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TMI Blog2024 (10) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue to be shouldered by the transferee company which concept cannot be easily ignored. The very CIT (Appeals) order for the AY 2002-03 shows that the appeal was filed before the CIT (Appeals) in the name of M/s. Shaw Wallace Properties Ltd., i.e., transferor company. Therefore, it was with the knowledge of the assessee that, even though the merger had been taken place w.e.f 30.09.2001 by virtue of the order passed by the High Courts owing to liability of the transferor company, appeal was filed and pursued. A notice to the assessee was also issued at its Chennai address. Since it was not responded, the AO proceeded to conclude the assessment, as the ITAT has remitted the matter back to the AO to do the same. Thus, it cannot be held that the Assessment Order passed by the AO was a nullity. An assessee cannot wriggle out of the assessment proceeding. At the same time, since there has been no effective hearing to the transferee company whereby, the claim for long term capital has been rejected and was assessed to income, to that extent, the Assessment Order also can be said to be invalid. Decided in favour of revenue. - Hon'ble Mr. Justice R. Suresh Kumar And Hon'ble Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y 2002-03 is concerned, the return was filed on 30.10.2002. The Assessment Order was passed on 31.03.2005. As against the Assessment Order, an appeal was preferred on 25.05.2005 before CIT Appeals. The CIT Appeal passed an order on 30.01.2008. 2.6. Therefore both the orders of the CIT (Appeals), dated 15.01.2008 and 30.01.2008 for the Assessment Year 2000-2001 and AY 2002-03 respectively were under challenge before the Income Tax Appellate Tribunal in ITAT Nos.896 897/Kol/2008. 2.7. Both the Income Tax Appeals were decided vide Common Order, the ITAT dated 17.01.2014. The ITAT allowed both the Income Tax Appeals filed by the respondent Assessee. 2.8. It is interesting to be noted that the transferor company has taken a ground that after the merger or amalgamation which has taken effect from 30.09.2001, the transferor company was no more in existence, therefore no assessment could have been made and therefore the order passed by the Assessing Officer were a nullity. 2.9. However as against the order of assessment passed in respect of AY 2000-01, the transferee company, namely GWL Properties Ltd., filed appeal before the CIT (Appeals), whereas insofar as AY 2002-03, the Appeal was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aspect of the liability which rest on the transferee company even after the amalgamation or merger, but has simply set aside the order of assessment and allowed both the ITAs filed by the Assessee. 7. In this context, the learned standing counsel would rely upon a decision of the Hon'ble Supreme Court in the matter of Principal Commissioner of Income Tax (Central) v. Mahagun Realtors (P) Ltd., reported in AIR 2022 SC 1672 , where he has relied on para 17 and 18 of the Judgment. They read as under :- 17. The amalgamation of two or more entities with an existing company or with a company created anew was provided for, statutorily, under the old Companies Act, 1956, under Section 394 (1) (a). Section 394 empowered the court to approve schemes proposing amalgamation, and oversee the various steps and procedures that had to be undertaken for that purpose, including the apportionment of and devolution of assets and liabilities, etc. Section 394 (2) provided as follows:- (2) Where an order under this section provides for the transfer of any property or liabilities, then, by virtue of the order, that property shall be transferred to and vest in, and those liabilities shall be transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the CIT (Appeals) on 29.01.2007 by the GWL Properties Ltd., i.e., Transferee company and for the AY 2002-03, the CIT (Appeals) was filed on 25.05.2005 by M/s. Shaw Wallace Properties Ltd., i.e., Transferor company, which according to the assessee was not in existence with effect from 30.09.2001. 11. Since very transferor company was not in existence after 30.09.2001, the transferor company viz M/s. Shaw Wallace Properties Ltd., could not have filed appeal before the CIT (Appeals) on 25.05.2005. It is after the two orders were passed by the Madras High Court and Calcutta High Court on 20.02.2002 and 19.04.2002 respectively sanctioning the amalgamation with the effective date i.e., on 30.09.2001. 12. Moreover, if we exercise at the decisions cited by the Revenue in Principal Commissioner of Income Tax (Central) v. Mahagun Realtors (P) Ltd., ( cited supra ), it is clear that in amalgamation unlike the case of winding up of a corporate entity, the entity still continues enfolded within the new or the existing transferee entity. The Supreme Court has held that, the business and the adventure lives on but within a new corporate residence, i.e., the transferee company. Therefore it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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