M/s. SPN Milk Product Industries (P) Ltd., New Delhi V. ACIT, New Delhi

CO 86/DEL/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8347 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 04-02-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 28-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Keywords: Search and seizure; Question of law; Scheme of amalgamation
• Section: 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .565/DEL/2012 TO 570/DEL/2012 565/DEL/2012 TO 570/DEL/2012 565/DEL/2012 TO 570/DEL/2012 565/DEL/2012 TO 570/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2003 2003 2003 2003- -- -04 TO 2008 04 TO 2008 04 TO 2008 04 TO 2008- -- -09 0909 09 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOM INCOM INCOM INCOME TAX, E TAX, E TAX, E TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, 21, 21, 21, ROOM NO.344, E ROOM NO.344, E ROOM NO.344, E ROOM NO.344, E- -- -2, ARA 2, ARA 2, ARA 2, ARA CENTRE, JHANDEWALAN EXT., CENTRE, JHANDEWALAN EXT., CENTRE, JHANDEWALAN EXT., CENTRE, JHANDEWALAN EXT., NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S SPN MILK PRODUCT INDUSTRIES (P) M/S SPN MILK PRODUCT INDUSTRIES (P) M/S SPN MILK PRODUCT INDUSTRIES (P) M/S SPN MILK PRODUCT INDUSTRIES (P) LTD., LTD., LTD., LTD., (AMALGAMATED WITH M/S SANSKAR (AMALGAMATED WITH M/S SANSKAR (AMALGAMATED WITH M/S SANSKAR (AMALGAMATED WITH M/S SANSKAR PROJECTS AND HOUSING LTD.), PROJECTS AND HOUSING LTD.), PROJECTS AND HOUSING LTD.), PROJECTS AND HOUSING LTD.), THROUGH SANSKAR PROJECTS AND THROUGH SANSKAR PROJECTS AND THROUGH SANSKAR PROJECTS AND THROUGH SANSKAR PROJECTS AND HOUSING LTD., HOUSING LTD., HOUSING LTD., HOUSING LTD., F FF F- -- -5/9, GROUND FLOOR, 5/9, GROUND FLOOR, 5/9, GROUND FLOOR, 5/9, GROUND FLOOR, VAS VAS VAS VASANT VIHAR, ANT VIHAR, ANT VIHAR, ANT VIHAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 057. 110 057. 110 057. 110 057. PAN : AAICS7519K. PAN : AAICS7519K. PAN : AAICS7519K. PAN : AAICS7519K. (APPELLANT) (RESPONDENT) CROSS CROSS CROSS CROSS- -- -OBJECTION OBJECTION OBJECTION OBJECTION NO NO NO NOS SS S. .. .86/DEL/2012 TO 91/DEL/2012 86/DEL/2012 TO 91/DEL/2012 86/DEL/2012 TO 91/DEL/2012 86/DEL/2012 TO 91/DEL/2012 (IN ITA NOS.565/DEL/2012 TO 570/DEL/2012) (IN ITA NOS.565/DEL/2012 TO 570/DEL/2012) (IN ITA NOS.565/DEL/2012 TO 570/DEL/2012) (IN ITA NOS.565/DEL/2012 TO 570/DEL/2012) ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2003 2003 2003 2003- -- -04 TO 2008 04 TO 2008 04 TO 2008 04 TO 2008- -- -09 0909 09 M/S SPN MILK PRODUCT M/S SPN MILK PRODUCT M/S SPN MILK PRODUCT M/S SPN MILK PRODUCT INDUSTRIES INDUSTRIES INDUSTRIES INDUSTRIES (P) LTD., (P) LTD., (P) LTD., (P) LTD., (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S SANSKAR PROJECTS AND SANSKAR PROJECTS AND SANSKAR PROJECTS AND SANSKAR PROJECTS AND HOUSING LTD.), HOUSING LTD.), HOUSING LTD.), HOUSING LTD.), THROUGH SANSKAR PROJECTS THROUGH SANSKAR PROJECTS THROUGH SANSKAR PROJECTS THROUGH SANSKAR PROJECTS AND HOUSING LTD., AND HOUSING LTD., AND HOUSING LTD., AND HOUSING LTD., F FF F- -- -5/9, GROUND FLOOR, 5/9, GROUND FLOOR, 5/9, GROUND FLOOR, 5/9, GROUND FLOOR, VASANT VIHAR, VASANT VIHAR, VASANT VIHAR, VASANT VIHAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 057. 110 057. 110 057. 110 057. PAN : AAICS7519K. PAN : AAICS7519K. PAN : AAICS7519K. PAN : AAICS7519K. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, 21, 21, 21, ROOM NO ROOM NO ROOM NO ROOM NO.344, E .344, E .344, E .344, E- -- -2, ARA CENTRE, 2, ARA CENTRE, 2, ARA CENTRE, 2, ARA CENTRE, JHANDEWALAN EXT., JHANDEWALAN EXT., JHANDEWALAN EXT., JHANDEWALAN EXT., NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAMESH CHANDRA, CIT-DR. ASSESSEE BY : SHRI KAPIL GOEL, ADVOCATE. ITA-565/DEL/2012 & 11 OTHERS 2 ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: : THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDER OF LEARNED CIT(A)-II, DELHI DATED 24 TH NOVEMBER, 2011 FOR THE AY 2003-04 TO 2008-09. 2. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE REVENU E IN ALL THESE SIX YEARS. 3. GROUND NO.1 OF THE REVENUES APPEALS READS AS UN DER:- THAT THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF TH E CASE IN UPHOLDING THAT ASSESSMENT ON A COMPANY WHICH HAS BE EN DISSOLVED/AMALGAMATED UNDER SECTION 391 AND 394 OF THE COMPANIES ACT, 1956 IS INVALID. 4. THE FACTS OF THE CASE ARE THAT THERE WAS SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE INCOME-TAX ACT, 196 1 IN THE CASE OF SHRI B.K. DHINGRA, SMT. POONAM DHINGRA AND M/S MADH USUDAN BUILDCON PVT.LTD. ON 20 TH OCTOBER, 2008. DURING THE COURSE OF SEARCH, CERTA IN DOCUMENTS BELONGING TO THE ASSESSEE WERE SEIZED. O N THE BASIS OF THE DOCUMENTS SO FOUND, PROCEEDINGS WERE INITIATED IN T HE CASE OF THE ASSESSEE COMPANY UNDER SECTION 153C FOR ALL THE SIX ASSESSMENT YEARS UNDER CONSIDERATION. THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT IN THE HANDS OF THE ASSESSEE I.E. M/S SPN MILK PROD UCT INDUSTRIES PVT.LTD. ON 31 ST DECEMBER, 2010. THE ASSESSEE COMPANY M/S SPN MILK PRODUCT INDUSTRIES PVT.LTD. STOOD AMALGAMATED WITH M/S SANSKAR PROJECTS & HOUSING LIMITED VIDE ORDER OF HONBLE DE LHI HIGH COURT DATED 28 TH MAY, 2010 PASSED UNDER SECTIONS 391 & 394 OF THE COMPANIES ACT, 1956. IN VIEW OF THE ABOVE, IT WAS CLAIMED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT THE ASSESSM ENT IN THE HANDS OF A COMPANY, WHICH IS ALREADY AMALGAMATED AND THEREFO RE DOES NOT SURVIVE, IS ILLEGAL AND NULLITY. THE LEARNED CIT(A ) ACCEPTED THE ASSESSEES CONTENTION AND DECLARED THE ASSESSMENT O RDER PASSED ON ITA-565/DEL/2012 & 11 OTHERS 3 THE APPELLANT COMPANY AS NULLITY. THE RELEVANT FIN DING OF THE LEARNED CIT(A) READS AS UNDER:- 14. I HAVE CONSIDERED THE ASSESSMENT ORDER, WRITTE N SUBMISSIONS, REMAND REPORT AND REJOINDER TO THE REM AND REPORT FILED BY THE AR AS WELL AS THE FACTS OF THE CASE AND THE POSITION OF LAW. I HAVE GONE THROUGH THE HONB LE DELHI HIGH COURTS ORDER DATED 28.05.2010 PASSED UNDER SE CTION 391 AND 394 OF THE COMPANIES ACT, 1956. 15. ACCORDINGLY, IT IS AN ADMITTED FACT THE APPELLA NT COMPANY M/S SPN MILK PRODUCTS INDUSTRIES PRIVATE LI MITED STOOD AMALGAMATED WITH M/S SANSKAR PROJECTS & HOUSI NG LIMITED. IT IS ALSO ADMITTED FACT THAT AFTER FILIN G THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR, UNDER PROTEST, THE APPELLANT COMPANY INFORMED TO THE AO ABOUT THE FACT OF THE AMALGAMATION VIDE ITS LETTER DATED 24.12.201 0 (PAGE 130 OF PAPER BOOK) FILED IN RESPONSE TO NOTICE U/S 143(2) AND U/S 142(1) OF THE INCOME TAX ACT, 1961. PARA 5 (PAGE 130 OF THE PAPER BOOK) OF THE SAID LETTER IS REPROD UCED HEREUNDER:- THE SCHEME OF AMALGAMATION HAS BEEN APPROVED VIDE COMPANY PETITION NO.446/2009 CONNECTED WITH COMPANY APPLICATION (M) NO.135/2009 BY THE HONBLE DELHI HI GH COURT UNDER THE PROVISION OF SECTION 391 AND 394 OF THE COMPANIES ACT, 1956 COPY OF ORDER IS ENCLOSED. (P AGE 28 TO 68 OF THE PAPER BOOK). 16. IT IS ALSO NOTED THAT THE AO IN ITS REPORT HAS ADMITTED THE FACT THAT THE APPELLANT CO. M/S SPN MILK PRODUC TS INDUSTRIES PVT.LTD. WAS AMALGAMATED DURING THE A.Y. 2009- 10. IT IS ALSO ADMITTED FACT THAT NO NOTICE U/S 14 3(2)/142(1) OF THE I. TAX ACT, 1961 WAS ISSUED TO THE M/S SANS KAR PROJECTS & HOUSING LIMITED THE TRANSFEREE COMPANY AND IT (THE TRANSFEREE CO.) DID NOT PARTICIPATED IN THE AS SESSMENT PROCEEDINGS. I HAVE ALSO CAREFULLY PURSUED THE FOL LOWING CASE LAWS:- A) IMPSAT (P) LTD. VS. INCOME TAX OFFICER, ITAT, DE LHI A BENCH ITA NO.1430/DEL/2004 DATED 28.07.2004; 2005 T TJ (DEL) 552 : (2004) 91 ITD 354 (DEL).; B) COMMISSIONER OF INCOME TAX VS. VIVED MARKETING SERVICING PVT.LTD. ITA NO.273/2009; ITA-565/DEL/2012 & 11 OTHERS 4 C) CIT VS. EXPRESS NEWSPAPERS LTD., (1960) 40 ITR 3 8 (MAD) : (1960) TAX 13(3)-282; D) COMMISSIONER OF INCOME TAX VS. AMARCHAND N.SHROFF, (1963) 48 ITR 59 (SC) (E) I K AGENCIES PVT.LTD. VS. COMMISSIONER OF WEALT H TAX, KOL-III, JUDGEMENT DATED 11 TH MARCH 2011. (F) TRIVENI ENGINEERING & INDUSTRIES LTD. VS. DEPUT Y COMMISSIONER OF INCOME TAX, ITAT DELHI WT BENCH, (2 005) 93 TTJ (DEL) 806 : (2005) 93 ITD 561; (G) CENTURY ENKA LTD. VS. DEPUTY COMMISSIONER OF ON 14 FEBRUARY, 2006 : 2006 101 ITD 489 MUM, 2008 3 03 ITR 1 MUM; (H) PAMPASAR DISTILLERY LTD. VS. ASSISTANT COMMISSI ONER OF INCOME TAX, ITAT, KOLKATA E BENCH, (2007) 15 SOT 331 (KOL); (I) COMMISSIONER OF INCOME TAX VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA, 1973 CTR (SC) 454; (1971) 8 2 ITR 821 (SC); (J) SPICE ENTERTAINMENT LIMITED VS. CIT ITA 475 & 4 76 OF 2011. THE GIST OF THE JUDGMENT OF THE JURISDICTIUONAL HIG H COURTS ORDER IN THE CASE OF I.T.A. NO.273/2009 COMMISSIONE R OF INCOME TAX VS. VIVED MARKETING SERVICING PVT.LTD. I S REPRODUCED HEREUNDER:- WHEN THE ASSESSING OFFICER PASSED THE ORDER OF ASSESSMENT AGAINST THE RESPONDENT COMPANY, IT HAD ALREADY BEEN DISSOLVED AND STRUCK OFF THE REGISTER OF THE REGISTRAR OF COMPANIES UNDER SECTION 560 OF THE COMPANIES ACT. IN THESE CIRCUMSTANCES, THE TRIBUNA L RIGHTLY HELD THAT THERE COULD NOT HAVE BEEN ANY ASSESSMENT ORDER PASSED AGAINST THE COMPANY WHICH W AS NOT IN EXISTENCE AS ON THAT DATE IN THE EYES OF LAW IT HAD ALREADY BEEN DISSOLVED. THE TRIBUNAL RELIED UPON I TS EARLIER DECISION IN IMPSAT PVT.LTD. VS. ITO 276 ITR 136 (AT ). WE ARE OF THE OPINION THAT THE VIEW TAKEN BY THE TR IBUNAL IS PERFECTLY VALID AND IN ACCORDANCE WITH LAW. NO SUB STANTIAL QUESTION OF LAW ARISES. ITA-565/DEL/2012 & 11 OTHERS 5 THE GIST OF THE JURISDICTIONAL DELHI TRIBUNALS ORD ER IN THE CASE OF IMPSAT (P) LTD. VS. INCOME TAX OFFICER ITAT, DELHI A BENCH (2005) 92 TTJ (DEL) 552 IS RE PRODUCED HEREUNDER:- HELD ASSESSMENT-VALIDITY-ASSESSMENT ON DISSOLVED COMPAN Y- ASSESSMENT ON A COMPANY WHICH HAS BEEN DISSOLVED AN D STRUCK OFF THE REGISTER OF COMPANIES UNDER S. 560 O F THE COMPANIES ACT, 1956, IS INVALID, EVEN THOUGH THE CO MPANY PARTICIPATED IN ASSESSMENT PROCEEDINGS-THERE IS NO PROVISION IN THE IT ACT TO MAKE ASSESSMENT ON A DIS SOLVED COMPANY-IT IS NOT A CASE OF DISCONTINUANCE OF BUSIN ESS SO AS TO ATTRACT S. 176 NOR DOES S. 159 CURE THE LACUN A. CONCLUSION : ASSESSMENT ON A COMPANY WHICH HAS BEEN DISSOLVED AN D STRUCK OFF THE REGISTER OF COMPANIES UNDER S. 560 O F THE COMPANIES ACT, 1956, IS INVALID, EVEN THOUGH THE CO MPANY PARTICIPATED IN ASSESSMENT PROCEEDINGS; IT IS NOT A CASE OF DISCONTINUANCE OF BUSINESS SO AS TO ATTRACT S. 176 NOR DOES S. 159 CURE THE LACUNA. IN VIEW OF THE ABOVE STATED FACTS OF THE CASE AND K EEPING IN MIND THE VIEWS OF VARIOUS COURTS AND TRIBUNALS PARTICULARLY JURISDICTIONAL HIGH COURT AND TRIBUNAL AS DISCUSSED ABOVE, IN MY CONSIDERED OPINION, I AGREE WITH THE APPELLANT THAT ASSESSMENT ON A COMPANY, WHICH H AS BEEN AMALGAMATED UNDER SECTION 391 AND 394 OF THE COMPANIES ACT, 1956, IS INVALID. THERE IS NO PROVI SION IN THE IT ACT, TO MAKE ASSESSMENT ON A AMALGAMATING COMPANY (TRANSFEROR/DISSOLVED COMPANY), EVEN THOUGH THE APPELLANT COMPANY PARTICIPATED IN ASSESSMENT PROCEEDINGS. THE JUDGEMENT IN THE CASES OF A) IMPS AT (P) LTD. VS. INCOME TAX OFFICER, ITAT, DELHI A BENCH ITA NO.1430/DEL/2004 DATED 28.07.2004; 2005 TTJ (DEL) 5 52 : (2004) 91 ITD 354 (DEL) AND B) COMMISSIONER OF INCO ME TAX VS. VIVED MARKETING SERVICING PVT.LTD. ITA NO.2 73/2009 BY THE HONBLE DELHI HIGH COURT ARE SQUARELY APPLIC ABLE TO THE PRESENT FACTS OF THE CASE. THE APPELLANT COMPA NY STOOD ON 28.05.2010 ON AMALGAMATED WITH M/S SANSKAR PROJECTS & HOUSING LIMITED. IN VIEW OF ABOVE, I AC CEPT THE CONTENTION OF THE APPELLANT COMPANY AND HOLD THAT T HE ASSESSMENT ORDER PASSED ON THE APPELLANT COMPANY IS A ITA-565/DEL/2012 & 11 OTHERS 6 NULLITY. THEREFORE, THIS GROUND OF APPEAL IS DECID ED IN FAVOUR OF THE APPELLANT. 5. THE REVENUE, AGGRIEVED WITH THE ORDER OF LEARNED CIT(A), IS IN APPEAL BEFORE US. AT THE TIME OF HEARING BEFORE US , IT IS STATED BY THE LEARNED CIT-DR THAT IN RESPONSE TO NOTICE UNDER SEC TION 153C, THE ASSESSEE FILED THE RETURN OF INCOME AND ALSO PARTIC IPATED IN THE ASSESSMENT PROCEEDINGS, THEREFORE, NOW THE ASSESSEE CANNOT CHALLENGE THAT THE ASSESSMENT MADE IN ITS HANDS IS NULLITY AND VOID AB INITIO . HE, THEREFORE, SUBMITTED THAT THE ORDER OF LEARN ED CIT(A) ON THIS POINT SHOULD BE REVERSED AND THE ASSESSMENT ORDER S HOULD BE UPHELD. 6. IN THE ALTERNATIVE, THE LEARNED CIT-DR STATED TH AT HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SPICE ENTE RTAINMENT LTD. VS. CIT VIDE ITA 476 OF 2011 HAS MADE CERTAIN OBSERVATION I N PARAGRAPH 18 OF THE ORDER. SIMILAR OBSERVATION/DIRECTION SHOULD BE GIVEN BY THE ITAT. 7. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, RELIED UPON THE ORDER OF THE LEARNED CIT(A) AND STATED THA T THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY SEVERAL DECISI ONS MANY OF WHICH HAVE ALREADY BEEN REFERRED BY THE LEARNED CIT(A) IN HIS ORDER. THERE IS NO CONTRARY DECISION. HE ALSO REFERRED TO THE DECI SION OF ITAT DELHI BENCH IN THE CASE OF MICRA INDIA PVT.LTD. VIDE ITA NOS.1060 TO 1065/DEL/2012 IN WHICH BOTH THE MEMBERS OF THIS BEN CH WERE PARTY. HE ALSO REFERRED THE FOLLOWING DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT:- (I) SPICE ENTERTAINMENT LTD. VS. CIT ITA NO.475 OF 20 11. (II) BIRLA SPINNING AND WEAVING MILLS LTD. VS. CIT (19 80) 4 TAXMAN 225 (DELHI). (III) CIT VS. VIVID MARKETING SERVICING PVT.LTD. ITA NO .273 OF 2009. ITA-565/DEL/2012 & 11 OTHERS 7 8. HE FURTHER SUBMITTED THAT THERE IS NO NECESSITY OF ISSUING ANY DIRECTION BY THE ITAT BECAUSE ONCE THE DECISION IN THE HANDS OF THE ASSESSEE COMPANY IS ANNULLED, THE REVENUE AUTHORITI ES ARE ALWAYS AT LIBERTY TO TAKE APPROPRIATE ACTION IN THE HANDS OF APPROPRIATE ASSESSEE IN ACCORDANCE WITH LAW WITHIN THE TIME LIMITATION P RESCRIBED UNDER THE ACT. THEREFORE, THERE IS NO REQUIREMENT OF ANY SUC H OBSERVATION OR DIRECTION AS SUGGESTED BY THE LEARNED DR. 9. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT IDENTICAL ISSUE IS CONSIDERED BY THE ITAT IN THE CASE OF MICRA INDI A PVT.LTD. (SUPRA) IN WHICH THE ITAT HELD AS UNDER:- 6. WE FULLY CONCUR WITH THE FINDING OF THE LD.CIT( A) THAT A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES A CT IS A JURISTIC PERSON. IT TAKES ITS BIRTH AND GETS LIF E WITH INCORPORATION AND IT DIES WITH THE DISSOLUTION AS P ER THE PROVISION OF THE COMPANIES ACT. ON AMALGAMATION, T HE COMPANY SEIZES TO EXIST IN THE EYES OF THE LAW. TH US, ASSESSMENT UPON A DISSOLVED COMPANY IS IMPERMISSIBL E AS THERE IS NO PROVISIONS IN INCOME TAX ACT TO MAKE AN ASSESSMENT THEREUPON. LD.CIT(A), IN OUR VIEW, HAS THEREFORE, RIGHTLY HELD THAT ASSESSMENT ON A COMPAN Y WHICH HAS BEEN DISSOLVED BY AMALGAMATION U/S 391 AN D 394 OF THE COMPANIES ACT, 1956 IS INVALID. ADMITTE DLY, THE ASSESSEE COMPANY IN THE PRESENT CASE STOOD DISSOLVE D ON 22.12.2009 ON AMALGAMATION WITH M/S DYNAMIC BUILDMA RT PVT.LTD. AND THE ASSESSMENT ORDER IN THE PRESENT CA SE HAS BEEN FRAMED ON 31.12.2010. THE FIRST APPELLATE ORD ER ON THE ISSUE IS THUS UPHELD. THE GROUND NO.4 IS ACCOR DINGLY REJECTED. 10. THAT THE HON'BLE JURISDICTIONAL HIGH COURT HAS ALSO CONSIDERED THE IDENTICAL ISSUE IN THE CASE OF SPICE ENTERTAINMENT LTD. (SUPRA) AND HELD AS UNDER:- ITA-565/DEL/2012 & 11 OTHERS 8 11. AFTER THE SANCTION OF THE SCHEME ON 11 TH APRIL, 2004, THE SPICE CEASES TO EXIST W.E.F. 1 ST JULY, 2003. EVEN IF SPICE HAD FILED THE RETURNS, IT BECAME INCUMBENT UPON THE INCOME TAX AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID DEAD PERSON. WHEN NOTICE UNDER SECTION 143(2) WAS SENT, THE APPELLANT/AMALGAMATED COMPANY APPEARE D AND BROUGHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE, HOWEVER, DID NOT SUBSTITUTE THE NAME OF THE APPELLA NT ON RECORD. INSTEAD, THE ASSESSING ITA 475/2011 & ITA- 476/2011 PAGE 9 OF 13 OFFICER MADE THE ASSESSMENT I N THE NAME OF M/S SPICE WHICH WAS NON EXISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AND ASSESSMENT ORDER PASS ED IN THE NAME OF M/S SPICE WOULD CLEARLY BE VOID. SUCH A DEFECT CANNOT BE TREATED AS PROCEDURAL DEFECT. MERE PARTI CIPATION BY THE APPELLANT WOULD BE OF NO EFFECT AS THERE IS NO ESTOPPEL AGAINST LAW. 11. THE FACTS IN THE CASE OF THE ASSESSEE ARE IDENT ICAL AND, THEREFORE, THE RATIO OF THE ABOVE DECISION OF HON'BLE JURISDIC TIONAL HIGH COURT WOULD BE SQUARELY APPLICABLE. IN THIS CASE ALSO, W HEN THE ASSESSMENT WAS MADE, THE ASSESSEE WAS A NON-EXISTING ENTITY. THEREFORE, THE ASSESSMENT ORDER PASSED IN THE NAME OF THE ASSESSEE I.E. M/S SPN MILK PRODUCT INDUSTRIES PVT.LTD. IS CLEARLY VOID. WE, H OWEVER, FIND THAT HON'BLE JURISDICTIONAL HIGH COURT IN THE CONCLUDING PARAGRAPH OF ITS JUDGMENT IN THE CASE OF SPICE ENTERTAINMENT LTD. (S UPRA) HAS OBSERVED AS UNDER:- 18. WE MAY, HOWEVER, POINT OUT THAT THE RETURNS WE RE FILED BY M/S SPICE ON THE DAY WHEN IT WAS IN EXISTE NCE IT WOULD BE PERMISSIBLE TO CARRY OUT THE ASSESSMENT ON THE BASIS OF THOSE RETURNS AFTER TAKING THE PROCEEDINGS AFRESH FROM THE STAGE OF ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. IN THESE CIRCUMSTANCES, IT WOULD BE IN CUMBENT UPON THE AO TO FIRST SUBSTITUTE THE NAME OF THE APP ELLANT IN PLACE OF M/S SPICE AND THEN ISSUE NOTICE TO THE APP ELLANT. HOWEVER, SUCH A COURSE OF ACTION CAN BE TAKEN BY TH E AO ONLY IF IT IS STILL PERMISSIBLE AS PER LAW AND HAS NOT BECOME TIME BARRED. 12. HOWEVER, WE FIND THAT IN THE CASE OF THE ASSESS EE, THE NOTICE WAS ISSUED ON 1 ST OCTOBER, 2010 WHEN THE ASSESSEE COMPANY WAS NOT IN ITA-565/DEL/2012 & 11 OTHERS 9 EXISTENCE. IN THE CASE BEFORE THE HON'BLE JURISDIC TIONAL HIGH COURT, THE ASSESSEE I.E. M/S SPICE ENTERTAINMENT LTD. WAS IN E XISTENCE WHEN THE RETURNS WERE FILED. THEREFORE, SIMILAR DIRECTION A S GIVEN BY THE HON'BLE JURISDICTIONAL HIGH COURT REPRODUCED BY US ABOVE CA NNOT BE GIVEN. HOWEVER, WE MAY OBSERVE THAT THE ASSESSING OFFICER IS AT LIBERTY TO TAKE APPROPRIATE ACTION IN THE CASE OF APPROPRIATE ENTITY IN ACCORDANCE WITH LAW SUBJECT TO TIME LIMIT PRESCRIBED UNDER THE ACT. WITH THIS OBSERVATION, WE UPHOLD THE ORDER OF LEARNED CIT(A) ON THIS POINT AND REJECT GROUND NO.1 OF THE REVENUES APPEAL. 13. IN OTHER GROUNDS OF APPEALS, THE REVENUE HAS CH ALLENGED THE VARIOUS ADDITIONS DELETED BY THE CIT(A) ON MERITS. HOWEVER, ONCE WE HAVE ALREADY QUASHED THE ASSESSMENT ORDER ITSELF, T HE VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER DO NOT SURV IVE. THEREFORE, THE OTHER GROUNDS OF THE REVENUES APPEALS HAVE BECOME INFRUCTUOUS. ACCORDINGLY, THE SAME ARE DISMISSED. 14. WITH REGARD TO CROSS-OBJECTIONS FILED BY THE AS SESSEE, NO SPECIFIC ARGUMENTS WERE ADVANCED BY THE ASSESSEES COUNSEL. WE, THEREFORE, PRESUME THAT THE CROSS-OBJECTIONS WERE NOT PRESSED. ACCORDINGLY, THE SAME ARE DISMISSED BEING NOT PRESSED. 15. IN THE RESULT, THE APPEALS OF THE REVENUE AS WE LL AS THE CROSS- OBJECTIONS OF THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 22 ND FEBRUARY, 2013. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 22.02.2013 VK. ITA-565/DEL/2012 & 11 OTHERS 10 COPY FORWARDED TO: - 1. REVENUE : ASSISTANT COMMISSIONER OF INCOME T AX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -21, ROOM NO.344, E 21, ROOM NO.344, E 21, ROOM NO.344, E 21, ROOM NO.344, E- -- -2, ARA CENTRE, 2, ARA CENTRE, 2, ARA CENTRE, 2, ARA CENTRE, JHANDEWALAN EXT., NEW DELHI. JHANDEWALAN EXT., NEW DELHI. JHANDEWALAN EXT., NEW DELHI. JHANDEWALAN EXT., NEW DELHI. 2. ASSESSEE : M/S SPN MILK PRODUCT INDUSTRIES (P ) LTD., M/S SPN MILK PRODUCT INDUSTRIES (P) LTD., M/S SPN MILK PRODUCT INDUSTRIES (P) LTD., M/S SPN MILK PRODUCT INDUSTRIES (P) LTD., (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S (AMALGAMATED WITH M/S SANSKAR PROJECTS AND HOUSING SANSKAR PROJECTS AND HOUSING SANSKAR PROJECTS AND HOUSING SANSKAR PROJECTS AND HOUSING LTD.), THROUGH SANSKAR PROJECTS AND HOUSING LTD., LTD.), THROUGH SANSKAR PROJECTS AND HOUSING LTD., LTD.), THROUGH SANSKAR PROJECTS AND HOUSING LTD., LTD.), THROUGH SANSKAR PROJECTS AND HOUSING LTD., F FF F- -- -5/9, GROUND FLOOR, VASANT VIHAR, 5/9, GROUND FLOOR, VASANT VIHAR, 5/9, GROUND FLOOR, VASANT VIHAR, 5/9, GROUND FLOOR, VASANT VIHAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 057. 110 057. 110 057. 110 057. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR