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TMI Blog2019 (10) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... d. w.e.f.28.02.2010. Hence, we affirms the order of ld Commissioner (Appeals). - Decided against revenue - ITA No. 4395/Mum/2016 (Assessment Year 2008-09) - - - Dated:- 18-9-2019 - SHRI G.S. PANNU, VICE-PRESIDENT AND SHRI PAWAN SINGH JUDICIAL MEMBER Appellant by: Ms. Pooja Swaroop with Shri M.K. Singh (DR) Respondent by: Ms. Krupa Gandhi with Vidhi Doshi (AR) ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. The appeal by revenue is directed against the order ld. Commissioner of Income-Tax (Appeals)-8, Mumbai [for short the ld. CIT(A)] dated 28th March 2016 for Assessment Year 2008-09. The revenue has raised the following grounds of appeal: 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that reopening of assessment was not valid without appreciating that the assessee was served with the notice had filed its return and had participated in the assessment proceedings without challenging the validity of notice. 2. Whether on the facts and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee filed its reply to the notice under section 148, vide its reply dated 10th February 2014. In the reply the assessee stated that the assessment was completed under section 143(3) on 27th of December 2010. Subsequently, the assessing officer vide order under section 154 rectified the assessed income to adjust brought forward losses and unabsorbed depreciation, thereby computing the revised taxable income. The assessee further inform the assessing officer that vide letter dated 7th June 2011, it was intimated that jurisdiction of their case has been transferred from New Delhi to Mumbai with DCIT, Circle 3(2), Mumbai owing to the merger with Idea Cellular Ltd, by order under section 127 passed by learned Commissioner of Income tax Delhi-III, New Delhi vide F.No. CIT-III/Del/Centralisation /2010-11/3589 dated 28.03.2011 4. The assessee further stated that return of income filed on 31st March 2009 may be treated as written in response to the notice under section 148. The assessee also further stated that they have disclosed all relevant transaction of sale and lease back allowability, made not only in Audited financial statement but even the tax Audit Report. The assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not actually handed over and the control continued to be with it. The same sites were taken on lease by the assessee from Quipoo and lease rent was claimed as revenue expenditure under the head network operating expenses . The whole scheme being in the nature of a camouflage. Thus the re-assessment was valid. The assessing officer disallowed a sum of ₹9,17,42,400/- paid as lease rent to Quipoo and added back to the total income of assessee in reassessment order passed under section143(3) read with section 147 on 27th March 2014. 5. Aggrieved by the reassessment order and the additions made therein the assessee filed appeal before learned Commissioner (Appeals). Before learned Commissioner (Appeals) the assessee challenged the validity of the reassessment as well as the additions made therein. The assessee also challenged the action of assessing officer that reassessment order was passed in the name of non-existing assessee. The learned Commissioner (Appeals) held that assessing officer reopened the assessment on mere change of opinion and decided to review expenses earlier claimed by assessee, scrutinised by assessing officer and allowed in the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd (85 taxmann.com 330) Delhi High Court), Westlife Development Ltd versus DCIT (ITA 688/Mum/2016) (Mumbai tribunal), Silverline Trading Company Ltd Versus PCIT (ITA No. 66633/Mum/2017) (Mumbai tribunal), Shell India Markets Private Limited Versus ACIT ITA No. 772/Mumbai/2013, Instant Holding Ltd Versus ACIT (ITA No. 4593 and 4748/Mumbai 2011) (Mumbai tribunal), Chanderapur Ferro Alloy Plant Steel Authority India Ltd Versus DCIT (ITA No. 7601 and 7602/Mum/2013) Mumbai tribunal, Siemans Technology Services Private Limited Versus ACIT (ITA No. 61 3/Mumbai 2012), Mumbai tribunal, ACIT Versus ADR Home Decor (P) Limited (61 taxmann.com 243) Delhi tribunal and Akzo Noble Chemicals (India) Ltd versus DCIT ITA No. 1225/Pun/2015 Pune tribunal. 8. In alternative submission the learned AR for the assessee submits that reopening based on mere change of opinion is bad in law. The learned AR submits that no new tangible material came to the notice of assessing officer. The assessing officer reopened the assessment on the basis of information avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was further followed by Mumbai bench in Chanderpur Ferro Alloys Plant versus DCIT (supra) and again Siemens Technology Services Private Limited versus ACIT (supra). 11. We have considered the submission of the parties and perused the material available on record. Ground No. 1 relates to validity of reopening. The crux of the submission of the ld. AR for the assessee is that the reassessment order was passed against the non-existent company despite the fact that the amalgamation was of Spice Communication Ltd with was brought to the notice of the assessing officer. We have noted that the assessing officer issued notice under section 148 dated 26.03.2013 in the name of M/s Spice Communication Ltd, -------, New Delhi . The assessee in response to the notice under section 148 filed its detailed objection vide reply dated 10.02.2014, which is duly acknowledged by assessing officer, copy of the reply/ objection is filed on record at page umber 39 to 53 of the paper book (PB). In the said reply the assessee specifically stated that the assessee has been merged with Idea Cellular Limited and that the assessing officer vide its letter dated 7th June 2011 has inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon'ble High Court was that the assessment was framed against a non-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved consequent upon its amalgamation with M/s. MCorp Private Ltd. w.e.f. 1.7.2003 was a mere procedural defect. In this background, the Hon'ble Delhi High Court formulated the following questions of law: (i) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the action of the Assessing Officer in framing assessment in the name of Spice Corp Ltd. , after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f 01.07.2003, was a mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct/omission to incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and purpose of this Act ? (3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals ? 11. To the similar effect are the judgements of the Hon'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and Micra India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is safe to deduce that an order of assessment made on an entity which is otherwise non-existent on the date of such assessment is invalid. 12. Factually speaking, in the present case the aforesaid proposition applies on all fours, as before the finalization of the impugned assessment on 19.12.2008, it was brought to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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