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TMI Blog2024 (6) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... i Mehul Shah, CA For the Respondent : Shri J. K. Chandnani, Sr. DR ORDER PER BIJAYANANDA PRUSETH, AM: This appeal by the appellant emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, the Act ) dated 21.12.2023 by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short, Ld. CIT(A) ] for the assessment year (AY) 2011-12. 2. The grounds of appeal raised by the assessee are as under: 1. On the basis of facts and circumstances of the case as well as law on the subject, the Ld. CIT(A) has erred in confirming the action of assessing officer in re-opening assessment u/s 147 by issuing notice u/s 148 of the I.T. Act, 1961 to a deceased person i.e. non-existing company. 2. On the basis facts and in the circumstances of the case as well as law on the subject, the Ld. CIT(A) has erred in confirming the action of assessing officer in not issuing notice u/s 143(2) and hence assessment is liable to be quashed. 3. On the basis of facts and circumstances of the case as well as law on the subject Ld. CIT(A) has erred in confirming the action of assessing officer by making an addition of Rs. 40,00,000/- on account of share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the company has ceased to exist and hence it was not possible to file e-return. In the reasons recorded, it has been mentioned that the case was reopened on the basis of the information received from an Investigation Wing that assessee had received share capital and share premium of Rs. 40,00,000/- from an entity namely, M/s Olive Overseas Pvt. Ltd., which was proved to be a shell/paper company, managed and controlled by Mumbai based entry operator, Shri Praveen Kumar Jain. The Assessing Officer, after hearing the assessee, made addition of Rs. 40,00,000/- u/s 68 of the Act of Rs. 1,20,000/- u/s 69C of the Act and Rs. 1,89,078/- towards undisclosed interest income. 5. Aggrieved by the order of Assessing Officer, the assessee went in appeal before Ld. CIT(A). The assessee had raised nine grounds of appeal including validity of re-opening by issuing notice u/s 148 on a dead person i.e. non-existing company. It has also raised grounds for non-issuance of notice u/s 143(2) and various additions made in the assessment order. The Ld. CIT(A) has upheld the re-opening of the assessment by stating that the assessee failed to give documents relating to winding up of the company to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dissolution of assessee-company and the reassessment order is also passed in the name of the dissolved company. The Ld. AR also submitted that this issue is squarely covered by the decision of Hon ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd, (supra) wherein it was held that where during pendency of assessment proceedings, assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity would be without jurisdiction and was to be set aside . The Ld. AR further relied upon the various decisions viz: (i) Adani Estate Management (P.) Ltd. vs. ITO, (2023) 151 taxmann.com 387 (Guj HC), (ii) Adani Wilmar Ltd. vs. ACIT, (2023) 150 taxmann.com 178 (Guj HC), (iii) Jainam Exports vs CST, ITA No.566/SRT/2023, dated 26.10.2023 (iv) DCIT vs. M/s Ameriprise India Pvt. Ltd., ITA No.2191/Del/2023, dated 22.12.2023, (v) Spice Entertainment vs. CST, (2012) 18 ELT 43 (Delhi), (vi) CIT vs. Micro Steels (P.) Ltd., (2015) 59 taxman.com 470 (Delhi)(Mag.), (vii) CIT vs. Micra India (P.) Ltd., (2015) 57 taxmann.com 163 (Delhi). The Ld. AR also referred to another decision in the case of Sky ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority concerned to surrender the PAN of the company due to discontinuity of the business. In response to the letter of the Assessing Office that the factum of conversion of company into LLP was not in his knowledge, the assessee replied that Aaradhana Exim Pvt. Ltd. was converted into Aaradhana Exim LLP on 14.02.2015. Even the Master data of MCA shows the status of the assessee-company as dissolved . The Ld. AR has relied on the decision in the case of Maruti Suzuki India Ltd. (Supra) wherein it was held that if the assessee-company was amalgamated with another company, it loses its identity and assessment order passed subsequently in the name of the said non-existing entity would be without jurisdiction and was to be set aside. In the case of Maruti Suzuki India Ltd. (supra), assessment was made in the name of Suzuki Powertrain India Limited for (SPIL) which was held to be nullity by the ITAT, since the entity was amalgamated with Maruti Suzuki India Ltd. This view was affirmed by the Hon ble High Court. The Revenue filed appeal against the said order. The Hon ble Supreme Court held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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