Splendid Enterprises Pvt. Ltd., New Delhi V. Pr. CIT, New Delhi

ITA 1770/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0749 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Principle of natural justice; Scheme of amalgamation
• Section: 143(3); 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E , NEW DELHI BEFORE SMT. DIVA SINGH , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO .1770 /DE L/ 2016 ASSESSMENT YEAR: 2012 - 13 SPLENDID ENTERPRISES PVT. LTD. (IN THE MATTER OF GANGANEET PAPER AND PLASTICS PVT. LTD.), B - 176, MIG DDA FLATS, EAST OF LONI ROAD, NEW DELHI VS. PR. CIT, DELHI - 4, NEW DELHI PAN : AARCS2541L (APPELLANT) (RESPONDENT) ORDER PER DIVA SINGH, J.M. : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 14.03.2016 OF PRINCIPAL COMMISSIONER OF INCOME TAX, DELHI - 4, NEW DELHI, PERTAINING TO ASSESSMENT YEAR 2012 - 13. 2. BOTH THE PARTIES WERE HEARD IN RESPECT OF GROUND NO. 4 RAISED BY THE ASSESSEE IN THE PRESENT APPEAL, THE SAME READS AS UNDER: 4. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW, THE REVISIONARY ORDER PASSED U/S 263 OF THE INCOME TAX ACT, 1961 IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND THE SAME HAS BEEN PASSED WITHOUT AFFORDING REASONABLE AND ADEQUATE OPPORTUNITY OF BE ING HEARD AND WITHOUT ISSUING PROPER SHOW CAUSE NOTICE TO THE APPELLANT COMPANY. ASSESSEE BY SH. B.K. DHINGRA , CA DEPARTMENT BY SH. S.R. SENAPATI, SR.DR DATE OF HEARING 21.08.2018 DATE OF PRONOUNCEMENT 12.09.2018 2 ITA NO.1770/DEL/2016 3. LEARNED AR , INVITING OUR ATTENTION TO THE IMPUGNED ORDER , SUBMITTED THAT THE ORDER PASSED BY THE PR. CIT IS EX PARTE. ADDRESSING THE ASSESSMENT ORDER IT WAS SUBMITTED THAT THE ASSESSMENT ORDER , WHICH IS SOUGHT TO BE REVISED , IS AN ORDER IN THE CASE OF THE ASSESSEE WHICH DOES NOT EXIST ON THAT DATE. ACCORDINGLY, IT WAS SUBMITTED THAT A REVISIONARY ORDER AGAINST A NONEST O RDER CANNOT STAND IN THE EYES OF LAW. INVITING ATTENTION TO PAPER BOOK FILED , IT WAS HIS SUBMISSION THAT THE ASSESSEE COMPANY HAD AMALGAMATED WITH M/S. SPLENDID ENTERPRISES PVT. LTD. VIDE ORDER DATED 14 TH AUGUST, 2013 UNDER SECTION 391 TO 394 OF THE COMPAN IES ACT BY THE ORDER OF THE HON BLE HIGH C OURT. THE SAID FACT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BY LETTER DATED 21.05.2014, COPY OF WHICH IS AVAILABLE AT PAPER BOOK PAGES 27 AND 28. INVITING ATTENTION TO THE ASSESSMENT ORDER DATED 27 TH JUN E, 2014, IT WAS HIS SUBMISSION THAT THE ASSESSING OFFICER HAS FAILED TO TAKE NOTE OF THE SAID FACT. THE LEARNED AR WAS REQUIRED TO ADDRESS WHETHER THIS FACT HAS BEEN BROUGHT TO THE NOTICE OF THE PR. CIT, DELHI - 4, NEW DELHI OR NOT . LEARNED AR SUBMITTED THAT THE ORDER IS PASSED EX PARTE AS THE ASSESSEE NEVER RECEIVED ANY NOTICES. HOWEVER, IT WAS HIS SUBMISSION THAT S INCE ONE OF THE DISCREPANCIES POINTED OUT BY PR. CIT MAKES A REFERENCE TO LEGAL AND PROFESSIONAL CHARGES PERTAINING TO DRAFTING OF AMALGAMATION AND MERGER OF RS.25 LAKHS, THE SAID FACT MAY HAVE BEEN NOTICED BY HIM, HOWEVER, T HE ASSESSEE HAS SUBMITTED THAT IT WAS NOT CORRECTLY BROUGHT ON RECORD. 4. THE LEARNED SR. DR, ON A PERUSAL OF THE RECORD, SUBMITTED THAT HE WOULD HAVE NO OBJECTION IF THE OR DER IS REMANDED AND IS PASSED AFTER HEARING THE ASSESSEE; HOWEVER, WHETHER THE SAID LETTER STATED TO BE MADE TO THE ASSESSING OFFICER ON 21.05.2014 , WAS AVAILABLE ON RECORD, CANNOT BE ADDRESSED WITHOUT HAVING A LOOK AT THE ASSESSING OFFICER S FOLDER. ACCOR DINGLY, A REMAND WAS REQUESTED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS NOTICED THAT THE ASSESSEE SPLENDID ENTERPRISES PVT. LTD., NEW DELHI, FILED RETURN OF INCOME ON 16.08.201 2 IN THE NAME OF M/S. GAGANEET PAPER & PLASTICS PVT. LTD. AND NOTICES AND QUESTIONNAIRES ETC. WERE ISSUED IN 3 ITA NO.1770/DEL/2016 TERMS OF SECTION 143(1) AND 143(2) OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) . THE ASSESSEE WAS REPRESENTED BY SH. PREMPAL SHARMA, CA. CERTAIN ADDITIONS WERE MADE TO THE INCOME O F THE ASSESSEE BY THE ASSESSMENT ORDER DATED 27.06.2014 CONCLUDED UNDER SECTION 143(3) OF THE ACT . WHETHER THE ADDITIONS MADE WERE CHALLENGED IN APPEAL; OR ANY APPLICATION UNDER SECTION 154 OF THE ACT WAS FILED BEFORE THE ASSESSING OFFICER FOR BRINGING THE CORRECT NAME OF THE ASSESSEE ON RECORD, ARE FACTS NOT AVAILABLE ON RECORD, NOR ANY ARGUMENTS ON THESE FACTS HAVE BEEN ADDRESSED BY THE LEARNED AR. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE NOTIC ES APPARENTLY WERE SENT AND THE ASSESSEE REMAINED UNREPRESENTED IN TERMS OF THE SUBMISSION MA DE BEFORE THE ASSESSING OFFICER. T HE FACT THAT M/S. GAGANEET PAPER & PLASTICS LTD. ( HEREINAFTER COMPANY 2 ) GOT AMALGAMATED WITH SPLENDID ENTERPRISES PVT. LTD. AS P ER THE SCHEME APPROVED BY THE HON BLE HIGH COURT BY ORDER DATED 14 TH AUGUST, 2014 PASSED UNDER SECTION 391 TO 394 OF THE COMPANIES ACT AS PER PAPER BOOK, PAGE NO S . 29 TO 47 SHOWS THAT THE SCHEME OF AMALGAMATION WAS AGREED AND SANCTIONED W.E.F. 1 ST APRIL, 2 012. THE SAID FACT AS PER THE SUBMISSION OF THE LEARNED AR HAS BEEN BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER ON 21.05.2014 . WE NOTE THAT THERE IS NO REFERENCE TO THIS FACT IN THE ORDER DATED 27 TH JUNE, 2014. ACCORDINGLY, CONSIDERING THE LIMITED PRAYE R OF THE PARTIES BEFORE US, WHEREIN THE LEARNED AR WAS REQUIRED TO FILE A SEQUENCE OF EVENTS AND DEMONSTRATE ITS CLAIM, WHO INSTEAD MADE A PRAYER TO ARGUE GROUND NO. 4 AND IN THE SAID GROUND MADE A PRAYER THAT THE MATTER MAY BE REMANDED BACK TO THE PR. CIT TO PASS AN ORDER IN ACCORDANCE WITH LAW AN D THE FACTS IN THE PRESENT CASE, WHERE HE HAS SUBMITTED THAT SINCE THE ASSESSMENT ORDER IS PASSED AGAINST A NONEST COMPANY, ACCORDINGLY THE IMPUGNED ORDER CANNOT STAND , WHICH FACT IS AVAILABLE ON RECORD, THE SAME MAY BE CONSIDERED BY THE PR. CIT . ACCORDINGLY, IN TERMS OF THE PRAYER OF THE PARTIES THE APPEAL IS REMANDED BACK TO THE FILE OF PR. CIT WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE A REASON ABLE OPPORTUNITY OF BEING HEARD A DDRESSING THE CORRECT FACT S ON RECORD . F OR THE PURPOSES OF NOTICE ETC. W E NOTICE THAT THE ADDRESS OF THE ASSESSEE SPLENDID ENTERPRISES AND THE AMALGAMATED COMPANY M/S. GAGANEET PAPER & 4 ITA NO.1770/DEL/2016 PLASTICS PVT. LTD. CONTINUES TO REMAIN THE SAME. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUN CED IN THE OPEN COURT ON 12 TH SEPT. , 201 8 . SD/ - SD/ - ( O.P. KANT ) ( DIVA SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH S EPTEMBER , 201 8 . RK / - COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI