ALLIED BLENDERS & DISTLLERS P.LTD, MUMBAI V. CIT 6, MUMBAI

ITA 2872/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8080 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Keywords: Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.2872/MUM./2014 ( ASSESSMENT YEAR :2009 - 10 ) ALLIED BLENDERS & DISTILLERS P. LTD. 394/C, GR. FLOOR, LAMINGTON CHAMBERS, OPERA HOUSE, MUMBAI 400 004 PAN AACY38946K . APPELLANT V/S CIT 6, MUMBAI. . RESPONDENT ASSESSEE BY : SHRI. RAKESH JOSHI REVENUE BY : SHRI. R. P. MEENA DATE OF HEARING 06.03.2017 DATE OF ORDER 07.03.2017 O R D E R PER: SHAMIM YAHYA THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT PASSED U/S. 263 OF THE I.T. ACT, DATED. 30.03.2014 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10 . 2. THE GROUNDS OF APPEAL READ AS UNDER: I) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT HAS ERRED IN PASSING REVISION ORDER U/S. 263N OF THE ALLIED BLENDERS & DISTILLERS P. LTD. ITA NO.2872/MUM./2014 2 INCOME TAX ACT, 1961, WITHOUT HAVING VALID JURISDICTION AND AUTHORITY OF LAW. II) ON THE FACT AND CIRCUMSTANC ES OF THE CASE AS WELL AS IN LAW, THE LD. CIT HAS ERRED IN PASSING REVISION ORDER U/S. 263 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT PASSED BY THE LD. AO AFTER MAKING ADEQUATE ENQUIRIES AND APPLICATION OF MIND, WITHOUT CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. III) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT HAS ERRED IN CONSIDERING THE ORDER PASSED U/S. 143(3) OF THE INCOME TAX ACT. 1961 BY THE LD. AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. IV) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT HAS ERRED IN SETTING ASIDE ASSESSMENT ORDER PASSED BY THE LD. AO AND DIRECTING HIM T O MAKE FRESH ASSESSMENT, WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. V) THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE THE SAID GROUND OF APPEAL. 3. AT THE OUTSET IN THIS CASE LD. COUNSEL SUBMITTED THAT ASSESSEE COMPANY HAS MERGED THAT MOONLIGHT BLENDERS AND DISTILLERS PVT. LTD. PURSUANT TO THE ORDER OF THE BOMBAY HIGH COURT ALLIED BLENDERS & DISTILLERS P. LTD. ITA NO.2872/MUM./2014 3 DATED 05.02.2010. FURTHER LD. COUNSEL SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER AFTER HE WAS INFORMED ABOUT THE MERGER . D ESPITE THIS THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER IN THE NAME OF THIS ASSESSEE COMPANY. WHICH WAS NO LONGER IN EXISTENCE . SINCE THE ASSESSEE WAS DULY MERGED THE ASSES SMENT ORDER WAS PASSED ON NON - EXISTENT COMPANY HENCE SUCH AN ORDER IS A NULLITY. HENCE LD. COUNSEL PLEADED THAT THE RE VISION ORDER PASSED BY THE CIT ON A NULL AND VOID ASSESSMENT O RDER IS NOT SUSTAINABLE. FOR TH IS PROPOSITION LD. COUNSEL REFERRED TO ITAT M UMBAI BENCH DECISION IN THE CASE OF M/S . WEST LIFE DEVELOPMENT LTD. VS. PRINCIPAL CIT IN ITA NO. 688/MUM/2016 FOR ASSESSMENT YEAR 2011 - 12. 4 . THE LD. COUNSEL SUBMITTED THAT THE MATTER THAT COMPANY HAS MERGED WAS DULY INTIMATED TO THE LD. CIT ALSO. BUT THE SPECIFIC PLEA THAT REVISIONARY ORDER ON A NULL AND VOID ASSESSMENT OR DER IS NOT SUSTAINABLE WAS NOT SPECIFICALLY RAISED BEFORE THE LD. CIT - A. LD. COUNSEL PRAYED THAT SINCE THIS IS A LEGAL ISSUE WHICH GOES TO ROOT OF THE MATTER AND THAT ALL RELEVANT FACTS ARE ALREADY ON RECORD , THE ASSESSEE MAY BE ALLOWED TO RAISE THIS ASPECT OF THE GROUND. 5 . UPON HEARING THE BOTH THE COUNSEL AND PERUSING THE RECORD WE FIND THAT THIS ASPECT OF THE LD. COUNSEL ASSESSEES GRIE VANCE IS COGENT AND DESERVES AN ADJUDICATION . THE ASSESSEE HAS DULY TAKEN THE ALLIED BLENDERS & DISTILLERS P. LTD. ITA NO.2872/MUM./2014 4 GROUND THAT THE REVISION ORDER PASSED WAS WITHOUT JURISDICTION AND AUTHORITY OF LAW. S INCE THIS ASPECT HAS NOT BEEN ADJUDICATED BY TH E LD. CIT AND IT ALSO NEEDS VERIFICATION AS TO WHETHER THE ASSESSING OFFICER WAS DULLY INTIMA TED REGARDING THE MERGER BEFORE THE PASSING OF THE ASSESSMENT ORDER, WE DEEM IT APPROPRIATE TO REMIT THIS ASPECT OF LD. COUNSEL OF THE ASSESSEES GRIEVANCE TO THE FILE OF THE L D. CIT. LD. CIT SHALL CONSIDER THIS ISSUE AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSE PROPER OPPORTUNITY OF BEING HEARD. IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2017 SD/ - SD/ - RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 07.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRU ALLIED BLENDERS & DISTILLERS P. LTD. ITA NO.2872/MUM./2014 5 E COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI