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2006 (4) TMI 514 - AT - Income TaxValidity Of assessment proceedings - Notice against non existent/ceased company - scheme of amalgamation being sanctioned - Applicability of sec 170 - whether after dissolution of a company and after the intimation of such dissolution with the ROC an assessment can be made on dissolved company or not - HELD THAT - In the case of Birla Cotton Spinning and Weaving Mills Ltd. vs. CIT 1979 (12) TMI 50 - DELHI HIGH COURT was dealing with a case where proceedings were initiated and orders of assessments made on Amalgamating Companies which cease to exist. An order of assessment was made on companies which ceased to exist after the date of dissolution of Amalgamating Company without the process of winding up. Thus it is clear that the assessment made in the present case in the name of HP India after the date of its dissolution is not valid. The fact that this company filed a return of income is not of any consequence. The order of assessment was made on 25.2.2005. As on this date HP India as an entity did not exist. The assessment is therefore held to be invalid and is cancelled. In a case of amalgamation where one entity takes over the business of two other entities the same would be a case of succession to business otherwise on death and therefore the provisions of Sec. 170 of the Act would apply. We therefore hold that the assessment in the name of H.P.India is null and void and the assessment is therefore held to be invalid and is cancelled. In view of the decision on this preliminary issue the other issues raised by the assessee are not taken up for consideration.
Issues Involved:
1. Validity of assessment against a dissolved company. 2. Applicability of Section 292B of the Income Tax Act. 3. Jurisdiction of the Assessing Officer. 4. Succession of business and applicability of Section 170 of the Income Tax Act. Detailed Analysis: 1. Validity of Assessment Against a Dissolved Company: The primary issue was whether an assessment could be made against a company that had been dissolved. The appellant argued that the assessment was invalid as the company was no longer in existence from the appointed date of 01.04.2003. The Tribunal referred to various legal precedents, including the case of Marshall Sons and Co. Ltd. vs. ITO, where it was held that an assessment on a non-existent entity is invalid. The Tribunal concluded that since H.P. India ceased to exist from 01.04.2003, any assessment made after this date was invalid. The order of assessment made on 25.02.2005 was therefore held to be invalid and was cancelled. 2. Applicability of Section 292B of the Income Tax Act: The Commissioner of Income Tax (Appeals) had relied on Section 292B to uphold the validity of the assessment, arguing that it was a non-substantive lapse. However, the Tribunal found that Section 292B, which covers non-substantive lapses, could not apply in this case because the fundamental issue was the non-existence of the entity being assessed. The Tribunal emphasized that the existence of the assessee is essential for a valid assessment, and an assessment on a non-existent entity cannot be considered a mere procedural lapse. 3. Jurisdiction of the Assessing Officer: The appellant contended that the assessment by the Assessing Officer in New Delhi was invalid as the successor company was assessed in Bangalore. The Tribunal did not delve deeply into this issue because the primary issue of the company's non-existence rendered the assessment invalid. However, it was noted that the framing of two assessments for the same year by different jurisdictions was unwarranted under the Act. 4. Succession of Business and Applicability of Section 170 of the Income Tax Act: The Tribunal discussed the applicability of Section 170, which deals with the succession to business otherwise than on death. It was noted that in cases of amalgamation, the successor company should be assessed for the income of the predecessor company. However, the Tribunal pointed out that there was no provision in the Act to assess the income of a dissolved company in the hands of the successor company unless specific proceedings were initiated against the right entity. The Tribunal concluded that the assessment against H.P. India was invalid and emphasized that the revenue should initiate appropriate proceedings against the correct entity in accordance with the law. Conclusion: The Tribunal held that the assessment made against H.P. India was null and void due to the company's dissolution. Consequently, the assessment was invalid and cancelled. The other issues raised by the assessee were not considered, as the decision on the preliminary issue of the company's non-existence was sufficient to resolve the appeal.
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