Milestone Tradelinks Pvt. Ltd., ( in the matter of Hinduja Exports Pvt.Ltd.), Ahmedabad V. The Income Tax Officer, Ward-4(3), Ahmedabad

ITA 1578/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9225 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HIREN TRIVEDI
• Keywords: Scheme of amalgamation
• Section: 143(3); 142(1); 147; 263; 63

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.1578/AHD/2015 / ASSTT. YEAR: 2006-2007 MILESTONE TRADELINKS P.LTD. [IN THE MATTER OF HINDUJA EXPORTS PVT.LTD., WHICH STANDS AMALGAMATED WITH THE APPELLANT COMPANY] 103, SHAILY HOUSE 3, HARIHAR PARK SOCIETY NR.INCOME TAX UNDER BRIDGE NAVRANGPURA, AHMEDABAD 380 009. PAN : AACCM 9423 C. VS ITO, WARD-4(3) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI HIREN TRIVEDI, AR REVENUE BY : SHRI SANJAY AGRAWAL, CIT-DR / DATE OF HEARING : 07/01/2016 / DATE OF PRONOUNCEMENT: 04 /03/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LD.CIT-2, AHMEDABAD DATED 31.3.2015 PASSED UNDER SE CTION 263 OF THE INCOME TAX ACT, FOR THE ASSTT.YEAR 2006-07. 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED PRINCIPAL CIT ERRED IN ISSUING NOTICE U/S.2 63 AND SUBSEQUENTLY PASSING THE IMPUGNED ORDER U/S.263 IN THE NAME OF 'HINDUJA EXPORTS PVT. LTD.' WHICH IS A NON-EXISTENT COMPANY AND ITA NO.1578/AHD/2015 2 ON THAT GROUND THE AFORESAID NOTICE AND THE ORDER U /S.263 ARE AB INITIO VOID AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED PRINCIPAL CIT ERRED IN ASSUMING HIS JURISDI CTION U/S.263 OF THE I.T. ACT, WHEREAS THE MANDATORY CONDITIONS FOR ASSUMING SUCH JURISDICTION ARE TOTALLY ABSENT, WITH THE RESULT TH AT THE IMPUGNED ORDER PASSED U/S.263 IS BAD IN LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED PRINCIPAL CIT ERRED IN ARRIVING AT A CONCLU SION WITHOUT ANY BASIS WHATSOEVER TO THE EFFECT THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING QFFICER WAS ERRONEOUS AS WELL AS P REJUDICIAL TO THE INTEREST OF THE REVENUE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED PRINCIPAL CIT ERRED IN CANCELLING THE ASSES SMENT ORDER PASSED BY THE ASSESSING OFFICER ON 28.3.2013 U/S.!4 3[3J READ WITH SECTION 147 OF THE I.T. ACT AND FURTHER IN DIR ECTING THE ASSESSING OFFICER TO 'MAKE FRESH ASSESSMENT'. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEF ORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT ORDER PASSED BY THE LD.COMMISSIONER UNDER SECTION 2 63 OF THE INCOME TAX ACT IS AB INITIO VOID , BECAUSE THE SAME HAS BEEN PASSED IN THE NAME OF NON-EXISTING COMPANY, VIZ. HINDUJA EXPORTS PVT. LTD. [HEPL FOR SHORT]. HE SUBMITTED THAT THIS COMPANY HAD AMA LGAMATED WITH THE ASSESSEE-COMPANY VIZ. MILESTONE TRADELINKS PVT. LTD . W.E.F. 1.4.2011 AS APPROVED BY THE HONBLE GUJARAT HIGH COURT VIDE ITS ORDER DATED 3.9.2012 IN COMPANY PETITION NO.117 OF 2012. ON TH E STRENGTH OF HONBLE GUJARAT HIGH COURT ORDER PASSED IN SPA NO.6 05 OF 2013 IN THE CASE OF KHURANA ENGINEERING LTD. AS SUCCESSOR OF M. S.KHURANA VS. DCIT, HE CONTENDED THAT IMPUGNED ORDER OF THE LD.CO MMISSIONER DESERVES TO BE QUASHED. HE FURTHER RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF MARSHALL SONS & CO.(INDIA) LTD. VS. ITO, REPORTED IN 223 ITR 809. IN ORDER TO BUTT RESS HIS CONTENTION ITA NO.1578/AHD/2015 3 THAT THE ORDER WAS PASSED IN THE NAME OF NON-EXISTI NG COMPANY, THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH PAGE NO S.260 TO 296 OF THE PAPER BOOK, WHEREIN COPY OF THE ORDER OF THE HONBL E GUJARAT HIGH COURT PASSED IN COMPANY PETITION NO.117 OF 2012 ALONG WI TH SCHEME OF AMALGAMATION HAS BEEN PLACED ON RECORD. HE FURTHER CONTENDED THAT THIS FACT OF AMALGAMATION WAS BROUGHT TO THE NOTICE OF THE AO VIDE LETTER DATED 23.7.2013. COPY OF THIS LETTER HAS BE EN PLACED ON RECORD. THE AO OF THE ASSESSEE I.E. MILESTONE TRADELINKS PV T. LTD. HAS RECOGNIZED THIS FACT OF AMALGAMATION IN THE ASSESSM ENT ORDER PASSED UNDER SECTION 143(3) IN ASSTT.YEAR 2012-13. THE LD .COUNSEL FOR THE ASSESSEE PLACED ON RECORD COPY OF THE ASSESSMENT OR DER. 4. ON THE OTHER HAND, THE LD.DR ALSO FILED PAPER BO OK CONTAINING 24 PAGES. HE CONTENDED THAT REPLY SUBMITTED ON 26.3.2 015 WAS SIGNED BY AUTHORIZED PERSON OF HEPL. SIMILARLY, POWER OF ATTO RNEY FILED BY SHRI NARAYAN SHAH, ITP HAS BEEN SIGNED BY HEPL, BECAUSE, STAMP OF HEPL ALONG WITH INITIAL OF SOME PERSONS IS AVAILABLE. T HE ADJOURNMENT APPLICATION DATED 6.1.2015 IS AGAIN SIGNED ON BEHAL F OF HEPL. THEREFORE, IT INDICATES THAT PROCEEDING IS TO BE CONTINUED IN THE NAME OF HEPL. ON THE STRENGTH OF ITAT ORDER OF KOLKATA BENCH IN THE CASE OF SUBHLAKSHIMI VANIJAY P. LTD. VS. CIT, 155 ITD 171 , HE CONTENDED THAT IF AN ASSESSEE KEEPS IN DARK THE REVENUE, THEN THIS AMALGAMATION O UGHT TO BE IGNORED. HE DREW OUR ATTENTION TOWARDS PARAGRAPH-3 0.B OF THE ITAT ORDER IN ORDER TO BUTTRESS HIS CONTENTION. HE FURT HER CONTENDED THAT IF THIS BENCH DOES NOT WANT TO CONCUR WITH THE VIEW OF KOLKATA BENCH OF THE ITAT, THE MATTER BE REFERRED TO LARGER BENCH. THE LD.DR FURTHER CONTENDED THAT THOUGH THE ASSESSEE HAS INTIMATED TH E AO, BUT DID NOT GIVE ANY INTIMATION TO THE COMMISSIONER. 5. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. ON PAGE NO.260 TO 296 OF THE PAP ER BOOK, THE ITA NO.1578/AHD/2015 4 ASSESSEE HAS PLACED COPY OF THE HONBLE GUJARAT HIG H COURT ORDER IN COMPANY PETITION NO.117 OF 2012 AND SCHEME OF AMALG AMATION. IN PART-1 OF THE SCHEME THE DEFINITION TO DIFFERENT TE RMS HAS BEEN PROVIDED. AT SR.1(E) THE APPOINTED DATE HAS BEEN P ROVIDED. IT READS AS UNDER: APPOINTED DATE MEANS 1 ST APRIL, 2011 THE EFFECTIVE DATE HAS BEEN EXPLAINED AT SR.1(F) . IT READS AS UNDER: EFFECTIVE DATE MEANS THE LAST OF THE DATES ON WHI CH ALL CONDITIONS, MATTES AND FILINGS REFERRED TO IN CLAUS E 19 HEREOF HAVE BEEN FULFILLED AND ALL NECESSARY ORDERS, APPROVALS AND CONSENTS REFERRED TO THEREIN HAVE BEEN OBTAINED. REFERENCES IN THIS SCHEME TO THE DATE OF COMING INTO EFFECT OF THIS S CHEME OR UPON THE SCHEME BEING EFFECTIVE SHALL MEAN THE EF FECTIVE DATE. 6. THIS SCHEME HAS BEEN APPROVED BY THE HONBLE GUJ ARAT HIGH COURT VIDE ORDER DATED 3.9.2012. THE SCHEME HAS BE EN APPROVED W.E.F. APPOINTED DATE I.E. 1.4.2011. MEANING THEREBY, THE STATUS OF THE COMPANY, HINDUJA EXPORTS PVT. LTD. WAS EXTINGUISHED AND IT MERGED WITH THE ASSESSEE-COMPANY. THE LD.COMMISSIONER HAS ISSUED NOTICE UNDER SECTION 263 ON 24.12.2014. THIS NOTICE WAS I SSUED AFTER MERGER OF HEPL IN THE ASSESSEE-COMPANY. THE NOTICE WAS IS SUED IN THE NAME OF HEPL. IT WAS NOT ISSUED TO MILESTONE TRADELINKS PVT. LTD. THE ASSESSEE HAS COMMUNICATED THE EFFECT OF MERGER BY W AY OF AMALGAMATION TO THE AO VIDE LETTER DATED 23.7.2013 WHICH WAS DULY RECEIVED IN THE OFFICE OF ITO ON 26.7.2013. THE CO PY OF THE LETTER HAS BEEN PRODUCED IN THE PAPER BOOK. IT READS AS UNDER : FROM: HINDUJA EXPORTS PVT LTD. DATE : 23. 07. 2013 ITA NO.1578/AHD/2015 5 PAN : AABCH4708E A-1011, NARNARAYAN COMPLEX, NAVRANGPURA, AHMEDABAD - 380009. [SEAL OF DEPTT] INCOME TAX OFFICER 26 JUL 2013 COMP.WARD-4(3) TO: THE INCOME TAX OFFICER, WARD-4(3), AHMEDABAD. DEAR SIR, SUB : REGARDING FILING OF RETURN OF INCOME FOR A. Y . 201 2-13- REG. REF: NO. ITO/WD. 4(3)/NON FILERS-12-13/13-14 DATED 15.07.2013. WE ARE IN RECEIPT OF YOUR ABOVE MENTIONED LETTER AS KING US TO FILE THE RETURN OF INCOME FOR THE A.Y. 2012-13 BY STATIN G THAT FROM YOUR RECORD IT IS SEEN THAT WE HAVE NOT YET FILED T HE RETURN OF INCOME FOR THE SAID ASSESSMENT YEAR. IN THIS REGARD WE SUBMIT THAT THE COMPANY HAS BEEN AMALGAMATED AS PER THE HO N'BLE GUJARAT HIGH COURT ORDER IN COMPANY PETITION NO. 11 7 OF 2012 AND COMPANY APPLICATION NO. 212 OF 2012 DATED 03.09.201 2 WITH MILESTONE TRADELINK PVT. LTD. (PAN: AACCM9423C)WITH APPOINTED DATE 01.04.2011 RELEVANT TO A.Y. 2012-13. THE COPY OF AMALGAMATION ORDER IS ENCLOSED HEREWITH FOR YOUR PE RUSAL. IN VIEW OF THE ABOVE AS THE COMPANY IS NOT IN EXIST ENCE, YOUR HONOUR IS REQUESTED TO CANCEL/DROP THE ASSESSMENT P ROCEEDING INITIATED BY YOU. THANKING YOU, YOURS FAITHFULLY, FOR, M/SHINDUJA EXPORTS PVT. LTD, SD/- (AUTHORIZED SIGNATORY) ENCL: AS ABOVE. 7. COGNIZANCE OF THIS FACT WAS TAKEN BY THE AO IN T HE ASSESSMENT PROCEEDINGS FOR THE ASSTT.YEAR 2012-13. THE ASSESSE E, MILESTONE TRADELINKS PVT. LTD. HAS FILED ITS RETURN FOR THE A SSTT.YEAR 2012-13 ON 28.8.2012. IT HAS INFORMED THE AO ABOUT THE AMALGA MATION OF HEPL ITA NO.1578/AHD/2015 6 WITH IT VIDE ORDER DATED 3.9.2012 PASSED BY THE HON BLE GUJARAT HIGH COURT. THESE FACTS HAVE BEEN NOTED BY THE AO IN TH E ASSESSMENT ORDER DATED 5.2.2015. THE DISCUSSION MADE BY THE AO QUA THIS FACT READS AS UNDER: THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICA LLY VIDE E-FILING ACKNOWLEDGEMENT NUMBER 500821281280912 ON 28/09/201 2 DECLARING TOTAL INCOME AT RS.NIL/- AFTER SET OFF EA RLIER YEAR LOSS. DURING THE YEAR UNDER CONSIDERATION THE HON'BLE GUJ ARAT HIGH COURT VIDE HIS ORDER DATED 03.09.2012 APPROVED THE SCHEME OF AMALGAMATION OF ADITYA CORPEX PVT. LTD, AMBITIOUS T RADELINKS PVT. LTD, ANAND TRADE-MOVERS (GUJARAT) PVT. LTD, HINDUJA EXPORTS PVT. LTD, MIDEX OVERSEAS LTD, NABH TRADELINK PVT. LTD AN D SURYA RATH TRADELINKS PVT. LTD. WITH MILESTONE TRADELINKS PVT. LTD. FOR IMPLEMENTATION OF THE AMALGAMATION SCHEME AS PER OF THE HON'BLE GUJARAT HIGH COURT THE ASSESSEE FILED ITS R EVISED RETURN OF INCOME ELECTRONICALLY VIDE E-FILING ACKNOWLEDGEMENT NUMBER 793020511270913 ON 27.09.2013 DECLARING TOTAL INCOM E AT RS. 17,46,695/-. THIS CASE WAS SELECTED FOR SCRUTINY. N OTICE U/S 143(2) OF THE I.T. ACT WAS ISSUED ON 06/08/2013 AND SERVED ON 14.08.2013. FURTHER NOTICE U/S.143(2) WAS ISSUED ON 22.07.2014 DUE TO CHANGE OF INCUMBENT AND SERVED THROUGH SPEED POST. A NOTICE U/S 142(1) OF THE I.T. ACT WITH QUESTIONNAIR E WAS ISSUED ON 02.12.2014 AND SERVED TO THE ASSESSEE ON 05.12.2014 . 8. AN IDENTICAL SITUATION HAS COME UP BEFORE THE HO NBLE HIGH COURT IN SPECIAL CIVIL APPLICATION NO.605 OF 2013. IN TH AT CASE, REGISTERED COMPANY IN THE NAME AND STYLE OF M/S.KHURANA INFRAS TRUCTURE AND TOLL ROAD P.LTD. MERGED WITH KHURANA ENGINEERING LTD. UN DER SCHEME OF AMALGAMATION. THE HONBLE HIGH COURT HAS APPROVED THE SCHEME OF AMALGAMATION AND APPOINTED DATE DEFINED IN THE SCHE ME WAS 1.4.2009. THE AO OF ERSTWHILE COMPANY HAD ISSUED NOTICE UNDER SECTION 142(1) FOR THE ASSTT.YEAR 2010-11. TRANSFEREE COMPANY HAS CHA LLENGED THIS NOTICE ON THE GROUND THAT M/S.KHURANA INFRASTRCTURE AND TO LL ROAD PVT. LTD. IS NO MORE IN EXISTENCE, BECAUSE OF ITS AMALGAMATION. THE HONBLE HIGH COURT HAS ACCEPTED THIS AMALGAMATION SCHEME ON 18.3 .2011 PASSED IN COMPANY PETITION NO.161 OF 2010. THE HONBLE GUJAR AT HIGH COURT HAS ALLOWED THE WRIT PETITION AND HELD THAT AFTER THE A MALGAMATION, THE ITA NO.1578/AHD/2015 7 ERSTWHILE COMPANY SEIZED TO EXIST, AND THEREFORE, N O NOTICE UNDER SECTION 142 CAN BE ISSUED UPON THAT. THE HONBLE G UJARAT HIGH COURT HAS RELIED UPON THE DECISION OF HONBLE SUPREME COU RT IN THE CASE OF MARSHALL SONS AND CO. (INDIA LTD.(SUPRA). THE RELE VANT FINDINGS OF THE HONBLE HIGH COURT READ AS UNDER: 5. IT IS THE CASE OF THE PETITIONER THAT BY VIRTUE OF SUCH AMALGAMATION, NOW SINCE THE TRANSFEROR COMPANY NO L ONGER SURVIVES FROM 1.4.09, QUESTION OF ASSESSING SUCH CO MPANY FOR THE PURPOSE OF INCOME TAX WOULD NOT SURVIVE. IT IS ON T HIS GROUND THAT THE NOTICE ISSUED BY THE RESPONDENT CALLING UPON TH E TRANSFEROR COMPANY TO PROVIDE THE DETAILS WITH RESPECT TO THE ASSESSMENT YEAR 2010-11 IS CHALLENGED IN THIS PETITION. 6. HAVING HEARD THE LEARNED COUNSEL FOR THE PARTIES , IT EMERGES FROM THE RECORD THAT THE TRANSFEROR COMPANY HAD MER GED IN TRANSFEREE COMPANY WITH EFFECT FROM 1.4.09. THE HIG H COURT DID NOT PROVIDE FOR ANY MODIFICATION IN THE APPOINTED D ATE AS ENVISAGED IN THE MERGER SCHEME ITSELF. IN THAT VIEW OF THE MATTER, AS HELD BY THE SUPREME COURT IN THE CASE OF MARSHAL L SONS AND CO. (INDIA) LTD V. I.T.O. , 223 ITR 809, THE EFFECT IVE DATE FOR AMALGAMATION WOULD BE THE DATE AS ENVISAGED UNDER T HE SCHEME. THE SUPREME COURT IN THE SAID DECISION OBSERVED AS UNDER: 14. EVERY SCHEME OF AMALGAMATION HAS TO NECESSARIL Y PROVIDE A DATE WITH EFFECT FROM WHICH THE AMALGAMATION/TRANSFER SHALL TAKE PLACE. THE SCHEME CONCERNED HEREIN DOES SO PROVIDE VIZ. JANUARY 1, 19 82. IT IS TRUE THAT WHILE SANCTIONING THE SCHEME IT IS OPEN T O THE COURT TO MODIFY THE SAID DATE AND PRESCRIBE SUCH DA TE OF AMALGAMATION/TRANSFER AS IT THINKS APPROPRIATE IN T HIS FACTS AND CIRCUMSTANCES OF THE CASE. IF THE COURT SO SPEC IFIES A DATE, THERE IS LITTLE DOUBT THAT SUCH DATE WOULD BE THE DATE OF AMALGAMATION/DATE OF TRANSFER. BUT WHERE THE COU RT DOES NOT PRESCRIBE ANY SPECIFIC DATE BUT MERELY SANCTION S THE SCHEME PRESENTED TO IT - AS HAS HAPPENED IN THIS CA SE - IT SHOULD FOLLOW THAT THE DATE OF AMALGAMATION/DATE OF TRANSFER IS THE DATE SPECIFIED IN THE SCHEME AS 'THE TRANSFE R DATE'. IT CANNOT BE OTHERWISE. IT MUST BE REMEMBERED THAT BEF ORE APPLYING TO THE COURT UNDER SECTION 391(1) A SCHEME HAS TO BE FRAMED AND SUCH SCHEME HAS TO CONTAIN A DATE OF AMALGAMATION/TRANSFER. THE PROCEEDINGS BEFORE THE C OURT MAY TAKE SOMETIME; INDEED, THEY ARE BOUND TO TAKE S OME ITA NO.1578/AHD/2015 8 TIME BECAUSE SEVERAL STEPS PROVIDED BY SECTIONS 391 TO 394-A AND THE RELEVANT RULES HAVE TO BE FOLLOWED AN D COMPLIED WITH. DURING THE PERIOD THE PROCEEDINGS AR E PENDING BEFORE THE COURT, BOTH THE AMALGAMATING UNI TS, I.E., THE TRANSFEROR COMPANY AND THE TRANSFEREE COMPANY M AY CARRY ON BUSINESS, AS HAS HAPPENED IN THIS CASE BUT NORMALLY PROVISION IS MADE FOR THIS ASPECT ALSO IN THE SCHEME OF AMALGAMATION. IN THE SCHEME BEFORE US, CL AUSE 6(B) DOES EXPRESSLY PROVIDE THAT WITH EFFECT FROM T HE TRANSFER DATE, THE TRANSFEROR COMPANY (SUBSIDIARY COMPANY) SHALL BE DEEMED TO HAVE CARRIED ON THE BUS INESS FOR AND ON BEHALF OF THE TRANSFEREE COMPANY (HOLDIN G COMPANY) WITH ALL ATTENDANT CONSEQUENCES. IT IS EQU ALLY RELEVANT TO NOTICE THAT THE COURTS HAVE NOT ONLY SA NCTIONED THE SCHEME IN THIS CASE BUT HAVE ALSO NOT SPECIFIED ANY OTHER DATE AS THE DATE OF TRANSFER/AMALGAMATION. IN SUCH A SITUATION, IT WOULD NOT BE REASONABLE TO SAY THAT T HE SCHEME OF AMALGAMATION TAKES EFFECT ON AND FROM THE DATE O F THE ORDER SANCTIONING THE SCHEME. WE ARE, THEREFORE, OF THE OPINION THAT THE NOTICES ISSUED BY THE INCOME-TAX O FFICER (IMPUGNED IN THE WRIT PETITION) WERE NOT WARRANTED IN LAW. THE BUSINESS CARRIED ON BY THE TRANSFEROR COMPANY (SUBSIDIARY COMPANY) SHOULD BE DEEMED TO HAVE BEEN CARRIED ON FOR AND ON BEHALF OF THE TRANSFEREE COMP ANY. THIS IS THE NECESSARY AND THE LOGICAL CONSEQUENCE O F THE COURT SANCTIONING THE SCHEME OF AMALGAMATION AS PRESENTED TO IT. THE ORDER OF THE COURT, SANCTIONIN G THE SCHEME, THE FILING OF THE CERTIFIED COPIES OF THE O RDERS OF THE COURT BEFORE THE REGISTRAR OF COMPANIES, THE ALLOTM ENT OF SHARES ETC. MAY HAVE ALL TAKEN PLACE SUBSEQUENT TO THE DATE OF AMALGAMATION/TRANSFER, YET THE DATE OF AMALGAMAT ION IN THE CIRCUMSTANCES OF THIS CASE WOULD BE JANUARY 1, 1982 . THIS IS ALSO THE RATIO OF THE DECISION OF THE PRIVY COUNCIL IN RAGHUBAR DAYAL, V. BANK OF UPPER INDIA LTD., AIR 19 19 PC 9. COUNSEL FOR THE REVENUE CONTENDED THAT IF THE AFORE SAID VIEW IS ADOPTED THEN SEVERAL COMPLICATIONS WILL ENS UE IN CASE THE COURT REFUSES TO SANCTION THE SCHEME OF AMALGAMATION. WE DO NOT SEE ANY BASIS FOR THIS APPREHENSION. FIRSTLY, AN ASSESSMENT CAN ALWAYS BE MADE AND IS SUPPOSED TO BE MADE ON THE TRANSFEREE COMPAN Y TAKING INTO ACCOUNT THE INCOME OF BOTH THE TRANSFER OR AND TRANSFEREE COMPANY. SECONDLY, AND PROBABLY THE MORE ADVISABLE COURSE FROM THE POINT OF VIEW OF THE REVE NUE WOULD BE TO MAKE ONE ASSESSMENT ON THE TRANSFEREE ITA NO.1578/AHD/2015 9 COMPANY TAKING INTO ACCOUNT THE INCOME OF BOTH OF TRANSFEROR OR TRANSFEREE COMPANIES AND ALSO TO MAKE SEPARATE PROTECTIVE ASSESSMENTS ON BOTH THE TRANSFE ROR AND TRANSFEREE COMPANIES SEPARATELY. THERE MAY BE A CER TAIN PRACTICAL DIFFICULTY IN ADOPTING THIS COURSE INASMU CH AS SEPARATE BALANCESHEETS MAY NOT BE AVAILABLE FOR THE TRANSFEROR AND TRANSFEREE COMPANIES. BUT THAT MAY N OT BE AN INSUPERABLE PROBLEM INASMUCH AS ASSESSMENT CAN A LWAYS BE MADE, ON THE AVAILABLE MATERIAL, EVEN WITHOUT A BALANCE- SHEET. IN CERTAIN CASES, BEST-JUDGMENT ASSESSMENT M AY ALSO BE RESORTED TO. BE THAT AS IT MAY, WE NEED NOT PURSUE THIS LINE OF ENQUIRY BECAUSE IT DOES NOT ARISE FOR CONSIDERATION IN THESE CASES DIRECTLY. IN VIEW OF THE ABOVE CONCLUDED POSITION OF LAW, WE HAVE NO HESITATION IN HOLDING THAT THE TRANSFEROR COMPANY W OULD NO LONGER BE AMENABLE TO ASSESSMENT PROCEEDINGS FOR THE ASSES SMENT YEAR 2010-11. THE NOTICE FOR PRODUCING DOCUMENTS FOR SUC H ASSESSMENT WOULD, THEREFORE, BE INVALID. REFERENCE OF THE REVENUE TO CLAUSE 6 OF THE SCHEME IS WHOLLY MISPLAC ED. CLAUSE 6 REFERS TO TWO DATES, NAMELY, APPOINTED DATE AND THE EFFECTIVE DATE. IT ONLY CLARIFIES THAT THE SCHEME SHALL BE OP ERATIVE FROM THE APPOINTED DATE, BUT SHALL BECOME EFFECTIVE FROM THE EFFECTIVE DATE. THIS, IN OUR OPINION, DOES NOT ALTER THE POSI TION OF LAW. THE TERM APPOINTED DATE AS DEFINED IN CLAUSE 1(II) IT SELF ENVISAGES 1ST APRIL 2009 AS THE APPOINTED DATE UNLESS, OF COURSE, ANY OTHER DATE AS MAY BE APPROVED BY THE HIGH COURT. IN THE PRESEN T CASE, THE HIGH COURT MADE NO CHANGE IN THIS RESPECT. THE APPO INTED DATE FOR THE SAID SCHEME, THEREFORE, MUST BE HELD TO BE 1.4.2009. IN THE RESULT, THE PETITION IS ALLOWED. THE IMPUGNE D NOTICE ANNEXURE A IS QUASHED. RULE IS MADE ABSOLUTE ACCORD INGLY. 9. THE LD.CIT-DR, ON THE STRENGTH OF ITATS DECISIO N IN THE CASE OF SUBHLAKSHMI VANIJYA P.LTD. (SUPRA) HAS CONTENDED TH AT IF THE ASSESSEE KEEP THE DEPARTMENT IN DARK AND NOT INFORMED ABOUT SUCH AMALGAMATION, THEN THE ASSESSEE CANNOT BE ALLOWED T O DERIVE BENEFIT FROM ITS OWN FRAUDULENT PRACTICE. HE DREW OUR ATTE NTION TO PAGES NO.30 OF THE JUDGMENT. THIS PARAGRAPH READ AS UNDER: 30.B. WE DO NOT DISPUTE THE GENERAL PROPOSITION THA T ONCE A COMPANY GETS AMALGAMATED WITH ANOTHER, IT LOSES ITS ORIGINAL ITA NO.1578/AHD/2015 10 IDENTITY AND NO PROCEEDINGS CAN BE TAKEN IN ITS EAR LIER NAME. SUCH PROCEEDINGS HAVE TO CONTINUE IN THE NAME OF THE AMA LGAMATED COMPANY AND ORDER CAN ALSO BE PASSED IN THE NEW NAM E. HOWEVER, THIS GENERAL POSITION CAN HAVE NO APPLICAT ION, WHERE THE REVENUE IS KEPT IN DARK AND IS NOT INFORMED ABOUT S UCH AMALGAMATION. THE POSITION BECOMES MORE CRITICAL WH ERE, EVEN AFTER SUCH AMALGAMATION, THE AMALGAMATING COMPANY L AUNCHES PROCEEDINGS IN ITS OLD NAME. IN SUCH CIRCUMSTANCES, IT CANNOT BE ALLOWED ON TURN AROUND LATER AND CLAIM THAT THOUGH IT WRONGLY INITIATED THE PROCEEDINGS IN WRONG NAME, BUT THE CO URT SHOULD HAVE TAKEN COGNIZANCE OF THE REALITY OF AMALGAMATIO N. NO ASSESSEE CAN BE ALLOWED TO DRIVE BENEFIT FROM ITS O WN FRAUDULENT PRACTICE. 30.C. IT IS OBSERVED IN THE INSTANT CASE DESPITE IT S AMALGAMATION, THE ASSESSEE CHOSE TO FILE ITS RETURN OF INCOME AFT ER THE DATE OF AMALGAMATION, IN ITS EARLIER NAME AND THAT IS HOW T HE ASSESSMENT GOT COMPLETED U/S 147 IN THE SAME NAME. IT IS OBVIO US THAT IN SUCH CIRCUMSTANCES, THE ASSESSEE CANNOT BE ALLOWED TO TAKE ADVANTAGE OF ITS OWN MANIPULATION. IT IS FURTHER IN TERESTING TO NOTE THAT THE ASSESSEE ALSO ALLOWED THE PROCEEDINGS U/S 147 TO COMPLETE IN ITS EARLIER NAME, BUT-IS NOW SEEKING TO OBJECT TO THE ORDER OF THE ID. CIT ON THIS ASPECT OF THE MATTER. LAW DOES NOT PERMIT A PERSON TO BOTH APPROBATE AND REPROBATE. TH IS CONTENTION IS THEREFORE, REJECTED. 10. ON THE STRENGTH OF THESE PARAGRAPHS AND ON THE STRENGTH OF ADJOURNMENT APPLICATION, POWER OF ATTORNEY ALLEGED TO HAVE BEEN SIGNED BY THE HEPL, HE CONTENDED THAT THE ASSESSEE DID NOT INFORM THE COMMISSIONER ABOUT THE FACTUM OF AMALGAMATION, AND THEREFORE, AT THIS STAGE, IT CANNOT BE PERMITTED TO RAISE THIS PLEA. 11. ON DUE CONSIDERATION OF ALL THESE ARGUMENTS, WE ARE OF THE VIEW THAT IN THE INCOME TAX ACT, THERE IS NO PROVISION T O COMMUNICATE THIS FACT TO THE COMMISSIONER. THE ASSESSEE HAS ALREADY INFORMED THE AO. WE HAVE EXTRACTED THE COPY OF THE LETTER WRITTEN BY THE ASSESSEE. WE HAVE ALSO MADE REFERENCE OF THE ASSESSMENT ORDER VI DE WHICH THE AO HAS TAKEN COGNIZANCE OF THIS FACT WHILE HE ISSUED N OTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT. IN THE ORDER OF THE ITAT, KOLKATA BENCH ITSELF HAS OBSERVED THAT LEGALLY WHEN A COMPANY AMA LGAMATES WITH ITA NO.1578/AHD/2015 11 ANOTHER, IT LOSES ITS IDENTITY AND NO PROCEEDINGS C AN BE TAKEN IN ITS EARLIER NAME. THE BENCH HAD TAKEN A DIFFERENT VIEW ON ACCOUNT OF NOTORIOUS FACTS AVAILABLE IN THAT CASE. NO SUCH CIR CUMSTANCES ARE BEFORE US. APART FROM ABOVE, WE ARE OF THE VIEW THAT EVEN IF THE ASSESSEE GAVE CONSENT FOR TAKING UP THE PROCEEDINGS UNDER SECTION 263 AGAINST IT, THAT WOULD NOT INFUSE JURISDICTION IN THE LD.COMMISSIONE R. IN OTHER WORDS, THIS ADJOURNMENT APPLICATION, REPLY TO SHOW CAUSE N OTICE WOULD NOT INFUSE JURISDICTION TO LD.COMMISSIONER. JURISDICTI ON SHOULD BE BY VIRTUE OF OPERATION OF THE ACT AND NOT BY THE CONSENT OF A N ASSESSEE. A PERUSAL OF SECTION 263 WOULD INDICATE THAT BEFORE T AKING ANY ACTION UNDER SECTION 263, THE LD.COMMISSIONER HAS TO PURSU E RECORD AND RECORD WOULD INCLUDE THE COMMUNICATION MADE BY THE ASSESSEE TO THE AO ON 23.7.2013 INTIMATING ABOUT THE FACT OF AMALGA MATION. THEREFORE, WE ARE OF THE VIEW THAT THE ISSUE IN DISPUTE IS SQU ARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE G UJARAT HIGH COURT IN THE CASE OF KHURANA ENGINEERING LTD. (SUPRA). SINC E WE HAVE ARRIVED AT A CONCLUSION THAT INITIATION OF PROCEEDINGS AGAINST HEPL IS VOID AB INITO , THEREFORE, WE DO NOT DEEM IT NECESSARY TO ADJUDICAT E ON OTHER ISSUES ON MERIT. NO PROCEEDINGS UNDER SECTION 263 CAN BE TAK EN UP AGAINST HEPL AFTER ITS AMALGAMATION WITH MILESTONE TRADELINKS PV T. LTD. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE AND QUASH THE O RDER PASSED BY THE LD.COMMISSIONER UNDER SECTION 263 OF THE INCOME TAX ACT. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON 4 TH MARCH, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/03/2016