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TMI Blog2014 (12) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... - notice u/s 143(2) was sent to the company which was not in existence on the date of issue of the notice - The amalgamated company appeared and brought this fact to the knowledge of the AO – the AO did not substitute the name of the amalgamating company - AO issued notice us/ 153C in the name of M/s P.D. Associates Pvt. Ltd. which was not in existence on that day after its amalgamation with M/s A.R. Infracon Pvt. Ltd. - no contrary decision is brought to our knowledge - the issue of notice u/s 153C in the name of M/s P.D. Associates Pvt. Ltd. which was not in existence at the relevant time was void ab-initio and nullity - Since the notice issued u/s 153C is held to be void ab-initio and nullity, the assessment order completed in pursuance to such notice cannot be sustained – Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Satwant Exports Pvt.Ltd. Vs. ACIT in ITA No.5340 to 5345/Del/2013. (iii) Judgment dated 3rd August, 2011 passed by Hon'ble Delhi High Court in the case of Spice Entertainment Ltd. in ITA No.475 & 476/2011. 5. Learned DR, on the other hand, relied upon the orders of authorities below and he stated that the assessee filed the return and also participated in the assessment proceedings. Moreover, in the assessment order, the Assessing Officer has mentioned M/s P.D. Associates Pvt.Ltd. (since merged with M/s A.R. Infracon (P) Ltd.). Thus, the name of the successor company is duly mentioned in the cause title and therefore, these assessments would be held to be valid assessment if not in the hands of M/s P.D. Associates Pvt.Ltd. than as assessment in the hands of M/s A.R. Infracon (P) Ltd. 6. We have heard the arguments of both the sides and perused relevant material placed before us. Admittedly, the assessment has been completed under Section 143(3)/153C in pursuance to the notice issued under Section 153C. First of all, we will have to see whether the notice under Section 153C is a valid notice. The copy of the notice issued under Section 153C is at page 13 of the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the amalgamation of PDA with ARI, enclosed the copy of amalgamation order passed by the Hon'ble High Court of Delhi and also requested for issue of notice in the name of the successor company. However, despite the above information as well as request, the Assessing Officer did not issue any notice in the name of M/s A.R. Infracon Pvt.Ltd. and completed the assessment in the name of the assessee, of course, after mentioning the factum of merger with A.R. Infracon Pvt.Ltd. The cause title of the assessment order reads as under:- 1. Name & address of the assessee M/s P.D. Associates Pvt.Ltd. 192-C, J & K Pocket, Dilshad Garden, Delhi. (Since merged with M/s A.R. Infracon (P) Ltd. w.e.f. 01.10.2008) 9. Now, the question before us is whether the issue of notice under Section 153C in the name of M/s P.D. Associates Pvt.Ltd. is a valid notice. That Hon'ble Delhi High Court passed the order on 25th May, 2009 approving the amalgamation of PDA with ARI. The relevant portion of the order of Hon'ble High Court reads as under:- "In the High Court of Delhi at New Delhi (Original Jurisdiction) In the matter of the Companies Act, 1956 And In the matter of Scheme of Amalgamation Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and Shareholders of these Companies could take a decision for transfer of the assets & liabilities of the Transferor Company to the Transferee Company without knowing the details thereof. In response thereto, learned Counsel for the petitioners referred to Para 4 of the affidavit filed by the Regional Director wherein it was mentioned that this matter has already been taken up with the Regional Director by the Petitioner Companies. Learned Counsel for the Petitioner further submitted that the present Amalgamation is of the holding company with its wholly owned subsidiary company and that the appointed date is merely a cut-off date fixed for the purpose of giving effect to the Scheme of Amalgamation in the books of account of the transferee company and all the Equity Shareholders and Creditors of the Transferor and Transferee Companies had given their written approval to the Scheme. It was further submitted that every scheme of the amalgamation, if approved by the Hon'ble High Court, becomes effective only when the copy of High Court order is filed with the concerned Registrar of Companies and the appointed date can be fixed retrospectively or prospectively. However, the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferor company are to be transferred to the transferee company i.e. ARI. That Hon'ble Delhi High Court has considered the validity of the assessment in the hands of the amalgamating company after the amalgamation in the case of Spice Entertainment Ltd. vide ITA No.475 & 476 of 2011 and held as under:- "11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said 'dead person'. When notice under Section 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that date. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppels against law." 11. That the ratio of the above decision would be squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned CIT(A) have been challenged. However, while deciding the assessee's appeals for these years, we have already quashed the assessment order. Once the assessment order has been quashed, these appeals by the Revenue do not survive. They are accordingly dismissed. ITA No.2551/Del/2014 - Assessee's appeal for AY 2009-10 :- 15. Ground No.3 of the assessee's appeal reads as under:- "That on the facts and circumstances of the case and the provisions of law, the ld.CIT Appeals has failed to appreciate that the issue of notice u/s 143(2) and also completion of assessment on the appellant company which has already become non existent on account of its amalgamation with another company is illegal and bad in law and as such the assessment being bad in law deserves to be quashed. The ld. CIT Appeals has failed to appreciate that no proceedings could be conducted in the name of such company which already ceases to exist and hence, no assessment could be made in the name of such company." 16. We have heard the arguments of both the sides and perused relevant material placed before us. At page 1 of the assessee's paper book, there is notice under Section 143(2) dated 23rd Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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