Asstt. Comm. Of Income Tax Circle 1, Margao V. M/s. Goa International School P. Ltd., Goa

ITA 241/PAN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93488 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI LD
• Assessee Lawyers: SAURABH SOPANKAR
• Keywords: Scheme of amalgamation
• Section: 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, HON'BLE ACCOUNTANT MEMBER ITA N O . 241 /PNJ/20 13 : (A.Y 2007 - 08 ) ACIT, CIRCLE - 1, MARGAO ( APPELLANT) VS. M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. (NOW ZURI HOTELS & RESORTS PVT. LTD.), PLOT NO. 178/1, 179/1, PEDDA VARCA, RADISSON WHITE SANDS BEACH RESORT, SALCETE, GOA PAN : AACCG1266D (RESPONDENT) ASSESSEE BY : SAURABH SOPANKAR, SR. ADV. & SANDIP BHANDARE, CA REVENUE BY : SMT. ASHA DESAI , LD. DR DATE OF HEARING : 1 6 / 06 /201 5 DATE OF PRONOUNCEMENT : 1 6 / 06 /201 5 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), PANAJI IN ITA NO. 16/MRG/2013 - 14 DT. 25.6.2013 FOR THE A.Y 2007 - 08. SMT. ASHA DESAI, LD. STANDING COUNSEL REPRESENTED ON BEHALF OF THE REVENUE AND SHRI SAURABH SOPARKAR, SR. ADVOCATE ALONGWITH SHRI SANDIP BHANDARE, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 2 . IT WAS SUBMITTED BY THE LD. STANDING COUNSEL ON BEHALF OF THE REVENUE THAT THE ISSUE IN APPEAL WAS AGAINST THE ACTION OF THE LD. CIT(A) IN ANNULLING THE 2 ITA NO. 241/PNJ/2013 (A.Y : 2007 - 08) ASSESSMENT BY HOLDING THAT THE NOTICE ISSUED U/S 148 AFTER THE DATE OF MERGER OF THE ASSESSEE AND IN THE NAME OF THE ASSESSEE WAS BAD IN LAW . IT WAS THE SUBMISSION THAT THE ASSESSEE, M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. HAD BEEN AMALGAMATED WITH M/S. RAMBOO PROLEN (INDIA) PVT. LTD. IT WAS THE SUBMISSION THAT THE AO HAD ISSUED THE NOTICE U/S 148 IN TH E NAME OF M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. BUT HAD COMPLETED THE ASSESSMENT IN THE NAME OF M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. (NOW M/S. ZURI HOTELS & RESORTS PVT. LTD.). IT WAS THE SUBMISSION THAT AS THE ASSESSMENT HAS BEEN COMPLETED IN THE NA ME OF THE CORRECT PERSON, THE ORDER OF THE LD. CIT(A) IN ANNULLING THE ASSESSMENT ON THE BASIS OF THE NOTICE U/S 148 ISSUED TO M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. WAS LIABLE TO BE REVERSED. IT WAS THE SUBMISSION THAT IN THE INTEREST OF JUSTICE AND CON SIDERING THE REVENUE INVOLVED, THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR ON BEHALF OF THE ASSESSEE DREW OUR ATTENTION TO PGS. 35 TO 44 OF THE PAPER BOOK WHICH WAS THE ORDER THE HON'BLE JURISDICTION HIGH COURT OF BOMB AY SANCTIONING THE SCHEME OF AMALGAMATION OF M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. WITH M/S. RAMBOO PROLEN (INDIA) PVT. LTD. IT WAS THE SUBMISSION THAT THIS ORDER IS DT. 27.7.2007 AND THE AMALGAMATION HAS BEEN APPROVED W.E.F. 1.4.2006. IT WAS THE FURTH ER SUBMISSION THAT THE SAID INFORMATION IN REGARD TO THE AMALGAMATION AND THE CONSEQUENT DEEMED WINDING UP OF M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. WAS RECOGNIZED BY THE AO INSOFAR AS THE AO HAD ISSUED A SUMMONS U/S 13 1 NOTICING THE NEW NAME ON 9.2.2010. THE COPY OF THE SUMMONS ISSUED U/S 13 1 WAS SHOWN AT PG. 100 OF THE PAPER BOOK. IT WAS THE FURTHER SUBMISSION THAT ON 12.4.2010 THE ASSESSEE, NOW KNOWN AS M/S. ZURI HOSPITALITY PVT. LTD. HAD RESPONDED TO THE SAID SUMMONS AND HAD EXPLAINED ALL THE FACTS T O THE AO. IT WAS THE SUBMISSION THAT ON 17.11.2011 THE AO ISSUED A NOTICE U/S 148 AGAIN IN THE NAME OF THE NON - EXISTENT COMPANY, M/S. 3 ITA NO. 241/PNJ/2013 (A.Y : 2007 - 08) GOA INTERNATIONAL SCHOOL PVT. LTD. IT WAS THE SUBMISSION THAT ONCE THE AMALGAMATION HAS TAKEN PLACE AND THE SAME HAS ALS O BEEN SANCTIONED BY THE HON'BLE HIGH COURT AND THE DATE OF THE AMALGAMATION IS 1.4.2006, BEING THE APPOINTED DATE AND THIS INFORMATION BEING AVAILABLE WITH THE AO, THE NOTICE ISSUED U/S 148 IN THE NAME OF THE NON - EXISTENT COMPANY, M/S. GOA INTERNATIONAL S CHOOL PVT. LTD. MADE THE NOTICE U/S 148 ITSELF INVALID AND CONSEQUENTLY THE ASSESSMENT ON THE BASIS OF SUCH NOTICE WAS ALSO VOID AB INITIO . IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) ON THIS ISSUE WAS LIABLE TO BE UPHELD. THE LD. AR PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MARSHALL SONS & CO. (INDIA) LTD. REPORTED IN 223 ITR 809 (SC) , AS ALSO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE ENTERTAINMENT LTD. IN ITA NO. 475 AND 476 OF 2011 DT. 3.8.2011, AS ALSO THE DECISION OF THE COORDINATE DELHI BENCHES OF THIS TRIBUNAL IN THE CASE OF COMPUTER ENGINEERING SERVICES INDIA (P) LTD. IN ITA NO. 559 TO 564/DEL/2014 DT. 29.5.2015 TO SUPPORT HIS CONTENTION THAT ONCE THE AMALGAM ATION IS APPROVED AND SANCTIONED BY THE HON'BLE HIGH COURT AND THE SANCTION DATE FOR THE AMALGAMATION IS PRESCRIBED BY THE HON'BLE HIGH COURT, IN THIS CASE 1.4.2006, AS A CONSEQUENCE OF THE AMALGAMATION, THE AMALGAMATED ASSESSEE WOULD CEASE TO EXIST AND AN Y NOTICE ISSUED SUBSEQUENT TO THE SANCTION OF AMALGAMATION, MORE SO, THE APPOINTED DATE, THE NOTICE AND THE CONSEQUENTIAL PROCEEDINGS WOULD BE INVALID AND A NULLITY. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). 4. WE HAVE HEARD THE RIVA L SUBMISSIONS. A PERUSAL OF THE ORDER OF THE HON'BLE BOMBAY HIGH COURT SANCTIONING THE SCHEME OF AMALGAMATION DT. 27.7.2007 IN THE PRESENT CASE CLEARLY SHOWS THAT THE APPOINTED DATE UNDER THE SCHEME OF AMALGAMATION IS 1.4.2006. THE FACT OF THE AMALGAMATI ON WAS ALSO VERY WELL KNOWN TO THE AO AS EARLY AS ON 9.2.2010 WHEN HE ISSUED THE SUMMONS TO M/S. GOA INTERNATIONAL SCHOOL PVT. LTD., THEN KNOWN AS M/S 4 ITA NO. 241/PNJ/2013 (A.Y : 2007 - 08) RAMBOO PROLEN (INDIA) PVT. LTD. THIS NOTICE WAS ALSO RESPONDED TO BY THE ASSESSEE, M/S. ZURI HOSPITALITY PVT. LTD. WHEREIN THE FACTS OF THE AMALGAMATION HAD BEEN CLEARLY BROUGHT OUT. CONSEQUENTLY, WE ARE OF THE VIEW THAT THE NOTICE ISSUED U/S 148 DT. 17.11.2011 BY THE AO IN THE NAME OF M/S. GOA INTERNATIONAL SCHOOL PVT. LTD. IS A NULLITY AND CONSEQUENTLY TH E ASSESSMENT ALSO BECOMES NULLITY. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(A) ON THIS ISSUE IS ON A RIGHT FOOTING AS HE HAS FOLLOWED THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MARSHALL SONS & CO. (INDIA) LTD. REFERRED TO SUPRA AND ALSO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE ENTERTAINMENT LTD. REFERRED TO SUPRA. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 6 /06/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NO. 241/PNJ/2013 (A.Y : 2007 - 08) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 16/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 1 7 /06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 1 7 /06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 1 7 /06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 7 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 16/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 7 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER