2022 (11) TMI 732 - AT - Income Tax

Reopening of assessment u/s 147 - notice u/s 148 issued on non-existent entity as the assessee was dissolved - HELD THAT - On the detailed written submissions of assessee, CIT(A) called remand report from AO. On the remand report, the assessee was asked to give its comments. The assessee filed his reply to the said remand report. CIT(A) after considering the assessment order, submission of assessee, remand report filed by AO and rejoinder of assessee held that reopening of case is bad in law on two issues. Firstly, the name of assessee was struck off from the Registrar of Company on 06.07.2011. And an intimation was sent to assessing officer vide letter dated 03.01.2013, informing the cancellation of PAN. CIT(A) specifically noted that vide order of Ministry of Corporate Affairs, Government of India dated 06.07.2011 informed the dissolution of assessee-company and that such letter was forwarded to Chief Commissioner of Income-tax, Surat and Income-tax Officer. On such observation CIT(A) held that notice u/s 148 issued on non-existing entity and quashed the assessment order. CIT(A) also held that in the remand report dated 29.12.2017 AO confirmed the reopening was on account of audit objection and such fact corroborated the assessee s submission that reopening was mere change of opinion which is not permissible under law. We find that second finding of CIT(A) is not challenged by Revenue while raising its grounds of appeal. The Ld. Sr-DR for the Revenue while making his submission, though raised the plea that appeal of assessee was filed after gap of three years from the date of assessment order and that CIT(A) allowed the condonation of delay in filing appeal before CIT(A). it was also argued that he may be allowed to made his submissions against the finding of ld CIT(A), which is against revenue. We find that no such ground was raised by AO while filing appeal before Tribunal, in our view, the revenue in now precluded to raise such submission, on such pleas which has been accepted by assessing officer. Thus, the submission of Ld. Sr-DR for the Revenue has no substance. We find that the AO passed the re-assessment order against the non-existent entity. Thus, the assessment order is void-ab initio and the same is setaside. Hence, we affirm the order of ld CIT(A). In the result, ground No. 1 of the appeal is dismissed.

Summary

Issues Involved:
1. Validity of reopening assessment under section 147.
2. Addition of Rs.1.86 crores as unaccounted income.
3. Disallowance of depreciation claimed on building amounting to Rs.2,61,180/-.

Detailed Analysis:

1. Validity of Reopening Assessment under Section 147:
The Revenue appealed against the order of the Commissioner of Income-tax (Appeals) [CIT(A)], which quashed the reopened assessment proceedings for AY 2008-09. The CIT(A) found that the reopening was based on a change of opinion and was initiated against a non-existent entity. The assessee-company was dissolved by the Ministry of Corporate Affairs on 06.07.2011, and this dissolution was communicated to the Assessing Officer (AO). The notice under section 148 was issued on 19.10.2012, after the company had ceased to exist, rendering the notice void ab initio. Additionally, the reopening was based on audit objections without any new material or information, which is not permissible under law. The Tribunal upheld the CIT(A)'s decision, affirming that the reassessment order was void ab initio.

2. Addition of Rs.1.86 Crores as Unaccounted Income:
The AO added Rs.1.86 crores to the assessee's income, alleging it was not accounted for in the return. The assessee contended that this amount was a deferred consideration contingent on achieving certain profit targets, which were not met, and thus the amount was never received. The CIT(A) accepted the assessee's explanation and deleted the addition. The Tribunal noted that since the reassessment was invalid, the adjudication of this ground became academic.

3. Disallowance of Depreciation Claimed on Building Amounting to Rs.2,61,180/-:
The AO disallowed the depreciation claimed on the building, arguing that the asset was sold and not used for business purposes in the relevant year. The assessee argued that the building was a depreciable business asset and was given on rent pending sale. The CIT(A) deleted the disallowance, and the Tribunal, affirming the invalidity of the reassessment, found this issue academic as well.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s order that the reassessment was invalid due to being initiated against a non-existent entity and based on a change of opinion. Consequently, the issues of unaccounted income and disallowed depreciation were rendered academic.