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ACIT, Central Circle-21, Room No. 344, E-2, ARA Centre,Jhandewalan Extn., New Delhi 55 vs. M/s N.J. Steels Pvt. Ltd., (Amalgamated with M/s Life Time Buildcon Pvt. Ltd.),
February, 20th 2013
                                                           ITA NOS. 545-550/DEL/2012 &
                                                            C.O. NOS. 139-144/DEL/2012


                 IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCH "E" NEW DELHI
        BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND
                     SHRI C.M. GARG, JUDICIAL MEMBER
              I.T.A. Nos. 545, 546, 547, 548, 549 & 550/Del/2012
     A.Yrs. : 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09

ACIT, Central Circle-21,              vs. M/s N.J. Steels Pvt. Ltd.,
Room No. 344, E-2, ARA Centre,            (Amalgamated with M/s Life Time
Jhandewalan Extn., New Delhi ­ 55         Buildcon Pvt. Ltd.),
                                          Through M/s Life Time Buildcon
                                          Pvt. Ltd.,
                                          C-109, Lajpat Nagar-I, New Delhi
                                          (PAN: AABCN6761B)
                                 AND
        Cross Objection Nos. 139, 140, 141, 142, 143 & 144/Del/2012
      A.Yrs. 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09

M/s N.J. Steels Pvt. Ltd.,                vs.   ACIT, Central Circle-21,
(Amalgamated with M/s Life Time                 Room No. 344, E-2, ARA
Buildcon Pvt. Ltd.),                            Centre, Jhandewalan Extn.,
Through M/s Life Time Buildcon Pvt. Ltd.,       New Delhi ­ 55
C-109, Lajpat Nagar-I, New Delhi
(PAN: AABCN6761B)

(Appellant)                                (Respondent)
                                           (Respondent)


           Assessee by                 :   Sh. Salil Kapoor, Advocate
          Department by                :   Sh. Gunjan Prasad, C.I.T.(D.R.)

                                    ORDER
PER BENCH
      These Appeals by the Revenue and Cross Objections by the
Assessee emanate out of common order of the Ld. Commissioner of
Income Tax (A) for the concerned assessment years. Since the issues
are connected and the appeals were heard together. These are being
consolidated for the sake of convenience by this common order.






                                      1
                                                      ITA NOS. 545-550/DEL/2012 &
                                                       C.O. NOS. 139-144/DEL/2012


2.   In these cases common Ld. Commissioner of Income Tax (A)'s
order has been questioned by the parties on a common grounds of the
respective appeals/ cross objections.

3.   The Revenue has questioned the first appellate order on the
following common grounds in its appeals :-

     i)     That the Ld. Commissioner of Income Tax (A) erred in law
            and on facts of the case in upholding the assessment on a
            company which has been dissolved / amalgamated under
            section 391 and 394 of the Companies Act, 1956 is invalid.

     ii)    That the Ld. Commissioner of Income Tax (A) erred in law
            and on facts of the case in deleting the addition of `
            33,39,388/- made on account of unexplained purchase u/s.
            69C of the I.T. Act.

     iii)   That the Ld. Commissioner of Income Tax (A) erred in law
            and on facts of the case in accepting the transactions made
            in cash by the assessee company regarding sale and
            purchase.

     iv)    That the Ld. Commissioner of Income Tax (A) erred in law
            and on facts of the case in deleting the addition of `
            4,34,150/- made on account of expenses and depreciation.

     v)     That the Ld. Commissioner of Income Tax (A) erred in laws
            and on facts in holding that the statement of various
            persons without being confronted to the assessee company
            have weak evidentiary value.




                                   2
                                                         ITA NOS. 545-550/DEL/2012 &
                                                          C.O. NOS. 139-144/DEL/2012


     vi(a) The order of the Ld. Commissioner of Income Tax (A) is
            erroneous and not tenable in law and on facts.

     (b)    The appellant craves leave to add, alter or amend any / all
            of the grounds of appeal before or during the course of the
            hearing of the appeal.

4.   The assessee on the other hand has objected the first appellate
order in its cross objections on the following common grounds :-

     i)     That in view of the facts and circumstances of the case and
            in law the Ld. Commissioner of Income Tax (A) has erred in
            not holding that the notice issued u/s. 153C and the
            assessment order passed u/s. 153C/143(C) are illegal, bad
            in law, without jurisdiction and barred by time limitation.

     ii)    That the documents found during search proceedings, as
            referred to in the satisfaction note, do not belong to
            assessee as the same were part of working papers of the
            C.A. Sh. B.K. Dhingra in whose office the search was
            conducted. Hence, the notice issued u/s. 153C, based on
            said    documents, is illegal,     bad in law and without
            jurisdiction.

     iii)   That admittedly, as recorded in the satisfaction note, no
            seized document related to the relevant assessment year
            was    found and the seized paper referred in the said
            satisfaction note were duly reflected in the regular books of
            account and no incriminating material was found.             Hence,
            the notice      issued u/s. 153C is illegal, bad in law and
            without jurisdiction.

                                     3
                                                        ITA NOS. 545-550/DEL/2012 &
                                                         C.O. NOS. 139-144/DEL/2012


     iv)    That in view of the facts and circumstances of the case the
            Ld. Commissioner of Income Tax (A) has barred on facts and
            in law in holding that the assessment     has been framed in
            conformity with statutory    provision of Section 153C r/w
            section 153A of the Act.

     v)     That in view of the facts and circumstances of the case
            the Ld. Commissioner of Income Tax (A) has erred in facts
            and on law in upholding the validity of assessment
            particularly when the seized document were handed over to
            the Assessing Officer who framed the assessment and the
            additions made    are illegal, bad      in law and         without
            jurisdiction.

     vi)    That on the facts and circumstances of the case and the
            provision of the law, the Ld. Commissioner of Income Tax
            (A) has erred in not considering the fact that                   the
            assessment proceeding for the year under appeal was not
            pending on the date of the recording of satisfaction u/s.
            153C of the Act and accordingly the same did not abate for
            the purpose of initiation of proceedings u/s. 153C and as
            such the assessment being bad in law deserves to be
            quashed.

     vii)   That the respondent reserves the right to add/ amend/ alter
            the grounds of cross objection.

5.   On the perusal of the above grounds of the appeals/                  cross
objections, we find that the issue raised     in the ground no. 1 of the
Revenue appeal goes to the route of the matter. In this connection,
the issue raised was as to whether the assessment order passed on the
                                    4
                                                         ITA NOS. 545-550/DEL/2012 &
                                                          C.O. NOS. 139-144/DEL/2012


assessee is invalid,   since the   assessee company stood dissolved on
amalgamation with M/s Life Time Buildcon P Ltd.              Therefore, we
adjudicate upon this issue in the first instance.

6.   The Revenue has question the action of the Ld. Commissioner of
Income Tax (A) in holding that assessment order passed on the
assessee is a nullity as the company stood dissolved on amalgamation
with M/s Life Time Buildcon P Ltd. Ld. Commissioner of Income Tax (A)
in this case has given a finding that he has gone through the copy of
Master Data of Registrar of Companies, Delhi and Haryana. As per the
same the status of the assessee company               was mentioned as
"amalgamated" meaning thereby dissolved.            Accordingly, it was an
admitted position that the assessee company M/s N.J. Steels Pvt Ltd.
stood dissolved on amalgamation with M/s Life Time Buildcon P Ltd.
That it was an admitted fact that after filing the return of income for
the relevant assessment year, under protest, the assessee company
informed to the Assessing Officer about the fact of the amalgamation
vide its letter filed in response to notice u/s. 143(2) and u/s. 142(1) of
the I.T. Act, 1961. The transferee company it did not participated in
the assessment proceedings.        In this regard, Ld. Commissioner of
Income Tax (A) noted the following case laws:-




     -     Impsat (P) Ltd    vs. I.T.O., ITAT, Delhi `A' Bench I.T.A. NO.
           1430/Del/2004 dated 28.7.2004 : 2005 TTJ (Del) 552 :
           (2004) 91 ITD 354 (Del.).

     -     Commissioner of Income Tax vs. Vived Marketing Servicing

           Pvt. Ltd. I.T.A. No. 273/2009.




                                     5
                                                   ITA NOS. 545-550/DEL/2012 &
                                                    C.O. NOS. 139-144/DEL/2012


-   C.I.T. vs. Express Newspapers Ltd., (1960) 40 ITR 38 (MAD) :

    (1960) Tax 13(3)-282.


-   Commissioner of Income           Tax vs. Amarchand N. Shroff,

    (1963) 48 ITR 59 (SC);


-   I.K. Agencies Pvt. Ltd. vs. Commissioner of Income                    of

    Wealth Ta, Kol-III, Judgement dated 11th March, 2011.


-   Triveni    Engineering       &   Industries   Ltd.    vs.     Deputy

    Commissioner of Income Tax, ITAT, Delhi WT Bench, (2005)

    93 TTJ (Del) 806: (2005) 93 ITD 561.


-   Century Enka Ltd. VS. Deputy Commissioner of .... On 14

    February, 2006 : 2006 101 ITD 489 Mum, 2008 303 ITR 1

    Mum;


-   Pampasar Distillery Ltd. vs. Assistant         Commissioner of

    Income Tax, ITAT,    Kolkata E bench, (2007) 15 SOT 331

    (Kol).


-   Commissioner of Income Tax vs. Kurban Hussain Ibrahimji

    Mithiborwala, 1973 CTR (SC) 454; (1971) 82 ITR 821 (SC);


-   Spice Enterntain Limited vs. C.I.T. I.T.A. No. 475 & 476 of

    2011.


                             6
                                                       ITA NOS. 545-550/DEL/2012 &
                                                        C.O. NOS. 139-144/DEL/2012


7.    Considering the above, Ld. Commissioner of Income Tax (A) held

that in view of the decision of the Courts and Tribunal particularly the

Hon'ble Jurisdictional High Court and Tribunal as discussed above, he

agreed with the assessee that the assessment on a company which

has been dissolved /amalgamated u/s 391 & 394 of the Companies Act,

1956 is invalid.   He observed that there is no provision of the I.T. Act

to make the assessment on an amalgamating company / transfer or

dissolved company. Even though the assessee company participated

in the assessment proceedings.      Ld. Commissioner of Income Tax (A)

concluded that the assessee company stood dissolved on 28.9.2010 on

amalgamation with M/s Life Time Buildcon P Ltd. and in view of this he

accepted the contention of the assessee that assessment order passed

on the assessee company was a nullity.


8.   We have carefully considered the submission in this regard and

perused the records.     We fully concur with the     finding of the Ld.

Commissioner of Income Tax (A) that a company incorporated under

the Indian Companies Act is a juristic person. It takes its birth and

gets life with incorporation and it dies with the dissolution as per the

provision of the Companies Act. On amalgamation, the company seizes

to exist in the yes of the law.     Thus, assessment upon a dissolved

company is impermissible as there is no provisions in Income Tax Act


                                    7
                                                      ITA NOS. 545-550/DEL/2012 &
                                                       C.O. NOS. 139-144/DEL/2012


to make an assessment thereupon.       Ld. Commissioner of Income Tax

(A) in our view, has therefore, rightly held that assessment on a

company which has been dissolved by amalgamation u/s. 391 and 394

of the Companies Act, 1956 is invalid. Admittedly, assessee company

in the present case stood dissolved on 28.9.2010 on amalgamation

with M/s Life Time Buildcon P Ltd. and the assessment order in the

present case was framed on 31.12.2010. Hence, we uphold the order

of the Ld. Commissioner of Income Tax (A).


9.    In view of the above finding on the maintainability of the

assessment order itself, which has been held to be a nullity, the issue

raised in the other grounds of appeals preferred by the revenue and

cross objections raised by the assessee have become infructuous and

they don to need adjudication.


10.   In coming to the above conclusion, we have placed reliance upon

the order of this tribunal in identical circumstances in the case of

Micron Steels Pvt. Ltd. in I.T.A No. 160 and Others vide order dated

21.9.2012.    In this case also Tribunal has held that the assessment

order has become nullity, as it was framed on the amalgamating

company.




                                   8
                                                        ITA NOS. 545-550/DEL/2012 &
                                                         C.O. NOS. 139-144/DEL/2012


11.     Consequently appeals filed by the Revenue and Cross Objections

filed by the assessee are dismissed.


        Order pronounced in the Open Court on 19/2/2013.

        Sd/-                                            Sd/-

       GARG]
 [C.M. GARG]                                    [SHAMIM YAHYA]
JUDICIAL MEMBER                             ACCOUNTANT MEMBER
Date:- 19/2/2013
SRBHATNAGAR

Copy forwarded to: -
1.      Appellant 2.   Respondent           3.   CIT    4.       CIT (A)
5.      DR, ITAT
                            TRUE COPY
                                            By Order,
                                                   Assistant Registrar,
                                                   ITAT, Delhi Benches




                                    9
 
 
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