M/s. Oxigen Infovision Pvt. Ltd., Delhi V. DCIT, New Delhi

CO 166/DEL/2015

• Counselvise Citation: [2017] 119 COUNSELVISE.COM (IT) 3477 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P GUPTA
• Assessee Lawyers: SATYAM SETHI ADV SH A PANDA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-5718/DEL/2014 ( ASSESSMENT YEAR: 2007-08) DCIT CIRCLE 13(1), NEW DELHI. VS OXIGEN INFOVISION PVT. LTD. G-4, COMMUNITY CENTRE, C-BLOCK, NARAINA VIHAR, DELHI. AAACO8071G & CO NO.-166/DEL/2015 (IN ITA NO. 5718/DEL/2014) ( ASSESSMENT YEAR: 2007-08) OXIGEN INFOVISION PVT. LTD. G-4, COMMUNITY CENTRE, C-BLOCK, NARAINA VIHAR, DELHI. AAACO8071G VS DCIT CIRCLE 13(1), NEW DELHI. ASSESSEE BY SH. SATYAM SETHI, ADV. SH. A. PANDA, ADV. REVENUE BY SH. S.P. GUPTA, SR. DR ORDER PER SHRI K. NARSIMHA CHARY, J.M. REVENUE PREFERRED THIS APPEAL CHALLENGING THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI, DELHI (HEREINAFTER FOR SHORT CALLED AS THE LD. CIT (A)) ON 24.07.201 4 IN APPEAL NO. DATE OF HEARING 11.09.2017 DATE OF PRONOUNCEMENT 19.09.2017 2 ITA NO. 5718/DEL/2014 & CO NO. 166/DEL/201 5 244/2009-10, WHEREBY THE LD. CIT (A) ALLOWED THE AP PEAL OF THE ASSESSEE. THE REVENUE RAISED THESE GROUNDS FOR ADJ UDICATION: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT (A) HAS ERRED IN LAW IN QUASHING THE ASSESSMENT PRO CEEDINGS BY IGNORING THE FACT THAT THE NOTICE U/S 143(2) WAS IS SUED TO ASSESSEE COMPANY ON 23.09.2008 IN THE NAME OF OXIGEN INFOVIS ION PVT. LTD. PRIOR TO ORDER OF THE HONBLE HIGH COURT OF DELHI D ATED 19.01.2009 AND MR. A.K. MISHRA, CA WAS AUTHORIZED BY THE ASSES SEE M/S OXIGEN INFOVISION PVT. LTD. TO REPRESENT THE CASE O F THE ASSESSEE BEFORE THE INCOME TAX DEPARTMENT ON 27.11.2009. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN QUASHING THE ASSESSMENT PROCEEDING S BY IGNORING THE FACT THAT DURING ASSESSMENT PROCEEDINGS THE AUT HORIZED CA OF THE COMPANY HAS NEVER OBJECTED THE ASSESSMENT PROCEEDIN GS IN THE NAME OF M/S OXIGEN INFOVISION PVT. LTD. INSTEAD OF SUCCESSOR M/S OXIGEN SERVICES PVT. LTD. AND THE AR OF THE ASSESSE E COMPANY ONLY INTIMATED ABOUT THE AMALGAMATION OF SAID COMPANY WI TH OXIGEN SERVICES INDIA PVT. LTD. 3. THE APPELLANT CRAVES TO BE ALLOWED TO ADD ANY FRESH GROUND OF APPEAL AND/OR DELETE OR AMEND ANY OF THE GROUNDS OF APPEAL . 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE I.E. OXIGEN INFOVISION, THE ASSESSEE COMPANY, FALLS UNDER THE U MBRELLA OF OXIGEN GROUP, AND IS PROVIDING TELECOM RELATED VALU E ADDED SERVICES. DURING THE YEAR, CONTENT SALE TO THE TUN E OF RS. 2,45,000/- HAS BEEN SHOWN. THE ASSESSEE COMPANY HA S FURTHER DECLARED OTHER INCOME BY WAY OF DIVIDEND OF RS. 7,9 6,654/- (CLAIMED AS EXEMPT), INTEREST ON FDR TO THE TUNE OF RS. 31,99,916/- AND MISC. INCOME AT RS. 4,188/-. AFTER DEBITING HUGE EXPENSES IN THE PROFIT AND LOSS ACCOUNT, LOSS OF RS . 5.02 CRORE WAS 3 ITA NO. 5718/DEL/2014 & CO NO. 166/DEL/201 5 DECLARED IN THE PROFIT AND LOSS ACCOUNT. ON SCRUTI NY OF THE RETURN OF INCOME TAX FILED ON 31.10.2007 DECLARING THE TOT AL LOSS OF RS. 5,31,11,293/- THE AO BY WAY OF ORDER DATED 29.12.20 09 MADE CERTAIN ADDITIONS AND RETURNED LOSS OF THE ASSESSEE AT 91,17,140/-. BEFORE THE LD. CIT (A) THE ASSESSEE HAD RAISED THE PLEA THAT THE ASSESSEE HAS BEEN AMALGAMATED WITH M/S OXIGEN SERVI CES INDIA PVT. LTD. W.E.F. 01.07.2008, PURSUANT TO THE ORDERS OF THE HONBLE HIGH COURT. ON CONSIDERING THIS PLEA, LD. CIT (A) RETURNED A FINDING THAT ON AMALGAMATION THE ASSESSEE CEASED TO EXIST IN THE EYE OF LAW AND ASSESSMENT UPON A DISSOLVED COMPANY IS IMPERMISSIBLE SINCE THERE IS NO PROVISIONS IN INCOM E TAX ACT TO MAKE AN ASSESSMENT ON A NON-EXISTENT ENTITY. ON TH IS PREMISE, LD. CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE. AG GRIEVED BY THIS IMPUGNED ORDER THE REVENUE IS IN APPEAL BEFORE US, WHEREAS SUPPORTING THE ORDER OF THE LD. CIT (A) THE ASSESSE E FIELD CROSS OBJECTION. 3. AT THE OUTSET, ASSESSEE WITHDRAWS THE CROSS OBJE CTION AND RECORDING THE SAME, WE DISMISS THE CROSS OBJECTION AS WITHDRAWN. 4 ITA NO. 5718/DEL/2014 & CO NO. 166/DEL/201 5 4. IT IS THE ARGUMENT OF THE LD. DR THAT THE LD. CI T (A) IGNORED THE FACT THAT THE NOTICE U/S 143(2) WAS ISSUED TO A SSESSEE COMPANY ON 23.09.2008 IN THE NAME OF OXIGEN SERVICE S INDIA PVT. LTD. PRIOR TO THE ORDER DATED 19.01.2009 OF THE HON BLE HIGH COURT OF DELHI AND THERE WAS REPRESENTATION BEFORE THE DE PARTMENT ON BEHALF OF THE ASSESSEE ON 27.11.2009. HE FURTHER A RGUED THAT THE LD.CIT (A) FURTHER IGNORED THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE NEVER OBJECTED THE ASSESSMENT PROCEEDINGS IN THE NAME OF M/S OXIGEN SERVICES INDIA PVT. LTD. INSTEAD OF SUCCESS OF M/S OXIGEN SERVICES INDIA PVT. LTD. EXCEPT INTIMATING THE FACT OF AMALG AMATION OF THE COMPANIES. PER CONTRA, IT IS THE ARGUMENT OF THE L D. AR THAT WITH THE ORDER DATED 19.01.2009 PASSED BY THE HONBLE JU RISDICTIONAL HIGH COURT THE ASSESSEE COMPANY CEASED TO EXIST AND THE SAID FACT WAS BROUGHT TO THE NOTICE OF THE AO BY LETTER DATED 27.11.2009 BUT IN SPITE OF THE SAME THE ASSESSMENT ORDER CAME TO B E PASSED ON 29.12.2009 AND SUCH AN ORDER IS NON-EST IN THE EYE OF LAW. HE PLACED RELIANCE ON THE DECISIONS REPORTED IN SPICE INFOTAINMENT LTD. VS. CIT (2012) 247 CTR 500 (DEL), CIT VS. DIME NSION APPARELS P. LTD. (2015) 370 ITR 288 (DEL), RUSTAGI ENGINEERI NG UDYOG P. 5 ITA NO. 5718/DEL/2014 & CO NO. 166/DEL/201 5 LTD. VS. DY. CIT (2016) 382 ITR 443 (DEL) AND CIT V S. MICRA INDIA (P) LTD. (2015) 231 TAXMAN 809 (DEL). 5. FACTS ARE ADMITTED AND THERE IS NO DISPUTE THAT PURSUANT TO THE ORDERS DATED 19.01.2009 THE ASSESSEE COMPANY WA S AMALGAMATED WITH M/S OXIGEN SERVICES INDIA PVT. LTD . W.E.F. 01.07.2008 AND THE SAID FACT WAS BROUGHT TO THE NOT ICE OF THE AO BY LETTER DATED 27.11.2009 BY THE ASSESSEE. IN ALL THE DECISIONS RELIED UPON BY THE ASSESSEE REFERRED TO SUPRA ITS I S CONSISTENTLY HELD THAT A COMPANY INCORPORATED UNDER THE INDIAN C OMPANIES ACT IS A JURISTIC PERSON, TAKES ITS BIRTH AND GETS LIFE WITH INCORPORATION AND IT DIES WITH THE DISSOLUTION AS P ER THE PROVISION OF THE COMPANIES ACT, AND A COMPANY CEASES TO EXIST IN THE EYES OF THE LAW. THUS, ASSESSMENT UPON A DISSOLVED COMPANY IS IMPERMISSIBLE AS THERE IS NO PROVISION IN INCOME TA X ACT TO MAKE AN ASSESSMENT THEREUPON. IN THE LIGHT OF THIS LEGA L POSITION, WE DO NOT FIND ANY ILLEGALITY OR IRREGULARITY IN THE IMPU GNED ORDER, AS SUCH, WE UPHOLD THE SAME. 6 ITA NO. 5718/DEL/2014 & CO NO. 166/DEL/201 5 6. IN THE RESULT, BOTH APPEAL AND THE CO ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.09.2017 SD/- SD/- (N.K. SAINI) (K . N. CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19.09.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 14.09.2017 DRAFT PLACED BEFORE AUTHOR 14.09.17 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 19.9.17 KEPT FOR PRONOUNCEMENT ON 19.9.17 FILE SENT TO THE BENCH CLERK 19.9.17 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.