ITO, Ward - 4(3), Kolkata, Kolkata V. Aravali Polymers Pvt. Ltd., Kolkata

ITA 2242/KOL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100252 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-05-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHESHYAM
• Assessee Lawyers: A K; R N BAJORIA
• Keywords: Procedural lapse

Judgement Text

I.T.A. NO. 2242/KOL./2010 ASSESSMENT YEAR: 2001-2002 & C.O. NO. 10/KOL/2011 (IN ITA NO. 2242/KOL/2010) ASSESSMENT YEAR: 2001-2002 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2242/KOL/ 2010 ASSESSMENT YEAR : 2001-2002 INCOME TAX OFFICER,................................ ............................APPELLANT WARD-4(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA-700 069 -VS.- ARAVALI POLYMERS PVT. LIMITED,..................... ...................RESPONDENT 4, MANGOE LANE, KOLKATA-700 001 [PAN : AAACA 2510 L] & C.O. NO. 10/KOL/2011 (ARSING OUT OF I.T.A. NO. 2242/KOL/ 2010) ASSESSMENT YEAR : 2001-2002 ARAVALI POLYMERS PVT. LIMITED,..............,...... ...................CROSS OBJECTOR 4, MANGOE LANE, KOLKATA-700 001 [PAN : AAACA 2510 L] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-4(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA-700 069 APPEARANCES BY: SHRI RADHESHYAM, CIT, FOR THE DEPARTMENT SHRI R.N. BAJORIA, SR. ADVOCATE AND SHRI A.K. GUPTA , FCA , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : DECEMBER 08, 2015 DATE OF PRONOUNCING THE ORDER : DECEMBER 11, 2015 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, KOLKATA DA TED 13.09.2010 FOR I.T.A. NO. 2242/KOL./2010 ASSESSMENT YEAR: 2001-2002 & C.O. NO. 10/KOL/2011 (IN ITA NO. 2242/KOL/2010) ASSESSMENT YEAR: 2001-2002 PAGE 2 OF 5 THE ASSESSMENT YEAR 2001-02 AND THE SAME IS BEING D ISPOSED OF ALONG WITH CROSS OBJECTION FILED BY THE ASSESSEE BEING C. O. NO. 10/KOL/2011. 2. AT THE OUTSET, IT IS OBSERVED THAT THE ASSESSEE IN THE CROSS OBJECTION HAS RAISED VARIOUS LEGAL ISSUES INCLUDING THE ISSUE RELATING TO THE MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE PRE SENT APPEAL IS FILED BY THE REVENUE, WITH RESPONDENT BEING ARAVALI POLYMERS PVT. LIMITED. HE HAS INVITED OUR ATTENTION TO THE COPY OF REGISTRATION C ERTIFICATE ISSUED BY THE REGISTRAR TO SHOW THAT THE COMPANY NAMELY M/S. ARAV ALI POLYMERS PVT. LIMITED HAS BEEN CONVERTED TO LLP NAMELY M/S. ARAVA LI POLYMERS LLP ON 13.08.2010 ITSELF. HE HAS ALSO INVITED OUR ATTENTIO N TO THE COPY OF LETTER DATED 13.10.2010 FILED WITH THE ASSESSING OFFICER, I.E. THE INCOME TAX OFFICER, WARD-4(3), KOLKATA GIVING INTIMATION OF TH E SAID CONVERSION. HE HAS ALSO POINTED OUT FROM THE COPY OF ORDER DATED 1 8.11.2010 PASSED BY THE CONCERNED COMMISSIONER, I.E. COMMISSIONER OF IN COME TAX, KOLKATA-II, KOLKATA UNDER SECTION 127(2) OF THE ACT THAT THE CA SE OF THE ASSESSEE WAS TRANSFERRED FROM THE CHARGE OF THE ITO, WARD-4(3), KOLKATA TO ITO, WARD- 42(3), KOLKATA WITH A COPY OF THE SAID ORDER MARKED TO ITO, WARD-4(3), KOLKATA WITH THE REQUEST TO IMMEDIATELY TRANSFER AL L THE RECORDS OF THE CASE TO THE ITO, WARD-42(3), KOLKATA. HE HAS CONTEN DED THAT THE ITO, WARD-4(3), KOLKATA THUS WAS FULLY AWARE OF THE CONV ERSION OF M/S. ARAVALI POLYMERS PVT. LTD. TO M/S. ARAVALI POLYMERS LLP ON 13.08.2010 AS WELL AS THE TRANSFER OF THE CASE FROM HIS JURISDICTION TO T HE JURISDICTION OF ITO, WARD-42(3), KOLKATA, WHEN THE PRESENT APPEAL WAS FI LED BY HIM ON 22.12.2010 WITH M/S. ARAVALI POLYMERS PVT. LTD. AS RESPONDENT AND THIS POSITION CLEARLY EVIDENT FROM THE RELEVANT DOCUMENT ARY EVIDENCE FILED BY THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN DISPU TED EVEN BY THE LD. D.R. 3. IT IS OBSERVED THAT SECTION 58 OF THE LIMITED LI ABILITY PARTNERSHIP ACT, 2008 DEALS WITH REGISTRATION OF LLP AND EFFECT OF CONVERSION OF A FIRM, I.T.A. NO. 2242/KOL./2010 ASSESSMENT YEAR: 2001-2002 & C.O. NO. 10/KOL/2011 (IN ITA NO. 2242/KOL/2010) ASSESSMENT YEAR: 2001-2002 PAGE 3 OF 5 PRIVATE LIMITED COMPANY OR AN UNLISTED PUBLIC LIMIT ED COMPANY TO LLP AND AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSES SEE, CLAUSE (C) OF SUB- SECTION 4 OF THE SAID SECTION SPECIFICALLY PROVIDES THAT THE FIRM OR THE COMPANY, AS THE CASE MAY BE, ON AND FROM THE DATE O F REGISTRATION SPECIFIED IN THE CERTIFICATE OF REGISTRATION, SHALL BE DEEMED TO BE DISSOLVED AND REMOVED FROM THE RECORDS OF THE REGIS TRAR OF FIRMS OR REGISTRAR OF COMPANIES AS THE CASE MAY BE. THE COMP ANY, NAMELY M/S. ARAVALI POLYMERS PVT. LIMITED THUS WAS REMOVED FROM THE RECORDS OF THE REGISTRAR OF COMPANIES ON 13.08.2010, I.E. THE DATE OF WHICH IT WAS CONVERTED AND REGISTERED AS LLP AS PER THE CERTIFIC ATE OF REGISTRATION ISSUED BY THE REGISTRAR AND THE SAME WAS NOT IN EXI STENCE WHEN THE PRESENT APPEAL WAS FILED BY THE REVENUE ON 22.12.20 10. 4. IN THE CASE OF CIT VS.- INTEL TECHNOLOGY INDIA (P) LIMITED REPORTED IN 232 TAXMAN 279 CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE- COMPANY WAS AMALGAMATED/MERGED WITH ANOTHER COMPANY W.E.F. 01.04.2004 AND THE ASSESSMENT ORDER PASSED BY THE A SSESSING OFFICER ON 27.03.2006 ON THE ASSESSEE-COMPANY AFTER BEING INTI MATED ABOUT ITS MERGER /AMALGAMATION WAS HELD TO BE WITHOUT JURISDI CTION AND NULL AND VOID BY THE HONBLE KARNATAKA HIGH COURT. IT WAS AL SO HELD BY THE HONBLE KARNATAKA HIGH COURT THAT THE PROVISION OF SECTION 292B OF THE ACT COULD NOT MAKE SUCH ASSESSMENT VALID AS THE DEFECT/OMISSI ON TO INCORPORATE THE NAME OF SUCCESSOR-COMPANY IN ASSESSMENT ORDER WAS N OT A PROCEDURAL IRREGULARITY, BUT IT WENT TO THE ROOT OF THE MATTER . TO THE SIMILAR EFFECT IS THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS.- DIMENSION APPARELS P. LIMITED REPORTED IN 370 ITR 2 88 CITED BY THE LD. COUNSEL FOR THE ASSESSEE, WHEREIN IT WAS HELD THAT THE AMALGAMATING COMPANY, AS A RESULT OF AMALGAMATION, HAD CEASED TO EXIST AND THE ORDER OF ASSESSMENT PASSED BY THE ASSESSING OFFICER ON AM ALGAMATING COMPANY AFTER THE DATE OF AMALGAMATION WAS NOT VALID IN THE EYES OF LAW. IN THE CASE OF I.K. AGENCIES P. LIMITED VS.- CIT REPORTED IN 347 ITR 664(CAL.), I.T.A. NO. 2242/KOL./2010 ASSESSMENT YEAR: 2001-2002 & C.O. NO. 10/KOL/2011 (IN ITA NO. 2242/KOL/2010) ASSESSMENT YEAR: 2001-2002 PAGE 4 OF 5 A.P., A COMPANY, WAS AMALGAMATED WITH THE ASSESSEE- COMPANY W.E.F. 01.04.1995 BY VIRTUE OF THE ORDER OF THE COMPANY CO URT AND AS A RESULT, THE ASSESSEE-COMPANY HAD TAKEN OVER ALL THE ASSETS AND LIABILITIES OF A.P. ON THE RELEVANT DATE OF VALUATION FOR THE ASSESSMEN T YEAR, AP WAS THE OWNER OF CERTAIN ASSETS, BUT NO WEALTH-TAX RETURN W AS FILED BY IT. THE ASSESSING OFFICER, THEREFORE, ISSUED A NOTICE UNDER SECTION 17 OF THE ACT ON 20.01.1997 TO AP DIRECTING IT TO FILE ITS WEALTH -TAX RETURN FOR THE RELEVANT PERIOD WHEN IT WAS NO MORE IN EXISTENCE. T HE REASSESSMENT MADE BY THE ASSESSING OFFICER IN PURSUANCE OF THE SAID N OTICE WAS UPHELD BY THE LD. COMMISSIONER (APPEALS) AS WELL AS BY THE TRIBUN AL, BUT THE HONBLE CALCUTTA HIGH COURT QUASHED THE REASSESSMENT PROCEE DINGS AND ALLOWED THE APPEAL OF THE ASSESSEE-COMPANY HOLDING THAT THE INITIATION OF PROCEEDINGS FOR THE ASSESSMENT ITSELF WAS VITIATED FOR GIVING NOTICE TO AP, WHICH WAS NOT IN EXISTENCE AT THE RELEVANT TIME AND NOT GIVING NOTICE TO THE ASSESSEE-COMPANY. 5. KEEPING IN VIEW THE LEGAL POSITION EMANATING FRO M THE VARIOUS JUDICIAL PRONOUNCEMENTS DISCUSSED ABOVE AND HAVING REGARD TO THE RELEVANT FACTS OF THE CASE, AS NARRATED ABOVE, WE H OLD THAT THE PRESENT APPEAL FILED BY THE REVENUE IN THE NAME OF M/S. ARA VALI POLYMERS PVT. LIMITED AS A RESPONDENT, WHICH WAS NOT IN EXISTENCE ON THE DATE OF FILING OF THE SAID APPEAL, IS NOT MAINTAINABLE. WE ACCORDI NGLY ALLOW THE CROSS OBJECTION FILED BY THE ASSESSEE AND DISMISS THE APP EAL FILED BY THE REVENUE AT THRESHOLD BEING NOT MAINTAINABLE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED, WHILE THE C.O. OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 11, 2015. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 11 TH DAY OF DECEMBER, 2015 I.T.A. NO. 2242/KOL./2010 ASSESSMENT YEAR: 2001-2002 & C.O. NO. 10/KOL/2011 (IN ITA NO. 2242/KOL/2010) ASSESSMENT YEAR: 2001-2002 PAGE 5 OF 5 COPIES TO : (1) INCOME TAX OFFICER, WARD-4(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 8 TH FLOOR, KOLKATA-700 069 (2) ARAVALI POLYMERS PVT. LIMITED, 4, MANGOE LANE, KOLKATA-700 001 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOLKA TA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.