G.S. GLOBAL PROJECTS PVT. LTD.,KOLKATA V. D.C.I.T., CC-2(3), KOLKATA, KOLKATA

ITSSA 29/KOL/2023

AI Insights

The case involves G.S. Global Projects Pvt. Ltd., which appealed against the order of the Commissioner of Income-tax (Appeals)-20, challenging the assessment order framed under section 153A read with section 143(3) of the Income Tax Act, 1961, by the Assessing Officer (AO) in the name of a non-existent entity. The company had undergone amalgamation as per an NCLT order dated 15.01.2018, effective from 01.04.2015, prior to the assessment year 2012-13. The Tribunal considered the procedural history, including the delay in filing the appeal, which was condoned, and the substantive legal issues regarding the validity of the assessment in the name of a non-existent company.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474022 (ITAT-KOLKATA)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Other Referred Cases: PCIT vs. Maruti Suzuki India Limited, CIT vs. Spice Infotainment Ltd., Sky Light Hospitality LLP vs. ACIT, Circle-28(1), New Delhi
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHENDU DATTA
• Assessee Lawyers: MIRAJ D SHAH
• Keywords: Set aside; Assessment record; Procedural lapse
• Section: 143(3); 250; 153A; 22; 20

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM IT(SS)A No. 29/KOL/2023 (Assessment Year:2012-13) G.S. Global Projects Pvt. Ltd. 238A, A.J.C. Bose Road, Kolkata-700020 West Bengal Vs. DCIT, Central Circle-2(3), Aaykar Bhavan Poorva, Room No.403, 4th Floor, 110, Shanti Pally, Kolkata-700107 West Bengal (Appellant) (Respondent) PAN No. AABCG7279H Assessee by : Shri Miraj D Shah, AR Revenue by : Shri Subhendu Datta, DR Date of hearing: 12.02.2025 Date of pronouncement : 28.02.2025 O R D E R Per Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals)-20, (hereinafter referred to as the “Ld. CIT(A)”] dated 25.03.2022 for the AY 2012-13. 02. At the outset, we note that there is a delay of 261 days in filing the appeal by the assessee for which the condonation of petition along with affidavit of Shri Somnath Samanta, son of Kalipada Samanta, was filed. It was stated in the affidavit that Shri Somnath Samanta, director of M/s GS Global Projects Private Limited was looking after the taxation matter. It was further stated that the accountant of the company, who was assigned with the task of downloading the orders Page | 2 IT(SS)A No.29/KOL/2023 G.S. Global Projects Pvt. Ltd; A.Y. 2012-13 from IT Portal, missed to download the orders passed u/s 250 of the Act due to confusion which has occurred due to multiplicity of orders in the assessee’s case and in group companies and it is only noticed when a reconciliation was drawn up and it was realized that the appeal has not been filed for the impugned assessment year due to inadvertent mistake. Thereafter the steps were taken to file the appeal and finally, the appeal was filed with a delay of 216 days. 03. Consideration the condonation petition along with the affidavit and DR’s contentions, we are of the view that the delay is for sufficient and bonafide reasons and therefore, same is condoned and appeal is admitted for adjudication. 04. The issue raised in ground no.1 is general in nature and need no specific adjudication for the same. 05. The issue raised in ground no. 2 is against the order of ld. CIT(A) upholding the assessment order framed u/s 153A of the Act read with section 143(3) of the Act passed by the ld. AO on a non-existent entity. 06. At the outset, the ld. Counsel for the assessee submitted that the similar issue has been decided by the co-ordinate bench in favour of the assessee in IT(SS)A No. 20 to 23/KOL/2022 for A.Y. 2012-13 to 2016-17, wherein the issue has been decided in favour of the assessee by the Tribunal. The ld. AR therefore, prayed that the present appeal may also be decided by following the said decision of the co-ordinate Bench. 07. The ld. DR on the other hand submitted that nonetheless the Tribunal has passed the order under similar facts as stated by the ld. AO, however, the Revenue has moved a Miscellaneous Application for Page | 3 IT(SS)A No.29/KOL/2023 G.S. Global Projects Pvt. Ltd; A.Y. 2012-13 recalling the said order which is pending for adjudication and therefore, this appeal may be held in abeyance till the decision in the Miscellaneous Application. 08. After hearing the rival contentions and perusing the materials available on record, we find that the issue at hand is whether the order passed in the name of the assessee i.e. M/s GS Global Projects Private Limited, which has been amalgamated with other company vide order dated 15.01.2018, passed by the NCLT (National Company Law Tribunal), Kolkata Bench, with effect from. 01.04.2015, is valid or not. The the notices were issued and assessment was framed in the name of non-existent company i.e. in the name of amalgamating company which has already merged with the amalgamated company by vide order of NCLT, Kolkata Bench. We note that even it has been informed vide letters dated 23.07.2018 and 23.11.2018, informing the authorities that the aforesaid company has amalgamated with other company along with various other companies. In view of these facts , we are of the view that issuing notices as well as framing assessment in the name of non existent entity is invalid. The case of the assessee is squarely covered by the order of the Tribunal in ITA No. 22 to 23/KOL/2022 and ors. (supra) which is extracted below:- “7. We have heard the rival contentions and perused the relevant material available on record. We find that M/S Madanlal Ramanlal Trading Pvt. Ltd. was amalgamated with other company M/S G.S. Global Projects (P) Ltd. Vide order dated 5.01.2018 w.e.f.1.4.2015 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata. We also observe from the facts as placed before us that the fact of the said company having merged with other entity has been intimated to the ld. Assessing Officer vide letters dated 23.07.2018 copy whereof is placed at page no. 60 of the PB. We find that despite the said intimations to the AO , the notice u/s 153A and other notices were issued in the name of amalgamating companies which was non-existent entity on that date and assessment was framed accordingly in the name of non-existent entity. Thus there is no dispute as to that communication by the assessee to the AO to the effect thatM/s. Madanlal Ramanlal Trading Pvt. Ltd. was amalgamated with other company M/S G.S.Global Projects (P) Ltd. vide order dated 05.01.2018 w.e.f. Page | 4 IT(SS)A No.29/KOL/2023 G.S. Global Projects Pvt. Ltd; A.Y. 2012-13 01.04.2015 of National Company Law Tribunal, Kolkata Bench, Kolkata,which is part of the assessment records. Now the issue before us is whether the notices issued and assessment framed in the name of a non-existent company is valid or suffers from the vice of substantive illegality or this is just a curable procedural mistake on the part of the AO while passing the order In our considered view that the issuance of notices and framing the assessment in the name of nonexistent company is substantive flaw and illegality, which goes root of the matter and is not procedural/technical lapse on the part of the AO, which can be cured by invoking provisions of section 292B of the Act. Considering the facts as placed before us vis a vis the provisions of the Act including that of section 292B of the Act and the various decisions cited before us , we are certainly of the considered opinion that assessment framed in the name of non- existent company is nullity and bad in law. In our considered view, the assessment order in the name of non-existent company suffers from the substantive illegality and is invalid in the eyes of law. The case of the assessee is squarely covered by the decision of Hon’ble Supreme Court in the case of PCIT- vs.-Maruti Suzuki India Limited (supra) wherein it has been held that the assessment order in the name of non- existent entity has to be quashed and set aside as this is a substantive illegality and not procedural lapse of the nature as referred to in section 292B of the Act. The Hon’ble Apex Court has further held that mere fact that the assessee has participated in the proceedings before the AO will not cure this substantive illegality and the mere participation of the assessee in the assessment proceedings cannot debar the assessee from challenging the proceedings on this ground as there is no estoppel against law. The Hon’ble Apex Court has followed the decision of the coordinate bench of two judges, wherein the appeal of the revenue has been dismissed in the case of CIT Vs Spice Infotainment Ltd. (supra) wherein similar ratio has been laid down by the Hon’ble Apex Court. So far as the reliance of the ld DR on the decision of Delhi High Court in the case of Sky Light Hospitality LLP –vs.- ACIT, Circle-28(1), New Delhi(supra), the Hon’ble Apex court in its decision in the case of PCIT – vs.-Maruti Suzuki India Limited (supra) has been discussed and distinguished and then decided the issue in favour of the assessee. Considering the facts and circumstances of the instant case, we are inclined to quash the assessment order passed u/s 153A r.w.s. 143(3) of the Act by reversing the order of the ld CIT(A) on the ground that the assessment in the name of amalgamating company being non-existent is nullity and invalid. The legal ground raised by the assessee is allowed.” 09. We therefore, respectfully following the same, quash the assessment framed u/s 153A read with section 143(3) of the Act by reversing the order of the ld. CIT (A) on the ground that the assessment in the name of amalgamating company being non-existent is nullity and invalid. Accordingly, the legal ground raised by the assessee is allowed. Page | 5 IT(SS)A No.29/KOL/2023 G.S. Global Projects Pvt. Ltd; A.Y. 2012-13 010. Other grounds raised by the assessee on legal issue as well as on merit are not being adjudicated at this stage and are being left open to be decided if the need arises for the same in later stages. 011. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 28.02.2025. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:28.02.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "