Income Tax Appellate Tribunal - Ahmedabad
Amit Intertrade Pvt. ... vs The Dy. Commissioner Of Income Tax, ... on 20 January, 2020
आयकर अपील य अ धकरण, अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
'B' BENCH, AHMEDABAD
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
And SHRI WASEEM AHMED, ACCOUNTANT MEMBER
Sl. ITA No(s) Asset. Appeal(s) by
No(s) Year(s) Appellant vs. Respondent
Appellant Respondent
1. 664/Ahd/2018 2009-10 DCIT Amit Intertrade Pvt. Ltd.
Central Circle-2(4), Iscon House, C.G. Road,
Ahmedabad, 3rd Floor, Near City Bank,
Aaykar Bhavan Navrangpura, 380009
Annexe, Ashram Road, PAN No. AAFCA8117L
Ahmedabad-380008
Sl. C.O. No(s) Asset. Appeal(s) by
No(s) Year(s) Appellant vs. Respondent
Appellant Respondent
2. 61/Ahd/2019 2009-10 Amit Intertrade Pvt. Ltd. DCIT
Iscon House, C.G. Road, Central Circle-2(4),
Near City Bank, Ahmedabad, 3rd Floor,
Navrangpura, 380009 Aaykar Bhavan
PAN No. AAFCA8117L Annexe, Ashram Road,
Ahmedabad-380008
Assessee by : Shri Alok Singh, CIT DR.
Revenue by : Smt. Nupur Shah, AR
सु न वाई क तार ख/ Date of Hearing : 18.11.2019
घोषणा क तार ख / Date of Pronouncement : 20.01.2020
आदे श/O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
The appeal has been filed by the Revenue and the Cross Objection has been filed by the assessee for A.Y. 2009-10 which are arising from the order of the CIT(A)-11, Ahmedabad dated 02.01.2018, in the proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short "the Act").
2 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019AY: 2009-10
2. The Revenue has raised the following grounds of appeal:
"1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in quashing the assessment when the AO was not aware about the amalgamation of the assessee company with another assessee at the time of issue of notice under section 148 and the Ld. CIT(A) has himself passed his appellate order in the name of the same assessee.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not giving direction about the correct person in whose hands the income assessed in the hands of the assessee was to be assessed, if this assessee was not in existence.
3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the additions of Rs. 8,44,69,500/- made by the AO under section 69A to the income of the assessee.
4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the AO.
5. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent."
3. The first issue raised by the Revenue in ground Nos. 1 and 2 is that the learned CIT (A) erred in quashing the assessment framed under section 147/143 (3) of the Act by holding that the AO has framed the assessment on non-existence company.
4. The facts in brief are that the assessee is a private limited company and filed its return of income declaring NIL. The assessee company got merged with J.P. Iscon Ltd. with effect from 01.04.2014 by the order of Hon'ble Gujarat High Court vide dated 31.08.2015. However, the AO has issued a notice under section 148 of the Act dated 30.03.2016 in the name of the company (Amit Intertrade Private Limited) and not in the name of amalgamated company namely J.P. Iscon Ltd. Subsequently, the AO framed the assessment under section 143(3)/147 of the Act, vide order dated 30.12.2016 in the name of the company and not in the name of amalgamated company.
3 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019AY: 2009-10
5. However, the learned CIT (A) on appeal has quashed the assessment framed by the AO under section 143(3) r.w.s. 147 of the Act, by observing as under:
"4.2.1 Facts of the case and the submissions of the appellant with case laws relied upon have been carefully gone through. It is a fact that the appellant company got merged with J. P. Iscon Ltd. w.e.f. 01.04.2014. These facts are mentioned in the assessment order itself in para 9.2 (page12). Therefore, there is no doubt about the fact that the appellant company had been amalgamated with J.P. Iscon Ltd. w.e.f. 01.04.2014 and the amalgamated scheme was approved by the Hon'ble High Court of Gujarat vide order dated 31.08.2015. Thus, on the date i.e. 30.03.2016 of issue of notice u/s. 148 of the Act, the appellant company was not in existence. Now the question arises whether assessment can be made in the name of the non-existing company. A company is an artificial person and created and dissolved as per the provisions of the Companies Act. It is settled legal principle that an assessment cannot be made in the name of a dead person. If it comes to the notice of the AO that the person(individual) is no more, proceedings must be initiated in the name of legal heir and should not be continued in the names of deceased person. Similarly, company being an artificial person, proceedings under the income-tax cannot e kept continue once the AO has noticed that the company has been dissolved and amalgamated with other company. Proceedings should be initiated in the name of new company (company in which the company amalgamated). If the assessment is made in the name of the company which has ceased to exist, such assessments are ab-initio void and held as illegal."
Being aggrieved by the order of the learned CIT (A), the Revenue is in appeal before us.
6. The learned DR before us submitted that the assessee has not raised any objection on the notices issued under section 148 of the Act upon it. The learned DR also claimed that the AO has considered the name of the amalgamated company namely J.P. Iscon Ltd. in his order.
7. On the other hand, the learned AR before us filed a paper book running from pages 1 to 403 and submitted that the assessment has been framed in the name of the non-existent company. Therefore, the assessment order framed under section 147/143(3) of the Act is liable to be quashed.
4 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019AY: 2009-10 7.1 Both the learned DR and the AR before us relied on the order of the authorities below as favourable to them.
8. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, the assessee company got merged with J.P. Iscon Ltd. with effect from 01.04.2014 by the order of Hon'ble Gujarat High Court dated 31.08.2015. This fact was also admitted by the AO in his order. The relevant finding of the AO is reproduced as under:
"9.2 The Assessee Company was a group company of JP Iscon Group which was amalgamated in JP Iscon Ltd. since 1/04/2014. It has two directors namely Shri Jatin Gupta and Amit Gupta, who are real brother in relation."
9. The provision of section 159 of the Act has direct bearing on the issue on hand which reads as under:
"159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased.
(2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1),--
(a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased;
(b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and
(c) all the provisions of this Act shall apply accordingly.
(3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee.
(4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains 5 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019 AY: 2009-10 undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of or parted with.
(5) The provisions of sub-section (2) of section 161, section 162, and section 167, shall, so far as may be and to the extent to which they are not inconsistent with the provisions of this section, apply in relation to a legal representative.
(6) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability."
10. Undisputedly, the assessee company was not in existence at the time of framing the assessment under section 147/143(3) of the Act. Thus, the provision of section 159 of the Act mandates to frame the assessment in the hands of the legal representative. In the case on hand the assessee company has been amalgamated with another company namely J.P. Iscon Ltd., therefore, it was imperative on the part of the AO to frame the assessment in the name of the amalgamated company. But the AO failed to do so. Therefore, we hold that the assessment framed by the AO under section 147/143(3) of the Act, is not sustainable. In holding so, we find support and guidance from the judgment of Hon'ble Delhi High Court in case of PCIT vs. Nokia Solutions & Network India (P) Ltd. reported in 402 ITR 21 (Delhi), wherein it was held as under:
"6. It is evident from the narration of facts that in the first instance the assessment was conducted in the name of a non existing entity. The DRP to whom the matter was directed by the first remand of the ITAT, was not directed to, in turn, require the AO to "better" the original incurable illegality and here the DRP clearly did that. The fact that the matter was remitted at the instance of the assessee who did not question the remand ipso facto does not, in any manner, further the Revenue's contentions. The Revenue had also urged that even in the first place when the assessee approached the DRP, the name of the old entity was invoked and that consequently it cannot now say that the assessment was a nullity. This Court is of the opinion that the ruling in Spice Entertainment Ltd. (supra) is categorical, in that, if the assessment is concluded in favour of a non existing entity, then notwithstanding Section 292B, the position does not improve. Applying Spice Entertainment Ltd. (supra), this Court had in CIT v. Dimension Apparels (P.) 6 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019 AY: 2009-10 Ltd. [2015] 370 ITR 288/[2014] 52 taxmann.com 356 also held that the position taken or urged by the assessee cannot be held against it if the primary jurisdiction does not exist i.e. to conclude an assessment in the name of a non existing entity.
7. In these circumstances, having regard to the legal position established by the authorities, the Court is of the considered view that the Revenue's arguments are not merited; no question of law arises. The appeal is dismissed."
We also find support and guidance from the judgment of Hon'ble Delhi Court in the case of PCIT vs. Maruti Suzuki India Ltd. reported 397 ITR 681 (Delhi) which was subsequently affirmed by the Hon'ble Supreme Court, where it was held as under:
"The revenue has repeatedly brought the issue before the Court in a large number of cases where, in more or less identical circumstances, the Assessing Officer had passed the assessment order in the name of the entity that had ceased to exist as on the date of the assessment order. In many of these cases, as in the present case, the Assessing Officer, after mentioning the name of the Amalgamating Company as the assessee, mentioned below it the name of the Amalgamated Company. [Para 12] The submission of revenue that under section 292B, the successor-in-interest is precluded from raising an objection if it has participated in the assessment proceedings was negatived in Spice Infotainment Ltd. v. CIT [2012] 247 CTR (Del.) 500 wherein it was held that once it was found that the assessment was framed in the name of a non-existent entity, it did not remain a procedural irregularity of the nature which could be cured by invoking the provisions of section 292-B. [Para 14] The legal position having been made abundantly clear, there is no hesitation in holding that impugned order passed by Tribunal does not require any interference. [Para 16]"
In view of the above and after considering the facts in totality, we hold that the assessment framed under section 147/143(3) of the Act in the name of the assessee company is not sustainable and liable to be quashed. Accordingly, we quashed the same. Hence, the ground of appeal of the Revenue is dismissed.
11. As we have addressed the technical issue raised by the Revenue, we are not inclined to adjudicate the issue raised by the Revenue on merit. Hence, the 7 ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019 AY: 2009-10 issues raised by the Revenue on merit become infructuous and accordingly we dismiss the same.
12. In the result, the appeal filed by the Revenue is dismissed.
Coming to the CO No. 61/AHD/2019(Assessee's Appeal):-
13. As we have quashed the assessment framed under section 147/143(3) of the Act in the appeal filed by the Revenue vide paragraph number 8 to 12 of this order. For the detailed discussion, please refer the relevant paragraph. As, we have quashed the assessment order framed under section 147/143(3) of the Act, there is no reason to adjudicate the issue raised by the assessee in the CO. As such the CO becomes infructuous and requires no separate adjudication. Hence, we dismiss the same.
14. In the result, the CO filed by the assessee is dismissed.
15. In the combined results, the appeal filed by the Revenue and the CO filed by the assessee are dismissed.
Order pronounced in the Court on 20th January, 2020 at Ahmedabad.
Sd/- Sd/-
(RAJPAL YADAV) (WASEEM AHMED)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 20/01/2020
Tanmay, Sr. PS TRUE COPY
8
ITA No. 664/Ahd/2009 & C.O. No. 61/Ahd/2019
AY: 2009-10
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु#त / Concerned CIT
4. आयकर आयु#त(अपील) / The CIT(A)-
5. &वभागीय *त*न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad.
6. गाड- फाईल / Guard file.
ु ार/BY ORDER, आदे शानस स या&पत *त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ"धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation 14.01.2020
2. Date on which the typed draft is placed before the Dictating Member 14.01.2020
3. Other Member.....................
4. Date on which the approved draft comes to the Sr.P.S./P.S 17.01.2020
5. Date on which the fair order is placed before the Dictating Member for pronouncement......
6. Date on which the fair order comes back to the Sr.P.S./P.S.......
7. Date on which the file goes to the Bench Clerk20.01.2020
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order..................