9911796707
TMI Blog2006 (3) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... non-entity is null and void." 3. There was a company by name M/s Calcutta Instalments (P) Ltd. This company was in the business of leasing and investments. There was a scheme of amalgamation by which M/s Calcutta Instalments (P) Ltd. and several other companies sought to amalgamate with a company by name Modifin (P) Ltd. Since the registered office of the aforesaid transferor-companies, viz., Calcutta Instalments (P) Ltd., M/s Delhi Holdings (P) Ltd., M/s Dunes Investments (P) Ltd., and M/s Helm Holdings (P) Ltd. were within the jurisdiction of the Hon'ble Allahabad High Court, a petition was made to the Hon'ble High Court of judicature at Allahabad in C.P. No. 28 of 1996 praying for sanction of the scheme for amalgamation referred to above. The Hon'ble High Court by its order dt. 11th Oct., 1996 sanctioned the scheme of amalgamation. The operative portion of the order of the Hon'ble High Court reads as follows: "(1) That all the property, rights and powers of the transferor-companies specified in the first, second and third parts of the Schedule hereto and all other property, rights and powers of the transferor-companies be transferred without any further act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dec., 1996. As already mentioned, the Allahabad High Court has already sanctioned the scheme of amalgamation in the case of other four transferor-companies i.e., Delhi Holdings (P) Ltd., Helm Holdings (P) Ltd., Dunes Investments (P) Ltd. and Calcutta Instalments (P) Ltd. which were subject to its jurisdiction vide order dt. 11th Oct., 1996. 5. A certified copy of Court order was filed with the RoC, NCT, Delhi and Haryana on 27th Dec., 1996. Form No. 21 filed in this regard together with acknowledgement by the RoC is placed at page No. 20 of the assessee's paper book. Similarly a certified copy of the order of the Allahabad High Court was filed with the RoC, Kanpur on 5th Nov., 1996. Thus, w.e.f. 16th May, 1996 M/s Calcutta Instalments (P) Ltd. stood dissolved without the process of winding up. M/s Modifin (P) Ltd. has since amalgamated with M/s Modi Corp. Ltd. and the name of M/s Modi Corp. Ltd. is found as the appellant in some of these appeals. 6. For the asst. yr. 1996-97 return of income was filed by M/s Calcutta Instalments (P) Ltd. on 30th Nov., 1996 declaring an income of Rs. 3,75,900. A letter dt. 9th Nov., 1998 was addressed by Modifin (P) Ltd. to the AO informing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 granted certain reliefs to the assessee and confirmed some of the additions made by the AO. Against the reliefs granted by the CIT(A), the Revenue has preferred ITA No. 4724/Del/2002. The assessee has filed a cross-objection, i.e., C.O. 43/Del/2005 in which he has agitated the non-adjudication of a ground of appeal by the CIT(A) besides rising a ground on the validity of the order of assessment passed in a company which has already been dissolved. 10. Reverting to the first ground of appeal of' the assessee in ITA No. 211/Del/2001, i.e., the issue with regard to the order of assessment having been passed on a company which already. stood dissolved, the submissions of the learned counsel for the assessee was that such an order is non est in law. It was submitted by the learned counsel for the assessee that the factum of dissolution of Calcutta Instalments (P) Ltd. without the process of winding up was duly intimated to the AO by successor viz. M/s Modifin (P) Ltd. and despite the same the AO has proceeded to frame the assessment in the name of M/s Calcutta Instalments (P) Ltd. He pointed out that under the IT Act, 1961 an assessment can be made only against a personas defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration in several decisions. In the case of CIT VS. Express Newspapers Ltd. the facts were as follows. Free Press of India (Madras) Ltd., a private limited company (hereinafter referred to as the Free Press Company) was carrying on business as printers and publishers of certain newspapers, namely, the Indian Express, Dinamani and Andhra Prabha at Madras, and Eastern Express and Bharat at Calcutta. During the course of the year 1946, the company also acquired rights in respect of Sunday Standard and Morning Standard at Bombay. On 22nd April, 1946, another private limited company named the Express Newspapers Ltd. (to be referred to hereafter as the Express Company) was formed. The object of the new company was to acquire and take over the newspapers, the Indian Express, Dinamani and Andhra Prabha at Madras, and Eastern Express and Bharat at Calcutta and all or any of the assets and liabilities of the Free Press of India Ltd. Madras. Express Company took possession of the machinery, assets and liabilities of the Free Press Company, and started publishing the newspapers from 1st Sept., 1946. The staff and management continued as before. Mr. Ramnath Goenka was the managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de an assessment of the taxable income at Rs. 6,44,802. The question before the Court was whether notice of reassessment against M/s Express Company was valid, which question would again depend on the question whether the assessment on M/s Free Press Company after it was dissolved was valid. The Court held as follows: To answer that question it is first necessary to consider whether the assessment on the basis of the return was valid. The learned counsel for the assessee urged that the assessment could not be held to be invalid for the mere reason that the Free Press Company was not in existence on the date of assessment, and that the rules of abatement of suits under the CPC would not apply to assessment proceedings under the IT Act, as the ITO was not a Court; and that, even if it were to be held that the rules as to abatement would apply to such proceedings, the enquiry in this case having been concluded on 3rd April, 1948, the company then being in existence, the assessment would be valid on the principle recognized in order 22, r. 6, of the CPC. We agree that the rules as to abatement laid down by the CPC will not apply to the proceedings before the ITO. But the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable by the other company, i.e., M/s Rajputana General Dealers Ltd., at Rs. 31,465 In both the orders, the names of the assessee were given as M/s Merchandise and Stores Ltd., and M/s Rajputana General Dealers Ltd., respectively. One of the questions for consideration before the Court was as to whether Delhi High Court was competent to hear the reference. The two Hon'ble Judges held that Delhi High Court had no territorial jurisdiction to hear the reference. One of the Hon'ble Judges expressed the following opinion. "Therefore, the position would be that the orders passed under s. 23A(1) by the ITO purportedly against these companies were invalid orders of assessment. However, the validity of the orders would have no effect on these companies since they did not exist at the time of the orders. In a case, Where an assessee exists and the order of assessment is null and void for some reason, the assessee would be aggrieved and would and should file an appeal to get rid of the invalid order. But where the assessee is non-existent and consequently can have no grievance against the assessment order there is no question of its preferring any appeals against the said order. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f death of different assessees. In the case of a company which is in liquidation, the provisions of s. 178 of the Act providing for assessment in the hands of a liquidator, was referred to. The Tribunal then referred to the distinction in law between liquidation and winding up and ultimately concluded that there was no provision under the IT Act to assess a company which is dissolved and that there was a lacuna in the Act in this regard. The Tribunal ultimately held that the order of assessment passed on the assessee-company was a nullity. 14. In view of the legal position as laid down in the aforesaid decisions, it is clear that the assessment made in the present case in the name of M/s Calcutta Instalments Company (P) Ltd. after the date of its dissolution was not valid. The fact that this company filed a return of income is not of any consequence. The assessment is, therefore, held to be invalid and is cancelled. 15. In view of our finding that the assessment is null and void, all the other issues raised in the assessee's appeal as well as its cross-objection and the grounds raised by Revenue in both its appeals do not call for any adjudication. They are, therefore, dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
