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TMI Blog2018 (5) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... date and further no consequential assessment can be made under section 143(3) of the Act. No infirmity with the findings of the CIT(A) and the order of the ld. CIT(A) declaring the action taken by the Department under section 147/148/143(3) of the Act as void ab-initio, is sustained. - Decided against revenue - ITA No.584/LKW/2016 - - - Dated:- 9-1-2018 - Shri. T.S. Kapoor, Accountant Member And Shri Partha Sarathi Chaudhury, Judicial Member For the Appellant : Shri J. S. Minhas, CIT (DR) For the Respondent : Shri Rakesh Garg, Advocate ORDER PER PARTHA SARATHI CHAUDHURY, J.M: This appeal preferred by the Revenue emanates from the order of the ld. CIT(A) IV, Kanpur dated 5/7/2016. 2. The sole grievance of the Revenue is that whether the proceedings initiated under section 147/148 of the Act on 31/3/2015 and the assessment order passed in the case of the assessee-company, which did not exist on account of its merger with another company, were without jurisdiction. 3. The brief facts appearing in the case of the assessee are that a search and seizure operation under section 132 of the Act was conducted in Kamal Chandak group of cases on 24/10/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to serve a Notice under section 153A of the Income Tax Act, 1961, addressed to M/s. Chandak Housing Pvt. Ltd., 603, City Centre, The Mall Kanpur, through Shri Kama! Kishore Chandak. He vide his written report dated informed the A.O. (i.e. the ACIT, C.C.-ll, Kanpur) that M/s. Chandak Housing Pvt. Ltd. together with other two group companies got amalgamated with M/s. Chandak Builders Developers Pvt. Ltd. with effect from 01.04.2012. The Income Tax Inspector also attached copy of a letter signed by Shri Kama! Kishore Chandak, erstwhile director of 3 group companies including M/s. Chandak Housing Pvt. Ltd. [PAN AAACE4306J] dated 03.12.2012, (copy of letter attached marked Annexure 2) wherein it was informed to the Income Tax. Officer, Ward-6(2), Range- 6, Kanpur that M/s. Chandak Housing Pvt. Ltd. got amalgamated with M/s. Chandak Builders Developers Pvt. Ltd. with effect from 01.04.2012 as per the order of the Hon'ble Allahabad High Court dated 06.11.2012 received on 01.12.2012. In the said letter it was categorically mentioned that M/s. Chandak Housing Pvt. Ltd. (and other two companies) ceased to exist with effect from 01.04.2012 and it was also requested to cancel th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaking the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amounts to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity... In holding the above proposition the Court referred to its earlier judgment in General Radio and Appliances Co. Lid. Vs. M.A. Khader (1986) 60 Comp Case 1013. The effect of the dissolution is that the company no more survives. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandak Builders Developers Pvt. Ltd. w.e.f. 1/4/2012 by virtue of the Hon'ble Allahabad High Court order dated 6/11/2012. Once the company is amalgamated with another company, it loses its existence from the effective date. On this issue, the Hon'ble Apex Court in the case of Saraswati Industrial Syndicate Ltd. vs. CIT, 186 ITR 278 has held as under:- ...The question is whether on the amalgamation of the Indian Sugar Company with the appellant Company, the Indian Sugar Company continued to have its entity and was alive for the purposes of Section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under Section 391 read with Section 394 of the Companies Act. The Saraswati Industrial Syndicate, the transferee company was a subsidiary of the Indian Sugar Company, namely, the transferor Company. Under the scheme of amalgamation the Indian Sugar Company stood dissolved on 29th October, 1962 and it ceased to be in existence thereafter. Though the scheme provided that the transferee Company the Saraswati Industrial Syndicate Ltd. undertook to meet any liability of the Indian Sugar Company which that Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal before us. The ld. D.R. vehemently supported the order of the Assessing Officer. 9. The ld. A.R. of the assessee relied upon the order of the ld. CIT(A) as well as placed reliance upon the following cases:- (1) Jitendra Chandralal Navlani Ans. Vs Union of India WP- 1069 of 2016/Bombay, Order dated 08.06.2016. (2) Saraswati Industrial Syndicte vs CIT, Haryana, Himachal Pradesh, Delhi, Civil Appeal No.91 of 1976/SC Order dated 04.09.1990. (3) ACIT vs. Dimension Apparels Pvt. Ltd. - ITA No.571 to 576/Del/2012 Order dated 21.06.2013. (4) CIT vs. Dimension Apparels Pvt. Ltd. ITA No.327 to 330 and 332/2014, Delhi High Court Order dated 08.07.2014. (5) Maruti Suzuki Indis Ltd. vs. Dy. CITITA No.288/Del/2016, ITAT Delhi order dated 21/7/2016. 10. The ld. A.R. of the assessee, relying upon the aforesaid case laws, submitted that amalgamating company ceases to exist in the eyes of law once amalgamation is made effective. When two companies amalgamated and merged into one, the transferee company loses its entity and it ceases to have its business. Their respective rights and liabilities are determined under the scheme of amalgamation but the corporate entity of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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