ACIT, New Delhi V. Ms. Nav Bharat Gasflame Marketing Co. Pvt. Ltd., New Delhi

ITA 3054/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3443 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 14-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR YADAV SENIOR
• Assessee Lawyers: B K DHINGRA
• Section: 69C; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE HONBLE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3054/DEL./2014 (ASSESSMENT YEAR : 2008-09) ACIT, VS. M/S. NAVBHARAT GASFLAME MARKETING, CENTRAL CIRCLE 17, CO. PVT. LTD., NEW DELHI. F 90, JAGAT PURI, GALI NO.7, KRISHNA NAGAR, NEW DELHI. (PAN : AABCN9065G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.K. DHINGRA, CA REVENUE BY : SHRI ARUN KUMAR YADAV, SENIOR DR DATE OF HEARING : 02.11.2017 DATE OF ORDER : 10.11.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, ASSISTANT COMMISSIONER OF INCOME-TA X, CENTRAL CIRCLE 17, NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SE T ASIDE THE IMPUGNED ORDER DATED 25.02.2014 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-XII, NEW DELHI QUA THE ASSESSM ENT YEAR 2008-09 ON THE GROUNDS INTER ALIA THAT :- ITA NO.3054/DEL./2014 2 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN CONCLUDING THAT THE ASSESSMENT WAS NOT PERMISSIBLE, THE ASSESSEE COMPANY BEING DISSOLVED ON THE DATE OF ASSESSMENT PROCEEDING. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING T HE ADDITION OF RS.76,73,888/- MADE BY AO ON ACCOUNT OF UNEXPLAINED PURCHASES U/S 69 OF THE I.T. ACT WITHOU T EXAMINING AND ADJUDICATING UPON MERITS OF THE CASE. 3 THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADD ITION OF RS.4,21,853/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF 100% OF EXPENDITURE CLAIMED BY THE ASSESSEE. 4. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN ALLOWING R ELIEF TO THE ASSESSEE W.R.T. REJECTION OF BOOKS OF ACCOUN T MADE BY THE AO. 5. (A) THE ORDER OF THE CIT (A) IS ERRONEOUS AND N OT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING T HE COURSE OF THE HEARING OF THE APPEAL.' 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER NOTICED THAT DURING THE YEAR UNDER ASSESSMENT, THE ASSESSEE COMPANY REMAINE D INTO THE BUSINESS OF DEALING IN WHOLESALE BUSINESS OF TRADIN G OF FABRICS AND CLOTHING AND SHOWN PROFIT OF RS.8,368/- AS AGAINST ITS RESERVES AND SURPLUS OF RS.1,10,96,700/-. AO FURTHER NOTICED TH AT DURING THE YEAR UNDER ASSESSMENT, THE ASSESSEE HAS SUPPOSEDLY MADE ITA NO.3054/DEL./2014 3 PURCHASES OF RS.76,73,888/- AND NET SALES OF RS.77, 58,252/-. ON FAILURE OF THE ASSESSEE TO PROVIDE PROPER VOUCHERS AND BILLS OR EVIDENCES, AO REJECTED THE BOOKS OF ACCOUNT U/S 175 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) AND CONS EQUENTLY HELD THE ENTIRE SALE AND ADMINISTRATIVE AND OTHER EXPENS ES ARE NOT GENUINE AND ADDED AN AMOUNT OF RS.76,73,888/- AS UN EXPLAINED EXPENDITURE TO THE INCOME OF THE ASSESSEE U/S 69C O F THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY PAR TLY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF CHALLENGING THE IMPUGNED ORDER P ASSED BY LD. CIT (A) . 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. DR FOR THE REVENUE RELIED UPON THE ORDER PAS SED BY AO. HOWEVER, ON THE OTHER HAND, LD. AR FOR THE ASSESSEE BY SUPPORTING ORDER PASSED BY LD. CIT (A) CONTENDED THAT SINCE TH E ASSESSEE COMPANY WAS NOT IN EXISTENCE AS ON 31.12.2010, THE AO WAS HAVING NO JURISDICTION TO MAKE THE ASSESSMENT. BEF ORE GOING INTO THE MERIT, WE WOULD LIKE TO DECIDE THE JURISDICTION AL ISSUED FIRST. ITA NO.3054/DEL./2014 4 6. UNDISPUTEDLY, M/S. NAVBHARAT GASFLAME MARKETING CO. PVT. LTD., THE ASSESSEE COMPANY IN THIS CASE HAS BEEN AS SESSED BY THE AO VIDE ASSESSMENT ORDER DATED 31.12.2010. PERUSAL OF ORDER DATED 27.10.2017 PASSED BY NATIONAL COMPANY LAW TRI BUNAL (NCLT), PRINCIPAL BENCH, NEW DELHI IN CP NO.9/2015 IN CASE OF M/S. NAVBHARAT GASFLAME MARKETING CO. PVT. LTD.(ASS ESSEE COMPANY IN THIS CASE) VS. THE REGISTRAR OF COMPANIE S, AVAILABLE AT PAGES 86 TO 99 OF THE PAPER BOOK, LAST PARA AT P AGE 88 GOES TO PROVE THAT NAME OF THE ASSESSEE COMPANY WAS STRUCK OFF VIDE NOTIFICATION DATED 23.06.2007 PUBLISHED IN THE OFF ICIAL GAZETTE OF INDIA WHEREIN THE NAME OF THE ASSESSEE COMPANY WAS AT SL.NO.10452 IN THE GAZETTE NOTIFICATION. PETITION BEFORE NCLT U/S 560 (6) OF THE COMPANIES ACT, 1956 WAS FILED FOR RE VIVAL OF THE COMPANY WHICH WAS DISMISSED WITH COST. 7. SO, WHEN IT IS PROVED THAT THE ASSESSEE COMPANY, WHICH IS A JURISTIC PERSON, WAS NOT IN EXISTENCE AS ON 31.12.2 010, THE DATE OF PASSING OF ASSESSMENT ORDER, HAVING BEEN DISSOLVED/ STRUCK OFF BY THE REGISTRAR OF COMPANIES, DELHI AND HARYANA, NO A SSESSMENT CAN BE MADE. LD. CIT (A) HAS CATEGORICALLY MENTIONED T HESE FACTS AT PAGES 37 & 38 OF THE IMPUGNED ORDER AND THESE FACTS WERE ALSO BROUGHT TO THE NOTICE OF THE AO BY ERSTWHILE DIRECT OR, SHRI INDER DEV SHARMA VIDE LETTER DATED 24.12.2010. ITA NO.3054/DEL./2014 5 8. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WITHOU T ENTERING INTO THE MERITS OF THE CASE, WE ARE OF THE CONSIDER ED VIEW THAT THE ASSESSMENT ORDER PASSED IN THIS CASE BY THE AO IS W ITHOUT ANY JURISDICTION AS THE ASSESSEE COMPANY WAS NOT IN EXI STENCE SO FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER, WE HEREBY DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN OPEN COURT ON THIS 10 TH DAY OF NOVEMBER, 2017. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBER DATED THE 10 TH DAY OF NOVEMBER, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.