Ekta Retailers Pvt. Ltd.[Now amalgamated with Deepmala Vyapaar Pvt. Ltd.,), Kolkata V. ITO, Ward - 6(1), Kolkata, Kolkata

ITA 1465/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0497 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 19-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R CHOWDHURY
• Assessee Lawyers: M D SHAH LD
• Keywords: Additional evidence; Scheme of amalgamation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM] I.T.A NO. 1465/KOL/20 17 ASSESSMENT YEAR : 2012-1 3 EKTA RETAILERS PVT. LTD. -VS- ITO, WARD- 6(1), KOLKATA . (SINCE AMALGAMATED WITH DEEPMALA (RESPONDENT) VYAPAAR PVT LTD) [PAN: AAACE 5597 M] (APPELLANT) FOR THE APPELLANT : SHRI M. D. SHAH, LD. AR FOR THE RESPONDENT : SHRI R. CHOWDHURY, ADDL . CIT DATE OF HEARING : 10.09.2018 DATE OF PRONOUNCEMENT : 14.09 .2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-23, KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO. 276/CIT(A)- 23/W-5(3)/16-17 DATED 02.05.2017 AGAINST THE ORDER PASSED BY THE ITO, WARD-5(3), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 13.03.2015 FOR THE ASSESSM ENT YEAR 2012-13. 2. THE PRELIMINARY GROUND TO BE DECIDED IN THIS APP EAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE ASSESSMENT FRAMED BY THE LD. AO IN THE NAME OF M/S EKTA RETAILERS PVT. LTD. ON 13.03.2015, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO.1465/KOL/2017 EKTA RETAILERS PVT. LTD. A.YR. 2012-13 2 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSES SEE (M/S EKTA RETAILERS PVT. LTD. ) FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2012-13 ON 25.09.2012 DECLARING TOTAL INCOME OF RS. 21,930/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COMPANY TOGETHER WITH SEVERAL OTHER COMPANIES WAS PROPOSED TO BE AMALGAMATED WITH M/S DEEPMALA VYAPAAR PVT. LTD. AND THE PROCESS OF AMALG AMATION WAS PENDING FOR APPROVAL FROM HONBLE CALCUTTA HIGH COURT. THE SAID APPROVAL WAS GRANTED BY THE HONBLE CALCUTTA HIGH COURT VIDE ITS ORDER DATED 23.12.2015 WITH APPOINTED DATE FROM 01.04.2013. IN OTHER WORDS, THE HONBLE CALCUTTA HI GH COURT APPROVED THE SCHEME OF AMALGAMATION TO BE EFFECTIVE FROM 01.04.2013 VIDE I TS ORDER DATED 23.12.2015. THE ASSESSEE HAD ALSO FILED THE CERTIFIED COPY OF THE S AID ORDER WITH THE REGISTRAR OF COMPANIES, WEST BENGAL ON 28.12.2015 IN THE PRESCRI BED FORM. HENCE THE SCHEME OF MERGER HAVE BECOME COMPLETE ON 28.12.2015. HOWEVER THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT BY THE LD. AO ON 13.03.2015 O N WHICH DATE, THE HONBLE HIGH COURT HAD NOT SANCTIONED THE SCHEME OF AMALGAMATION . IN THE ASSESSMENT, CERTAIN ADDITIONS WERE MADE BY THE LD. AO WHICH WERE ALSO C ONFIRMED BY THE LD. CIT(A). AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS. AT THE OUTSET , WE FIND THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M/S DEEPMALA VYAPAAR PVT. LTD. WITH APPOINTED DATE FROM 01.04.2013. HENCE THE ASSESSMENT SHOULD HAVE BEEN F RAMED ONLY IN THE HANDS OF SUCCESSOR I.E. M/S DEEPMALA VYAPAAR PVT. LTD.. HOWE VER IT IS PERTINENT TO NOTE THAT ON THE DATE OF COMPLETION OF ASSESSMENT PROCEEDINGS ON 13.03.2015, THE HONBLE HIGH COURT HAD NOT SANCTIONED THE SCHEME OF AMALGAMATION . NOW THE SHORT QUESTION TO BE DECIDED IS WHETHER IN THIS SCENARIO, THE ASSESSMENT FRAMED IN THE HANDS OF M/S EKTA RETAILERS PVT. LTD. COULD BE CONSTRUED AS VALID ASS ESSMENT AS PER LAW. THE LD. AR FAIRLY AGREED FOR SETTING ASIDE OF THIS APPEAL TO THE FILE OF LD. AO WITH A DIRECTION TO MAKE AN ASSESSMENT IN THE HANDS OF SUCCESSOR COMPANY. WE AR E CONVINCED WITH THIS ARGUMENT OF 3 ITA NO.1465/KOL/2017 EKTA RETAILERS PVT. LTD. A.YR. 2012-13 3 THE LD. AR AND ACCORDINGLY, IN THE INTEREST OF JUST ICE AND FAIR PLAY, DIRECT THE LD. AO TO FRAME AN ASSESSMENT IN THE HANDS OF SUCCESSOR COMPA NY AFRESH IN ACCORDANCE WITH LAW UNINFLUENCED BY EARLIER DECISION TAKEN BY HIM IN TH E ASSESSMENT. THE ASSESSEE IS AT LIBERTY TO FILE /FURNISH ADDITIONAL EVIDENCES IN SU PPORT OF ITS CONTENTIONS BEFORE THE LD AO. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 14.09.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 14.09.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. EKTA RETAILERS PVT. LTD., C/O D.J. SHAH & CO., K ALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700020. 2. ITO, WARD-6(1), KOLKATA, AAYAKAR BHAWAN, P-7, C HOWRINGHEE SQUARE, KOLKATA-69. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S