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TMI Blog2019 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) was justified in holding the assessment order passed to be bad-in-law on the reasoning that it was passed against a company not in existence? 3. Brief facts are, the assessee company was engaged in the business of real estate developer. For the assessment year under dispute, the assessee had filed its return of income on 28th September 2012, declaring total income of ` 5,73,16,071. During the pendency of the assessment proceedings for the impugned assessment year, the assessee amalgamated / merged with UTV Software Communications Ltd. w.e.f. 1st April 2013, by virtue of order dated 11th April 2014, passed by the Hon'ble Jurisdictional High Court in Company Petition no.788 of 2013 and Ors., approving the scheme of amalgamati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment in the name of the assessee. He submitted, if at all, there is any mistake committed by the Assessing Officer in not mentioning the name of the successor company in the assessment order, it is merely a technical error which can be ignored / rectified under section 292B of the Act. He submitted, since, there is no prejudice caused to the assessee by the reason of non-mentioning of the successor company's name in the assessment order, learned Commissioner (Appeals) was not justified in declaring the assessment order to be invalid. In support of this contention, the learned Departmental Representative relied upon the decision of the Hon'ble Delhi High Court in Skylight Hospitality LLP v/s ACIT, judgment dated 2nd February 2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, UTV Software Communications Ltd. also brought the facts relating to the amalgamation of the assessee to the notice of the Assessing Officer along with documentary evidences. Thus, he submitted, the Assessing Officer was very much aware of the facts relating to amalgamation of the assessee with UTV Software Communications Ltd. However, in spite of that the Assessing Officer proceeded to pass the impugned assessment order on 3rd March 2015, in the name of the assessee. He submitted, the assessee has also complied to all the conditions imposed by the Hon'ble Jurisdictional High Court by intimating the Registrar of Companies (ROC) in the prescribed manner. In this context, he drew our attention to the Form no.INC-28 filed before the ROC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival submissions and perused material on record. Uncontroverted facts, as set-out in the impugned order of the learned Commissioner (Appeals) and also emanating from record reveals that the assessee filed a petition before the Hon'ble Jurisdictional High Court for its amalgamation with UTV Software Communications Ltd. The Hon'ble Jurisdictional High Court, vide order dated 11th April 2014, approved the scheme of amalgamation and the assessee stood amalgamated with UTV Software Communications Ltd. from the appointed day of 1st April 2013. It is evident, all relevant facts relating to the amalgamation of the assessee with UTV Software Communications Ltd. was brought to the notice of the Assessing Officer in the course of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the assessee intimated all relevant facts relating to its amalgamation with UTV Software Communications Ltd. to the Assessing Officer in the course of assessment proceedings for the impugned assessment year, but also furnished all necessary evidences in support of its claim. Thus, by the time the Assessing Officer passed the impugned assessment order, the assessee company has ceased to exist in the eyes of law. Therefore, it is apparent, the Assessing Officer has passed the impugned assessment order against a non-existent company. Therefore, the issue which requires to be examined is, whether the assessment order passed in the name of a non-existent company is valid? Legal position in this regard is fairly well settled. The Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munications Ltd. That being the case, neither the aforesaid decision of the Hon'ble Delhi High court nor the provisions contained under section 292B of the Act would come to the rescue of the Department. In fact, different Benches of the Tribunal have expressed the aforesaid view after distinguishing the factual position in case of Skylight Hospitality LLP (supra). In this context, we may refer to the following decisions:- i) Shri Ishwarbhai Maganbhai Desai v/s ITO, ITA no.90/Ahd./2017, dated 23.04.2018; ii) Akzo Nobel India Ltd. v/s DCIT, IT no.387/Pun./2016, dated 05.06.2018; and iii) Ganpat Infrastructure (Kolkata) Pvt. Ltd. v/s DCIT, IT no.198/Del./2015, dated 27.04.2018. 9. Therefore, considering the factual matrix relating to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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