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TMI Blog2017 (12) TMI 1890X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in eyes besides the fact that said fact was duly intimated to ld AO during assessment proceedings and same is also filed to ROC." 3. The assessee company filed its return of income on 04.12.2012 for Rs. 501913/-. During the assessment proceedings an addition of Rs. 19204600/- was made to the income of the assessee on account of unexplained sundry creditors and assessment was framed on 25.02.2015 u/s 144 of the Act assessed income of Rs. 192548513/-. The ld Assessing Officer passed an assessment order in the name of the ("HCP Petrochem Pvt. Ltd, through IP India Pvt. Ltd, (Now known as Adhunik Technology Pvt. Ltd)"). 4. The above company got merged with M/s. IP India Pvt. Ltd as per the scheme of amalgamation in company petition No. 317/2013 along with several other companies vide order dated 10.10.2013 of the Hon'ble Delhi High Court. The appointed date as per the order of the Hon'ble Delhi High Court on 1st April 2012. 5. The assessee agitated the appeal against the order of the ld AO before the ld CIT (A) who vide order dated 12.02.2016 dismissed on merits the appeal of the assessee. However, the ground No. 2 of the appeal of the assessee be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maruti Suzuki India Ltd), Plot No. 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070 9. The Hon'ble High Court held as under:- 8. MSIL filed an appeal before the ITAT where one of the grounds urged was that the assessment order was without jurisdiction inasmuch as it had been passed in the name of an entity that ceased to exist on the date of the assessment order. The ITAT accepted the above plea of the Respondent- MSIL, as a result of which the assessment order was set aside. 9. On the strength of the decision of the Supreme Court in Kuldeep Kumar Dubey v. Ramesh Chandra Goyal [2015] 3 SCC 525, Mr. Asheesh Jain, learned Senior Standing Counsel for the Revenue, urges that in the present case the error, if at all, was a mere misdescription of the party in the assessment order and nothing more. This could not result in the assessment order itself being set aside. He further submits that the record of the assessment proceedings shows that MSIL participated in it fully and raised no objection as to the continuation of the proceedings on the ground of lack of jurisdiction. Mr. Jain invokes Section 292B of the Act to urge that the Assessee is precluded from que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spice Infotainment Ltd.'s case (supra) discussed and noted the following observations in the decision of the Supreme Court in Saraswati Industrial Syndicate Ltd.'s case (supra): "Generally, where only one Company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 170 (2) of the Act, the defect of passing the assessment order in the name of an non-existent entity is a mere irregularity was answered by this Court in Dimension Apparels (P.) Ltd. (supra), where in paras 6 and 7 it was held as under: '6. Sections 170(1) and 170(2) of the Act do not assist the revenue in their case. The revenue does not contest that in a case of amalgamation, the predecessor (being a dissolved company) "cannot be found". Consequently, Section 170(2) applies. This provision clarifies that where the predecessor cannot be found, "the assessment of the income of the previous year in which the succession took place up to the date of the succession and of the precious year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor." (Emphasis Supplied) 7. The revenue seems to argue that the assessment is justified because the liabilities of the amalgamating company accrue to the amalgamated (transferee) company. While that is true, the question here is which entity must the assessment be made on. The text of Section 170(2) makes it clear that the assessment must be made on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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