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TMI Blog2014 (4) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... l, bad in law, time barred and without jurisdiction and further failed to appreciate that the assessment so framed is against the scheme of the Act and further the additions are not based upon any incriminating material found during search. 3. That the Ld. CIT(A) failed to appreciate that initiation of proceedings u/s. 153C, including issue of notice and consequent completion of assessment on the company which has already become non-existent on account of its merger with other company is illegal, bad in law and as such deserves to be quashed. 4. That the Ld. CIT(A) failed to appreciate that on the facts and circumstances of the case the AO has erred both on facts and in laws in using the statements of various persons against the assessee without providing opportunity to cross examination and considering retraction letter. 5. That the Ld. CIT(A) further erred in law and on facts in holding that the audited books and transactions through bank notwithstanding the books result required to be rejected when the entries are artificial, shame and not reflective of actual business / commercial transactions and further failed to appreciate various observations and findings of the Ld. AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing the income at Rs. 36,95,920/- against NIL income. The Ld. AO disallowed the purchases of Rs. 32,01,856/- by treating the purchases as unexplained/ unaccounted under section 69C of the I.T. Act. As per the assessee the assessee company made sale of textile goods of Rs. 36,70,914/- and credit the same to the profit and loss account as an income. The crux of argument on behalf of the assessee is that before framing the assessment, the assessee company had already amalgamated with M/s JP Hotels and Residences Pvt Ltd. Therefore, no assessment can be framed on an entity which is no more in existence. Whereas the sum and substance of the assertion made on behalf of the Revenue is that the assessee filed the return in the name of M/s Satwant Exports Pvt. Ltd. And even attended the proceedings without raising the objection. Therefore, the addition was rightly made. 5. We note that search and seizure operation u/s. 132 of the Act was carried out in the cases of Shri B.K. Dhingra, Smt. Poonam Dhingra, and Mrs. Madhusudan Buildcon Pvt Ltd. On 20.10.2008 wherein certain documents, belonging to the assessee, were seized. On the basis of documents found belonging to the assessee procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k up of cash / cheque purchases. In reply, the assessee declared the purchases of Rs. 13,12,500/- in cash and further claimed that the assessee did not maintain any bank account during the year. 6. Pursuance to notice issued u/s. 153C of the Act by the Department the assessee vide letter dated 17.9.2010 (Page 3 of the Paper Book) informed the department that "Satwant Exports Pvt. Ltd." i.e. the assessee has been amalgamated with JPL Hotels and Residences Pvt. Ltd. u/s. 391 & 394 of the Companies Act, 1956 vide order dated 3.9.2009 by the Hon'ble Delhi High Court, consequently, the notices are illegal and without jurisdiction. The assessee also informed that the notices, if any, can be issued to the amalgamated company having its registered office at D-7/7474, Vasant Kunj, New Delhi. The copy of the order dated 3.9.2009 passed by the Hon'ble Delhi High Court u/s. 394 of the Companies Act was annexed with the letter dated 17.9.2010. The scheme of amalgamation of Satwant Exports Pvt. Ltd. with JPL Hotels and Residences Pvt. Ltd. (Pages 9 to 17 of the Paper Book was also annexed with this letter). It is pertinent to mention that vide letter dated 5.5.2010 addressed to the ITO, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns u/s. 153C of the Act for asstt. Year 2003-04 to 2008-09 have been filed under protest to avoid prosecution and to make compliance to the notices (Pages. 39 & 40 of the PB). 8. However, before us the assessee has contended ground no. 5 of the appeal before this Tribunal by claiming that the same is covered in its favour by the decision of the Tribunal/Hon'ble High Court. We are accepted to peruse these orders also. In the case of ACIT vs. Micra India Pvt. Ltd. (ITA No. 1060 to 1065/Del/2012) identical issue has been deliberated upon by the Delhi Bench of the Tribunal vide order dated 21.9.2012.The relevant portion of the same is reproduced hereunder for ready reference. ".....We find from the orders of the authorities below that the AO in its report to the Ld. CIT(A), as mentioned in para no. 16 of the first appellate order, has admitted the fact that the assessee company was amalgamated with M/s Dynamic Buildmart P Ltd. during the assessment year 2009-10. In the assessment order passed u/s. 153C of the I.T. Act, 1961, name of the transferee company i.e. M/s Dynamic Buildmart P Ltd. was also mentioned. It also remained admitted fact that no notice u/s. 143(2)/142(1) of the I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become infructuous and they do not need adjudication." 9. If the observations made in the assessment order, first appellate order, conclusion drawn by the Tribunal in the aforesaid order dated 21.9.2012, material available on record and the assertions made by the Ld. Respective counsels are kept in juxtaposition and analysed. There is no dispute to the fact that the assessee company got amalgamated with M/s JPL Hotels & Residences Pvt. Ltd. (transferor company) before finalization of assessment. Now question arises, whether assessment can be framed on a dead person / non existent entity, the obvious reply is no. Because, notices were issued to the assessee company when it was no more in existence. Admittedly, the assesse filed the return under protest, therefore, the assessment so framed in the case of the assessee was a nullity. Identical is the situation in the cases relied upon by the assessee one of which we have reproduced hereinabove. So far as participation in the proceedings by the assessee which is the main thrust of argument by the Revenue is concerned, this issue has been already been deliberated upon by the Delhi Bench of the Tribunal (ITA 565 to 570/Del/2012) in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assessed on the predecessor, cannot be recovered from him, the [Assessing] Officer shall record a finding to that effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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