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.
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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.
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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.
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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
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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.
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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.
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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
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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.
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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
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