgamating company. Assessment made in the hands of non-existent company is nullity
With regard to the merit of the observation made by CIT, it was contended by learned AR that PCIT failed to point out how the transaction of bank deposit was prejudicial to the interest of Revenue in so far as the same was entered into the regular course of assessee’s business. For this purpose, reliance was placed on the decision of Andhra Pradesh High Court in the case of Delhi Airport Metro Pvt. Ltd., dated 05/09/2017.
In view of the above, it was vehemently argued that action of Ld PCIT invoking provisions of section 263 of the Act against a non-existing entity is contrary to the provisions of law and accordingly without jurisdiction.