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TMI Blog2013 (6) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... brief facts of the case are that search and seizure action u/s 132 of the Income Tax Act, 1961 was carried out on Shri BK Dhinga, Smt. Poonam Dhinga & M/s Madhusudan Buildcon Pvt. Ltd. on 20.10.2008. During the course of search at their residential premises at F-6/5, Vasant Vihar, New Delhi certain documents belonging to the assessee were seized. On the basis of those documents so found belonging to the assessee company proceedings were initiated in the case of assessee u/s 153C read with section 153A of the Act. In response to notice u/s 153C read with section 153A, the assessee filed returns for the assessment years 2003-04 to 2008-09. The assessment in these years was completed by the Assessing Officer by making additions for purchases made in cash and some other misc. disallowance were also made. The Ld CIT(A) on the basis of various submissions deleted the additions made by the Assessing Officer on merits and also held that the company was not in existence at the time of assessment as it had already amalgamated with another company and therefore, vide paras 19 & 20 at pages 28 to 31 of his order adjudicated on ground No.4 raised by the assessee as under:- "I have gone throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spice Entertainment Ltd. Vs CIT ITA 475 and 476 of 2011. The gist of the judgment of the jurisdictional Delhi High Court's order in the case of ITA No.273/2009 COMMISSIONER OF INCOME TAX vs VIVED MARKETING SERVICING Pvt. Ltd. is reproduced hereunder:- "When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies u/s 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessmsent order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. vs. ITO 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arise." The gist of the jurisdictional Delhi Tribunal's order in the case of IMPSAT (Pvt.) Ltd. vs ITO ITAT, Delhi 'A' Bench (2005) 92 TTJ (Del) 552 is reproduced hereunder:- Held Assessment - Validity- Assessmsent on dissolved company- Assessment on a company which has been disso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 552: (2004) 91 ITD 354 (Del) b) Commissioner of Income Tax vs. Vived Marketing Servicing Pvt. Ltd. ITA No. 273/2009 and c) Spice Entertainment Ltd. vs CIT ITA 475 & 476 of 2011, by the Hon'ble Delhi Court are applicable to the present facts of the case. The appellant company stood dissolved on 07.12.2009 on amalgamation with M/s B. S. Infratech Pvt. Ltd., In view of the above, I accept the contention of the appellant company and hold that the assessment order passed on the appellant company is a nullity. Therefore, this ground of appeal is decided in favour of the appellant." Aggrieved the revenue is in appeal before us in respect of all years and Assessee has filed cross objections to these appeals. At the outset, the Ld DR submitted that Ld CIT(A) had wrongly relied upon the case law of Micra India Pvt. Ltd. as in that case this ground was never taken. It was further argued that in response to notice u/s 153C read with section 153A the assessee had filed returns in its own name and had also participated in the proceedings and therefore the stand taken by the assessee before the ld CIT(A) that the company was not in existence was not justified. She further submitted that the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est which was noted on the acknowledgement itself wherein it was contested that the notices were bad and illegal and without jurisdiction. Regarding argument of Ld DR that assessee has been changing its status frequently, the Ld AR submitted that these observations have no bearing on the finding of the impugned order. The ld AR further relied upon the case law and on merits also but his basic argument remained that the assessment order was null and void ab inito as the company was non existent. We have heard the rival submissions of both the parties and have gone through the material available on record. We observe that notice u/s 153C was issued on 31.12.2010 for assessment year 2003- 04 as is apparent from paper book page 1 filed by the assessee. The assessee in reply to letter dated 01.11.2010 of ACIT -Central, Circle-21, New Delhi, at page 68 of paper book had submitted as under: "The Assessee company would like to submit it has already been amalgamated with M/s BS Infratech Pvt. Ltd. vide Delhi High Court dated 07.12.2009 passed u/s391(2) and 394 of companies Act 1956, copy of the same has been enclosed while filing reply to Assessing year 003-04." The Assessing Officer in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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