ITO, WARD - 4(3), KOLKATA, KOLKATA vs. ARAVALI POLYMERS PVT. LTD., KOLKATA

At the outset, it is observed that the assessee in the Cross Objection has raised various legal issues including the issue relating to the maintainability of the appeal filed by the Revenue. In this regard, the ld. Counsel for the assessee has submitted that the present appeal is filed by the Revenue, with respondent being Aravali Polymers Pvt. Limited. He has invited our attention to the copy of registration certificate issued by the Registrar to show that the Company namely M/s. Aravali Polymers Pvt. Limited has been converted to LLP namely M/s. Aravali Polymers LLP on 13.08.2010 itself. He has also invited our attention to the copy of letter dated 13.10.2010 filed with the Assessing Officer, i.e. the Income Tax Officer, Ward-4(3), Kolkata giving intimation of the said conversion. He has also pointed out from the copy of order dated 18.11.2010 passed by the concerned Commissioner, i.e. Commissioner of Income Tax, Kolkata-II, Kolkata under section 127(2) of the Act that the case of the assessee was transferred from the charge of the ITO, Ward-4(3), Kolkata to ITO, Ward- 42(3), Kolkata with a copy of the said order marked to ITO, Ward-4(3), Kolkata with the request to immediately transfer all the records of the case to the ITO, Ward-42(3), Kolkata. He has contended that the ITO, Ward-4(3), Kolkata thus was fully aware of the conversion of M/s. Aravali Polymers Pvt. Ltd. to M/s. Aravali Polymers LLP on 13.08.2010 as well as the transfer of the case from his jurisdiction to the jurisdiction of ITO, Ward-42(3), Kolkata, when the present appeal was filed by him on 22.12.2010 with M/s. Aravali Polymers Pvt. Ltd. as respondent and this position clearly evident from the relevant documentary evidence filed by the ld. Counsel for the assessee has not been disputed even by the ld. D.R.

It is observed that Section 58 of the Limited Liability Partnership Act, 2008 deals with registration of LLP and effect of conversion of a firm, ./2010 Assessment year: 2001-2002 & C.O. No. 10/KOL/2011 (in Assessment year: 2001-2002 Page 3 of 5 Private Limited Company or an unlisted Public Limited Company to LLP and as pointed out by the ld. Counsel for the assessee, Clause (c) of sub- section 4 of the said section specifically provides that the firm or the Company, as the case may be, on and from the date of registration specified in the Certificate of Registration, shall be deemed to be dissolved and removed from the records of the Registrar of Firms or Registrar of Companies as the case may be. The Company, namely M/s. Aravali Polymers Pvt. Limited thus was removed from the records of the Registrar of Companies on 13.08.2010, i.e. the date of which it was converted and registered as LLP as per the Certificate of Registration issued by the Registrar and the same was not in existence when the present appeal was filed by the Revenue on 22.12.2010.

In the case of CIT –vs.- Intel Technology India (P) Limited reported in 232 taxman 279 cited by the ld. Counsel for the assessee, the assessee- Company was amalgamated/merged with another Company w.e.f. 01.04.2004 and the assessment order passed by the Assessing Officer on 27.03.2006 on the assessee-Company after being intimated about its merger /amalgamation was held to be without jurisdiction and null and void by the Hon’ble Karnataka High Court. It was also held by the Hon’ble Karnataka High Court that the provision of section 292B of the Act could not make such assessment valid as the defect/omission to incorporate the name of successor-Company in assessment order was not a procedural irregularity, but it went to the root of the matter. To the similar effect is the decision of the Hon’ble Delhi High Court in the case of CIT –vs.- Dimension Apparels P. Limited reported in 370 ITR 288 cited by the ld. Counsel for the assessee, wherein it was held that the amalgamating Company, as a result of amalgamation, had ceased to exist and the order of assessment passed by the Assessing Officer on amalgamating Company after the date of amalgamation was not valid in the eyes of law. In the case of I.K. Agencies P. Limited –vs.- CIT reported in 347 ITR 664(Cal.), ./2010 Assessment year: 2001-2002 & C.O. No. 10/KOL/2011 (in Assessment year: 2001-2002 Page 4 of 5 A.P., a Company, was amalgamated with the assessee-Company w.e.f. 01.04.1995 by virtue of the order of the Company Court and as a result, the assessee-Company had taken over all the assets and liabilities of A.P. On the relevant date of valuation for the assessment year, AP was the owner of certain assets, but no wealth-tax return was filed by it. The Assessing Officer, therefore, issued a notice under section 17 of the Act on 20.01.1997 to AP directing it to file its wealth-tax return for the relevant period when it was no more in existence. The reassessment made by the Assessing Officer in pursuance of the said notice was upheld by the ld. Commissioner (Appeals) as well as by the Tribunal, but the Hon’ble Calcutta High Court quashed the reassessment proceedings and allowed the appeal of the assessee-Company holding that the initiation of proceedings for the assessment itself was vitiated for giving notice to AP, which was not in existence at the relevant time and not giving notice to the assessee-Company.

Keeping in view the legal position emanating from the various judicial pronouncements discussed above and having regard to the relevant facts of the case, as narrated above, we hold that the present appeal filed by the Revenue in the name of M/s. Aravali Polymers Pvt. Limited as a respondent, which was not in existence on the date of filing of the said appeal, is not maintainable. We accordingly allow the Cross Objection filed by the assessee and dismiss the appeal filed by the Revenue at threshold being not maintainable.