9911796707
TMI Blog2018 (2) TMI 1936X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment proceedings as well as subsequently vide letter dated 10/12/2015. In this respect, Jurisdictional High Court in case of Jitendra Chandaralal Navlani [ 2016 (9) TMI 60 - BOMBAY HIGH COURT] held that there cannot be any re-assessment proceedings on non-existing company. - Decided in favour of assessee - ITA No. 6633/Mum/2017 - - - Dated:- 26-2-2018 - SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM For the Appellant : Shi Rakesh Joshi For the Respondent : Shri Manjunatha Swamy ORDER PER R.C. SHARMA (A.M): This is an appeal filed by assessee against the order of PR. CIT-2, Mumbai, dated 18/09/2017 for A.Y.2007-08 in the matter of order passed by CIT u/s.263 of the Income Tax Act, 1961. 2. The following grounds have been taken by assessee:- 1) On the fact and circumstances of the case as well as in Law, the Learned Principal CIT has erred in passing Revision Order u/s.263 of the Income Tax Act, 1961 for the assessment order u/s.143(3) r.w.s 147 of the Act, without considering the facts and circumstances of the case. 2) On the fact and circumstances of the case as well as in Law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on page 2 of paper book. Since the company was not in existence on the date of order passed U/s 143(3) r.w.s. 147 of the Act, hence the said order itself is null and void as there cannot be any assessment on non-existing entity. Therefore an order, which was a nullity in the eyes of law had no existence in the eyes of law and, therefore, the same could not have been revised by the Ld. PCIT u/s.263, thereby giving fresh life to the proceedings which had no legal existence in the eyes of law. In this regard reliance is placed on the judgment of Hon'ble Delhi High in CIT vs Escorts Farms Pvt Ltd 180 ITR 80 (Del) and upon the decision of the co-ordinate bench in the case of Krishna Kumar Saraf vs CIT ITA No.4562/Del/2Ol1 dated 24-09-2015, Steel Strips Ltd v ACIT 53 ITD 553 (Chd) and Westlife Development Ltd Vs. PCIT (ITA NO. 688/Mum/20i6) vide order dated 10/06/2016. In this case Mumbai ITAT held as under:- 11. Thus, after taking into account all the facts and circumstances of the case, n this case, the original assessment order passed u/s 143(3) dt 24-10-2013 was null void in the eyes of law as the same was passed upon a non-existing entity and, therefore, the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pursue record and record would include the communication made by the assessee to the AO on 23.7.2013 intimating about the fact of amalgamation. Therefore, we are of the view that the issue in dispute is squarely covered in favour of the assessee by the decision of Hon'ble Gujarat High Court in the case of Khurana Engineering Ltd. (supra). Since we have arrived at a conclusion that initiation of proceedings against HEPL is void ab inito, therefore, we do not deem it necessary to adjudicate on other issues on merit. No proceedings under section 263 can be taken up against HEPL after its amalgamation with Milestone Tradelinks Pvt. Ltd. Therefore, we allow the appeal of the assessee and quash the order passed by the Id. Commissioner under section 263 of the Income Tax Act.] 11. Reliance was also placed by learned AR on the following judicial pronouncements. Case Title / No. Held CIT Vs. Dimension Apparel Pvt. Ltd (89 CCH0344) (High Court of Delhi) Assessment made on non-existing company is not maintainable. [Para 16] In reply to the argument of revenue that the AO has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject Rainbow Oxygen P Ltd (ITA No. 48/Del/2015 (ITAT New Delhi) The AO passed order on non-existing company therefore considering various decisions such assessment is not sustainable. Pampasar Distillery Ltd Vs ACIT 15 SOT 331 (ITAT Kolkata) The question is whether the income prior to the date of amalgamation can be assessed in the hands of amalgamating company on the date when amalgamating company does not remain in existence or it is to be assessed in the hands of amalgamated company as a representative of amalgamating company. The provision of s. 170 would be squarely applicable in respect of the case of amalgamation. By the process of amalgamation the business which was being I carried on by the amalgamating company is succeeded by the amalgamated company who continues to carry on the said business. However, after the amalgamation once the amalgamating company is dissolved it does not remain in existence and, therefore, it cannot be found. Once it cannot be found the income up to the date of amalgamation should be assessed in the hands of amalgamated company i.e. the success ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
