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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA & SHRI RAVISH SOOD
This appeal by the assessee is directed against order of Ld. CIT passed u/s. 263 of the I.T. Act, dated. 30.03.2014 and pertains to assessment year 2009-10.
The grounds of appeal read as under: i) On the fact and circumstances of the case as well as in Law, the Ld. CIT has erred in passing Revision Order u/s. 263n of the Allied Blenders & Distillers P. Ltd. ITA no.2872/Mum./2014 Income Tax Act, 1961, without having valid jurisdiction and authority of law. ii) On the fact and circumstances of the case as well as in Law, the Ld. CIT has erred in passing Revision Order u/s. 263 of the Income Tax Act, 1961 for the assessment order u/s. 143(3) of the Act passed by the Ld. AO after making adequate enquiries and application of mind, without considering the facts and circumstances of the case. iii) On the fact and circumstances of the case as well as in Law, the Ld. CIT has erred in considering the order passed u/s. 143(3) of the Income Tax Act. 1961 by the Ld. AO is erroneous and prejudicial to the interest of the revenue, without appreciating the facts and circumstances of the case. iv) On the fact and circumstances of the case as well as in Law, the Ld. CIT has erred in setting aside Assessment order passed by the Ld. AO and directing him to make fresh assessment, without appreciating the facts and circumstances of the case. v) The appellant craves leave to add, amend, alter or delete the said ground of appeal
3. At the outset in this case Ld. Counsel submitted that assessee company has merged that Moonlight Blenders and Distillers Pvt. Ltd. pursuant to the order of the Bombay High Court Allied Blenders & Distillers P. Ltd. ITA no.2872/Mum./2014 dated 05.02.2010. Further Ld. Counsel submitted that the assessment order was passed by the assessing officer after he was informed about the merger. Despite this the assessing officer has passed the assessment order in the name of this assessee company. Which was no longer in existence. Since the assessee was duly merged the assessment order was passed on non-existent company hence such an order is a nullity. Hence Ld. Counsel pleaded that the revision order passed by the CIT on a null and void assessment order is not sustainable. For this proposition Ld. Counsel referred to ITAT Mumbai Bench decision in the case of M/s. West life Development Ltd. vs. Principal CIT in for assessment year 2011-12.
The Ld. Counsel submitted that the matter that company has merged was duly intimated to the Ld. CIT also. But the specific plea that revisionary order on a null and void assessment order is not sustainable was not specifically raised before the LD. CIT-A. Ld. Counsel prayed that since this is a legal issue which goes to root of the matter and that all relevant facts are already on record, the assessee may be allowed to raise this aspect of the ground.
Upon hearing the both the Counsel and perusing the record we find that this aspect of the Ld. Counsel assessee’s grievance is cogent and deserves an adjudication. The assessee has duly taken the Allied Blenders & Distillers P. Ltd. ITA no.2872/Mum./2014 ground that the revision order passed was without jurisdiction and authority of law. Since this aspect has not been adjudicated by the Ld. CIT and it also needs verification as to whether the assessing officer was dully intimated regarding the merger before the passing of the assessment order, we deem it appropriate to remit this aspect of Ld. Counsel of the assessee’s grievance to the file of the Ld. CIT. Ld. CIT shall consider this issue and pass a speaking order after giving the assesse proper opportunity of being heard. In the result this appeal filed by the assessee stands allowed for statistical purposes.