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Income Tax Appellate Tribunal, “D” BENCH : KOLKATA
Before: Hon’ble Shri M.Balaganesh, AM & Hon’ble Shri S.S.Viswanethra Ravi, JM]
ORDER Per M.Balaganesh, AM
This appeal by the assessee arises out of the order of the Learned Commissioner of Income Tax(Appeals)-23, Kolkata [in short the ld CIT(A)] in Appeal No. 276/CIT(A)- 23/W-5(3)/16-17 dated 02.05.2017 against the order passed by the ITO, Ward-5(3), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 13.03.2015 for the Assessment Year 2012-13.
The preliminary ground to be decided in this appeal is as to whether the ld. CIT(A) was justified in upholding the assessment framed by the ld. AO in the name of M/s Ekta Retailers Pvt. Ltd. on 13.03.2015, in the facts and circumstances of the case.
Ekta Retailers Pvt. Ltd. A.Yr. 2012-13 3. The brief facts of this issue are that the assessee (M/s Ekta Retailers Pvt. Ltd. ) filed its return of income for assessment year 2012-13 on 25.09.2012 declaring total income of Rs. 21,930/-. The return of income was selected for scrutiny by issuance of notice u/s 143(2) of the Act. During the course of assessment proceedings, the assessee company together with several other companies was proposed to be amalgamated with M/s Deepmala Vyapaar Pvt. Ltd. and the process of amalgamation was pending for approval from Hon’ble Calcutta High Court. The said approval was granted by the Hon’ble Calcutta High Court vide its order dated 23.12.2015 with appointed date from 01.04.2013. In other words, the Hon’ble Calcutta High Court approved the scheme of amalgamation to be effective from 01.04.2013 vide its order dated 23.12.2015. The assessee had also filed the certified copy of the said order with the Registrar of Companies, West Bengal on 28.12.2015 in the prescribed form. Hence the scheme of merger have become complete on 28.12.2015. However the assessment was completed u/s 143(3) of the Act by the ld. AO on 13.03.2015 on which date, the Hon’ble High Court had not sanctioned the scheme of amalgamation. In the assessment, certain additions were made by the ld. AO which were also confirmed by the ld. CIT(A). Aggrieved the assessee is in appeal before us.
We have heard rival submissions. At the outset , we find that the assessee company has been amalgamated with M/s Deepmala Vyapaar Pvt. Ltd. with appointed date from 01.04.2013. Hence the assessment should have been framed only in the hands of successor i.e. M/s Deepmala Vyapaar Pvt. Ltd.. However it is pertinent to note that on the date of completion of assessment proceedings on 13.03.2015, the Hon’ble High Court had not sanctioned the scheme of amalgamation. Now the short question to be decided is whether in this scenario, the assessment framed in the hands of M/s Ekta Retailers Pvt. Ltd. could be construed as valid assessment as per law. The ld. AR fairly agreed for setting aside of this appeal to the file of ld. AO with a direction to make an assessment in the hands of successor company. We are convinced with this argument of 2
Ekta Retailers Pvt. Ltd. A.Yr. 2012-13 the ld. AR and accordingly, in the interest of justice and fair play, direct the ld. AO to frame an assessment in the hands of successor company afresh in accordance with law uninfluenced by earlier decision taken by him in the assessment. The assessee is at liberty to file /furnish additional evidences in support of its contentions before the ld AO. Accordingly, grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 14.09.2018