M/s. United Spirits Limited (Successor to Shaw Wallace Distilleries Limited), Bangalore V. Joint Commissioner Of Income Tax, Special Range- 7, Bangalore

ITA 135/BANG/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4777 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2021
• Assessment Year: 2004-2005
• Appeal Filed On: 28-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Scheme of amalgamation; Set aside
• Section: 271E

Judgement Text

ITA NO.135/BANG/2020 M/S. UNITED SPIRITS LIMITED, BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.135/BANG/2020 ASSESSMENT YEAR : 2004-05 M/S. UNITED SPIRITS LIMITED (SUCCESSOR TO SHAW WALLACE DISTILLERIES LIMITED) UB TOWER, 6 TH FLOOR NO.24, VITTAL MALLYA ROAD BANGALORE PAN NO : AACCM8043J VS. JCIT SPECIAL RANGE 7 BANGALORE (PRESENT JURISDICTION)/ ADDL. CIT RANGE 2(3), MUMBAI (EARLIER JURISDICTION OF AMALGAMATING COMPANY) APPELLANT RESPONDENT APPELLANT BY : SMT. SHREYA LOYALKA, A.R. RESPONDENT BY : MS. NEERA MALHOTRA, D.R. DATE OF HEARING : 08.09.2021 DATE OF PRONOUNCEMENT : 30.09.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 21.11.2019 PASSED BY LD. CIT(A)-10, BENGALURU AND I T RELATES TO ASSESSMENT YEAR 2004-05. ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN DISMISSING THE APPEAL FILED BY IT BEF ORE HIM AS NOT MAINTAINABLE. 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBM ITTED THAT THE A.O. PASSED PENALTY ORDER LEVYING PENALTY U/S 271E OF THE INCOME- ITA NO.135/BANG/2020 M/S. UNITED SPIRITS LIMITED, BANGALORE PAGE 2 OF 4 TAX ACT,1961 ['THE ACT' FOR SHORT] ON 28.6.2007. I N THE PENALTY ORDER, THE NAME OF THE ASSESSEE IS SHOWN AS M/S. SHAW WALL ACE DISTILLERIES LTD. THE A.O. LEVIED A PENALTY OF RS.4,14,70,000/- U/S 271E OF THE ACT FOR ALLEGED CONTRAVENTION OF PROVISIONS OF SECT ION 269T OF THE ACT. THE LD. A.R. SUBMITTED THAT M/S. SHAW WALLACE DISTI LLERIES LTD. WAS MERGED WITH M/S. MCDOWELL & COMPANY LTD., PURSUANT TO THE SCHEME OF AMALGAMATION SANCTIONED BY HONBLE HIGH C OURT OF BOMBAY & HONBLE HIGH COURT OF KARNATAKA. THE APPO INTED DATE FOR MERGER WAS DETERMINED AS 1 ST APRIL, 2005. SUBSEQUENTLY, M/S. MCDOWELL & COMPANY LTD. CHANGED ITS NAME TO M/S. UN ITED SPIRITS LTD. ACCORDINGLY, THE PRESENT NAME OF THE ASSESSEE COMPANY IS M/S. UNITED SPIRITS LTD. 3. THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) CHA LLENGING THE PENALTY LEVIED U/S 271E OF THE ACT. IN FORM NO.35, THE NAME OF THE ASSESSEE WAS MENTIONED AS UNDER: SHAW WALLACE DISTILLERIES LTD. (SINCE AMALGAMATED WITH MCDOWELL & COMPANY LTD., NOW KNOWN AS UNITED SPIRIT S LTD.) THE LD. CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAS FILED APPEAL IN THE NAME OF A NON-EXISTENT COMPANY AND HENCE THE AP PEAL IS NOT MAINTAINABLE. WHEN THIS VIEW WAS POINTED OUT BY LD . CIT(A), THE ASSESSEE FILED REVISED FORM NO.35 WITH THE FOLLOWIN G NAME: UNITED SPIRITS LTD. (SUCCESSOR TO SHAW WALLACE DISTILLERIES LTD.) HOWEVER, THE LD. CIT(A) TOOK THE VIEW THAT THE APPE AL ALREADY FILED CANNOT BE TAKEN OVER BY ANOTHER ENTITY. AT T HE BEST, A NEW ENTITY CAN FILE A NEW APPEAL SUBJECT TO CONDITION LAID DOW N IN SECTION 249 OF THE ACT. ACCORDINGLY, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THE SAME AS NOT MAINTAINABLE. ITA NO.135/BANG/2020 M/S. UNITED SPIRITS LIMITED, BANGALORE PAGE 3 OF 4 4. THE LD. A.R SUBMITTED THAT THE FACT THAT PRESEN T NAME OF THE ASSESSEE IS M/S. UNITED SPIRITS LTD. WAS MENTIONED IN THE ORIGINAL FORM NO.35 ALSO. FURTHER, A REVISED FORM NO.35 WAS FILED MENTIONING THE NAME CORRECTLY. HENCE, THE LD. A.R. SUBMITTED THAT IT IS NOT A CASE OF SUBSTITUTION OF THE APPEAL BUT IT IS A CASE OF MERE RECTIFICATION OF FORM NO.35 BY MENTIONING THE NAME IN CORRECT ORD ER. ACCORDINGLY, THE LD. A.R. SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE AS NOT MAINTA INABLE. 5. ON THE CONTRARY, LD. D.R. SUBMITTED THAT THE AS SESSEE HAS FILED APPEAL IN THE NAME OF A NON-EXISTENT COMPANY, WHICH IS NOT MAINTAINABLE. ONCE THE APPEAL IS SAID TO BE NOT MA INTAINABLE, ANY SUBSTITUTION BY REVISED FORM NO.35 IS NOT PERMISSIB LE. 6. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. AS NOTICED EARLIER, THERE IS A MISTAKE IN MENTIONING T HE NAME OF THE ASSESSEE IN AN APPROPRIATE ORDER. THE ORIGINAL FORM NO.35 MENTIONING THE NAME OF SHAW WALLACE DISTILLERIES LTD. AND THE FACT OF SUCCESSION BY M/S. UNITED SPIRITS LTD. WAS MENTIONED IN THE BR ACKETS. IN REVISED FORM NO.35, THE PRESENT NAME OF THE ASSESSEE M/S. U NITED SPIRITS LTD. WAS MENTIONED AND FACT THAT ITS SUCCESSOR TO E ARLIER COMPANY M/S. SHAW WALLACE DISTILLERIES LTD. WAS MENTIONED I N THE BRACKET. SO REVISED FORM NO.35 MENTIONS THE NAME OF THE ASSE SSEE CORRECTLY. WE NOTICE THAT THE REVISED FORM NO.35 WAS FILED BEF ORE THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS ITSELF. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD. CIT(A) SHOULD HAVE TAKEN C OGNIZANCE OF THE REVISED FORM NO.35. ACCORDINGLY, WE ARE OF THE VIE W THAT HE WAS NOT JUSTIFIED IN HOLDING THE APPEAL FILED BY THE ASSESS EE AS NOT MAINTAINABLE. ITA NO.135/BANG/2020 M/S. UNITED SPIRITS LIMITED, BANGALORE PAGE 4 OF 4 7. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY L D. CIT(A). SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON ME RITS, WE DEEM IT PROPER TO RESTORE ALL THE ISSUES TO HIS FILE FOR AD JUDICATING THEM AFRESH. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPT, 2021. SD/- (N.V. VASUDEVAN) VICE PRESIDENT SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 30 TH SEPT, 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.