Income Tax Appellate Tribunal - Mumbai
Chandrapur Ferro Alooy Plant Steel ... vs Dcit Cir 3(2), Mumbai on 16 June, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "C", MUMBAI
BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER
AND
SHRI RAM LAL NEGI, JUDICIAL MEMBER
ITA Nos.7601/Mum/2013
(Assessment Years 2005-06)
ITA Nos.7602/Mum/2013
(Assessment Years 2010-11)
Chandrapur Ferro Alloy Plant,
Steel Authority of India Limited,
(Formerly known as Maharashtra
Elektrosmelt Limited)
(Since merged with Steel Authority of India Ltd.)
International Building, 3rd Floor, M.K.Marg,
Churchgate, Mumbai 400 020
PAN: AAACS 7062 F ...... Appellant
Vs.
The Deputy Commissioner of Income Tax ,Cir.3(2),
Aaykar Bhavan,M.K.Road,
Mumbai 400 020. .... Respondent
Appellant by : Shri A.V.Sonde
Respondent by : Shri Rajat Mittal
Date of hearing : 15/06/2017
Date of pronouncement : 16/06/2017
ORDER
PER G.S.PANNU,A.M:
In both the captioned appeals, a common preliminary issue has been raised, which goes to the root of the jurisdiction of the respective impugned assessments and, therefore, the appeals have been clubbed and heard together and are being disposed of by adverting to such preliminary 2 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) issue. In order to appreciate the controversy, the following discussion is relevant.
2. First, we may take up the appeal for assessment year 2005-06, which is directed against an order passed by CIT(A)-4, Mumbai dated 07/10/2013, which in turn, arises out of an order passed by the Assessing Officer under section 147 r.w.s. 143(3) of the Income Tax Act, 1961 (in short 'the Act') dated 29/11/2012.
3. The sum and substance of the preliminary objection is that the assessment order passed by the Assessing Officer in the name of Maharashtra Elektrosmelt Limited is non-est in the eyes of law, inasmuch as on the date of order of assessment the said entity had ceased to exist on account of it having amalgamated with Steel Authority of India Ltd. w.e.f. 01/04/2010. As per the appellant, in terms of a scheme of arrangement sanctioned by the High Court vide order dated 12/07/2011, the assessee company stood amalgamated with Steel Authority of India Ltd. At the time of hearing, the Ld. Representative for the assessee pointed out that the concern, Maharashtra Elektrosmelt Limited, had ceased to exist not only at the time of passing of the impugned assessment order but it was also non- existent at the time when the Assessing Officer initiated the impugned proceedings by issuance of notice under section 147/148 of the Act dated 21/3/2012. Since the aforesaid issue goes to the root of the impugned assessment, the rival Counsels were heard on this aspect at the threshold itself.
3 ITA Nos.7601/Mum/2013(Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11)
4. In the context of the aforesaid, the relevant facts can be summarized as follows. In this case, a return of income for assessment year 2005-06 was filed by M/s. Maharashtra Elektrosmelt Limited on 16/09/2005, which was subject to a scrutiny assessment under section 143(3) of the Act dated 28/09/2007. Thereafter, the assessment was reopened under section 147 of the Act by issuance of notice under section 148 of the Act dated 21/3/2012, in pursuance to which an assessment has been finalized under section 147 r.w.s. 143(3) of the Act dated 29/11/2012 in the name of M/s. Maharashtra Elektrosmelt Limited. In the meanwhile, in terms of the scheme of amalgamation under section 391 to 394 of the Companies Act, 1956, approved by the High Court on 12/7/2011, M/s. Maharashtra Elektrosmelt Limited stood merged with its holding company, M/s. Steel Authority of India Ltd. w.e.f. 01/04/2010.
5. At the time of hearing, the Ld.Representative for the assessee has referred to the relevant material placed on record viz. the scheme of amalgamation, copy of the order of Ministry of Corporate Affairs in respect of amalgamation of the assessee company with M/s. Steel Authority of India Ltd., etc. Our attention was also invited to a written communication dated 28/09/2012, made to the Assessing Officer during the assessment proceedings, wherein its merger with M/s. Steel Authority of India Ltd. w.e.f. 01/04/2010 has been specifically mentioned. In fact, at pages 15 to 16 of the of the Paper Book are placed written communication addressed to the Assessing Officer in response to the notice issued under section 148 of the Act, which inter-alia, refers to the amalgamation with M/s. Steel Authority of India Ltd. in the caption itself. At the time of hearing, the Ld.Representative 4 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) for the assessee also referred to a communication dated 25/11/2011 addressed to the Assessing Officer, which points out the amalgamation of the assessee company with M/s.Steel Authority of India Ltd. The aforesaid communication has been referred to emphasize that even prior to the issue of notice under section 148 of the Act the Assessing Officer was made aware of assessee's amalgamation with M/s. Steel Authority of India Ltd. Our attention has also been invited to communication dated 26/10/2012 addressed to the Assessing Officer, wherein in para 1.4 assessee's amalgamation with its holding company M/s. Steel Authority of India Ltd. has been referred to. In this communication, assessee also pointed out that " the Notice under Section 148 of the Act has been issued in the name of MEL on 21st March, 2012" and, it is further stated to the Assessing Officer that "
MEL was not in existence as at 21.03.2012 i.e. the date of issue of Notice under Section 148 of the Act" . In this written submission, assessee, inter- alia, also referred to the judgment of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. vs. CIT, 247 CTR 500 (Del) to contend that no notice under section 148 of the Act could be issued in the name of the erstwhile company i.e. M/s. Maharashtra Elektrosmelt Limited 5.1 In view of the aforesaid fact-situation, the Ld.Representative for the assessee pointed out that not only was the notice issued under section 148 of the Act in the name of a non-existent concern, but the assessment has also been completed in the name of a non-existent concern, M/s. Maharashtra Elektrosmelt Limited
6. In contrast, the Ld. Departmental Representative has not controverted the factual matrix brought out by the assessee but contended that the 5 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) Assessing Officer was not made aware of the amalgamation. At the time of hearing itself on account of documents referred by the Ld.Representative for the assessee, the Ld. Departmental Representative was made aware of the non-tenability of his assertions.
7. In this background, we have carefully considered the rival submissions. The fact situation in the present appeal clearly brings out that neither at the time of issuance of the notice under section 148 of the Act and nor at the time of finalization of the impugned assessment on 21/3/2012 and 29/11/2012 respectively, the concern, M/s. Maharashtra Elektrosmelt Limited was in existence. Therefore, not only the impugned assessment proceedings have been finalized in the name of a non-existent concern but the same were initiated also in the name of a non-existent concern. The communications to the Assessing Officer, which have been referred by the assessee before us, and copies of which have been placed in the Paper Book, belie the assertions of the Department that the Assessing Officer was not aware of amalgamation of assessee company with its holding company M/s. Steel Authority of India Ltd. In this context, the decision of the Mumbai Tribunal in the case of M/s.Instant Holdings Ltd, ITA No.4593/Mum/2011 dated 09/03/2016 is clearly applicable, wherein the relevant discussion reads as under:-
7. We have carefully considered the rival submissions. The crux of the controversy in the present appeal revolves around the validity of the action of the Assessing Officer in finalizing the assessment order on 19.12.2008 in the name of ITICL, a company which was non-existent as on that date, since it stood amalgamated with IHL w.e.f. 1.4.2007 and stood dissolved and struck-off from the records of the Registrar of Companies on 5.2.2008 consequent to the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007.6 ITA Nos.7601/Mum/2013
(Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11)
8. In the case of Spice Infotainment Ltd. (supra), the facts were that a return was filed for Assessment Year 2002-03 on 30.10.2002 by M/s. Spice Corp Ltd., i.e., the amalgamating company. Subsequently, vide order dated 11.2.2004 passed by the Hon'ble High Court, the said company stood amalgamated with M/s. MCorp Private Ltd., i.e., the amalgamated company w.e.f. 1.7.2003. The return so filed was picked up for scrutiny assessment vide notice u/s. 143(2) of the Act dated 18.10.2003 in the name of M/s. Spice Corp Ltd., i.e., the amalgamating company. In the course of assessment proceedings, the factum of M/s. Spice Corp Ltd. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon'ble High Court was that the assessment was framed against a non-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved consequent upon its amalgamation with M/s. MCorp Private Ltd. w.e.f. 1.7.2003 was a mere procedural defect. In this background, the Hon'ble Delhi High Court formulated the following questions of law:
"(i) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the action of the Assessing Officer in framing assessment in the name of "Spice Corp Ltd.", after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f 01.07.2003, was a mere "procedural defect"?
(ii) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that in view of the provisions of section 292B of the Act, the assessment, having in substance and effect, been framed on the amalgamated company which could not be regarded as null and void?"
9. The Hon'ble Delhi High Court after referring to the judgement of the Hon'ble Supreme Court in the case of (i) Saraswati Industrial Syndicate v. CIT, 186 ITR 278 and (ii) General Radio and Appliances Co. Ltd. v. M.A. Khader (1986) 60 Comp Case 1013 held that framing of assessment against a non-existing entity goes to the root of the matter, which did not 7 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) constitute a procedural irregularity but a jurisdictional defect. Accordingly, it answered the aforesaid questions of law in favour of the assessee and against the Revenue and allowed the stand of the assessee.
10. Similarly, even in the case of Intel Technology India Pvt. Ltd. (supra) the Hon'ble Karnataka High Court has reached to a similar conclusion. In the case before the Hon'ble Karnataka High Court, one M/s. SSS Ltd. stood amalgamated with Intel Technology India Pvt. Ltd. w.e.f. 1.4.2004; prior to that, it filed a return of income on 28.11.2003 for Assessment Year 2003-04 and an assessment order was passed on 27.3.2006 in the name of the predecessor amalgamating company, i.e., M/s. SSS Ltd. This assessment order was sought to be challenged on the ground that as on 27.3.2006, i.e., the date of passing of assessment order, the said concern had ceased to exist upon its amalgamation with the successor company. In this factual background, the Hon'ble Karnataka High Court, following the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra), answered the following questions of law in favour of the assessee and against the Revenue.
"(1) Whether the Tribunal was correct in holding that the order passed by the Assessing Officer on M/s Software & Silicon Systems India Pvt. Ltd., after being intimated about the merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against the said company and null and void ?
(2) Whether the Tribunal was correct in holding that the provisions of section 292B of the Act will not make the assessment valid as a defect/omission to incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and purpose of this Act ?
(3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals ?"
11. To the similar effect are the judgements of the Hon'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and Micra India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the 8 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) assessee before us. In sum and substance, it is safe to deduce that an order of assessment made on an entity which is otherwise non-existent on the date of such assessment is invalid.
12. Factually speaking, in the present case the aforesaid proposition applies on all fours, as before the finalization of the impugned assessment on 19.12.2008, it was brought to the notice of the Assessing Officer that ITICL stood amalgamated with IHL w.e.f. 1.4.2007 in terms of a scheme of amalgamation approved by the Hon'ble High Court vide order dated 14.12.2007. In our considered opinion, the aforesaid error on the part of the Assessing Officer is liable to be construed as a jurisdictional defect which goes to the root of the matter and such an assessment order is liable to be set-aside. We hold so. At this point, we may take note of the argument set up by the Revenue, which is to say that the amalgamating company, i.e., ITICL was in existence throughout the previous year relevant to assessment year under consideration, and therefore, the order passed in the name of the amalgamating company, i.e., ITICL was a valid assessment. The aforesaid reason has prevailed with the CIT(A) also to reject the plea of the assessee. In our considered opinion, the aforesaid argument of the Revenue deserves to be repelled considering the ratio of the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra). A reading of the judgement of the Hon'ble Delhi High Court in Spice Infotainment Ltd. (supra) reveals that a similar position was canvassed by the Revenue, but the Hon'ble High Court held that the assessment order passed in the name of the erstwhile company was void and such a defect cannot be treated as a procedural defect. In our considered opinion, the stand of the Revenue as well as the CIT(A) on this aspect is clearly untenable having regard to the aforesaid discussion.
13. In the result, we set-aside the action of the Assessing Officer in framing the assessment against ITICL on 19.12.2008 as the said company was non-existent as it stood amalgamated with IHL w.e.f. 1.4.2007, following the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007 To the similar effect are the decisions of the Mumbai Tribunal in the case of Ambuja Cement Rajasthan Ltd. in WTA No.11/Mum/2014 dated 24/4/2016 and Siemens Technology Services Pvt. Ltd. dated 16/11/2016. The Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani & Anr., Writ Peition No.1069 of 2016 dated 08/06/2016, also upheld the proposition that 9 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) making of assessment on a non-existent entity goes to the root of the jurisdiction of the Assessing Officer to make the assessment.
7.1 Considering the entirety of facts and circumstances of the case, we hereby set-aside the action of the Assessing Officer in framing the impugned assessment against M/s. Maharashtra Elektrosmelt Limited on 29/11/2012, because on that date it was a non-existent concern on account of its amalgamation with M/s. Steel Authority of India Ltd. w.e.f. 01/04/2010 following the scheme of amalgamation approved by the High Court dated 12/07/2011. In other words, the assessment order dated 29/11/2012 is held to be invalid and void-ab-initio. Since we have upheld the preliminary plea of the assessee, which goes to the root of the jurisdiction and the assessment has been set-aside as void-ab-initio, the necessity of examination of other Grounds of appeal raised by the assessee on merits of the assessment is obviated. Thus, on the aforesaid aspect itself, the appeal in ITA No.7601/Mum/2013 is allowed as above.
8. In so far as appeal in ITA No.7602/Mum/2013 pertaining to assessment year 2010-11 is concerned, the same is directed against an order passed by CIT(A)-4, Mumbai dated 07/10/2013, which in turn, arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short 'the Act') dated 01/01/2013.
8.1 It was a common point between the parties that the fact-situation in the instant appeal is on similar footing to that considered by us in the appeal for assessment year 2005-06, inasmuch as, in the instant case also the assessment has been framed by the Assessing Officer on 01/01/2013 in the 10 ITA Nos.7601/Mum/2013 (Assessment Years 2005-06) ITA Nos.7602/Mum/2013 (Assessment Years 2010-11) name of M/s. Maharashtra Elektrosmelt Limited, a concern which was non- existent as on that date. Thus, our decision in assessment year 2005-06 regarding the validity of such an assessment is applicable mutatis mutandis in this year also. As a consequence, the assessment order dated 01/01/2013 completed in the name of the erstwhile company M/s. Maharashtra Elektrosmelt Limited is set-aside and treated as null and void.
9. Since we have upheld the preliminary plea of the assessee, which goes to the root of the jurisdiction and the assessment has been set-aside as void- ab-initio, the necessity of examination of other Grounds of appeal raised by the assessee on merits of the assessment is obviated. Thus, on the aforesaid aspect itself the appeal in ITA No.7602/Mum/2013 is allowed as above.
10. In the result, appeals of the assessee are allowed, as above.
Order pronounced in the open court on 16/06/2017
Sd/- Sd/-
(RAM LAL NEGI ) (G.S. PANNU)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated 16/06/2017
Vm, Sr. PS
Copy of the Order forwarded to :
1. The Appellant ,
2. The Respondent.
3. The CIT(A)-
4. CIT
5. DR, ITAT, Mumbai
6. Guard file.
BY ORDER,
//True Copy//
(Dy./Asstt. Registrar)
ITAT, Mumbai