Vidharbha Konkan Gramin Bank, Nagpur V. Assistant Commissioner of Income tax, Solapur

ITA 487/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5657 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Validity of assessment; Set aside
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 487 /PUN/201 7 / ASSESSMENT YEAR : 20 11 - 12 VIDHARBHA KONKAN GRAMIN BANK, (SUCCESSOR TO ERSTWHILE WAINGANGA KRISHNA GRAMIN BANK), CHANDRAPRASTHA, 2 ND AND 3 RD FLOOR, PLOT NO. 6, DEENDAYAL NAGAR, RING ROAD, NAGPUR - 440022 PAN : AAAAW1419N ....... / APPELLANT / V/S. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2, SOLAPUR / RESPONDENT ASSESSEE BY : SHRI C. NARESH REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 1 8 - 03 - 2019 / DATE OF PRONOUNCEMENT : 03 - 06 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 7, PUNE DATED 25 - 10 - 2016 FOR THE ASSESSMENT YEAR 2011 - 12. THE ASSESSEE IN APPEAL HAS CHALLENGED THE 2 ITA NO .487/PUN/2017, A.Y. 2011 - 12 VALIDITY OF EX - PARTE ASSESSMENT ORDER DATED 11 - 03 - 2014 MADE IN THE NAME OF NON - EXISTENT ASSESSEE . 2. SHRI C. NARESH APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A CO - OPERATIVE BANK AND IS A SUCCESSOR TO ERSTWHILE WAINGANGA KRISHNA GRAMIN BANK . WAINGANGA KRISHNA GRAMIN BANK FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011 - 12 ON 24 - 09 - 2011. DURING THE PENDENCY OF ASSESSMENT PROCEEDINGS, WAINGANGA KRISHNA GRAMIN BANK MERGED WITH VIDHAR BHA KONKAN GRAMIN BANK. THE NOTIFICATION IN THIS REGARD WAS MADE BY MINISTRY OF FINANCE, GOVERNMENT OF INDIA ON 28 - 02 - 2013. A COPY OF NOTIFICATION IS AT PAGES 3 TO 6 OF THE PAPER BOOK. AN INTIMATION WAS SENT TO THE ASSESSING OFFICER REGARDING AMALGAMATI ON OF WAINGANGA KRISHNA GRAMIN BANK WITH VIDHARBHA KONKAN GRAMIN BANK ON 08 - 11 - 2013. THE SAID COMMUNICATION IS AT PAGE 7 OF THE PAPER BOOK. THEREAFTER, NOTICE U/S. 142(1) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER ON 09 - 12 - 2013 IN THE NAME OF WAINGAN GA KRISHNA GRAMIN BANK. THE ASSESSEE AGAIN VIDE COMMUNICATION DATED 20 - 12 - 2013 INFORMED THE ASSESSING OFFICER THAT WAINGANGA KRISHNA GRAMIN BANK AMALGAMATED WITH VIDHARBHA KONKAN GRAMIN BANK. THE SAID COMMUNICATION IS AT PAGE 9 OF THE PAPER BOOK. VIDE SAME COMMUNICATION THE ASSESSEE REQUESTED TO TRANSFER THE CASE FROM SOLAPUR TO NAGPUR AS THE HEAD OFFICE OF THE BANK WAS SHIFTED TO THE NAGPUR. HOWEVER, NO ACTION WHATSOEVER WAS TAKEN ON THE REQUEST OF THE ASSESSEE AND THE ASSESSING OFFICER ISSUED ANOTHER NOTICE U/S. 144 OF THE ACT IN THE NAME OF ERSTWHILE WAINGANGA KRISHNA GRAMIN BANK. THE SAID NOTI CE IS AT PAGE 10 OF THE PAPER BOOK. FINALLY, THE ASSESSING OFFICER MADE ASSESSMENT ORDER U/S. 144 IN THE NAME OF NON - 3 ITA NO .487/PUN/2017, A.Y. 2011 - 12 EXISTING ASSESSEE I.E. WAINGANGA KRISHNA GRAMIN BANK. THE LD. AR SUBMITTED THAT THE ASSESSMENT ORDER MADE IN THE NAME OF NON - EXISTING ASSESSEE IS BAD IN LAW AND IS UN SUSTAINABLE. TO SUPPORT HIS CONTENTION S THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS : I . COMMISSIONER OF INCOME TAX VS. D IMENSION APPARELS (P.) LTD., 52 TAXMANN.COM 356 (DELHI); II . SAPIENT CONSULTING LIMITED VS. DCIT IN ITA NO. 1728/DEL /2014 FOR ASSESSMENT YEAR 2009 - 10 DECIDED ON 23 - 11 - 2015. 2.1 THE LD. AR POINTED THAT THE ASSESSEE HAD CHALLENGED VALIDITY OF ASSESSMENT ORDER I N THE NAME OF NON - EXISTENT ASSESSEE BEFORE COMMISSIONER OF INCOME TAX (APPEALS). THE FIRST APPELLATE AUTHORITY WITHOUT APPRECIATING THE FACTS/DOCUMENTS ON RECORD AND THE LAW LAID DOWN BY HONBLE DELHI HIGH COURT DISMISSED THE CONTENTIONS OF ASSESSEE ON LE GAL ISSUE. 3. ON THE OTHER HAND SHRI PANKAJ GARG REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER . THE LD. DR SUBMITTED THAT THE RETURN WAS FILED IN THE NAME OF WAINGANGA KRISHNA GRAMIN BANK AND HENCE, THE ASSESSMENT WAS MADE IN THE NAME OF AFORESAID BANK. THE ASSESSEE FAILED TO SUBMIT COPY OF NOTIFICATION VIDE WHICH WAINGANGA KRISHNA GRAMIN BANK WAS MERGED WITH VIDHARBHA KONKAN GRAMIN BANK. THEREFORE, THE ASSESSING OFFICER WAS RIGHT IN MAKING ASSESSMENT IN THE NAME OF WAINGANGA KRI SHNA GRAMIN BANK. 4 ITA NO .487/PUN/2017, A.Y. 2011 - 12 4. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IN APPEAL HAS CHALLENGED THE VALIDITY OF ASSESSMENT ORDER ON JURISDICTIONAL ISSUE. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSMENT HAS BEEN MADE IN THE NAME OF NON - EXISTING ENTITY. THE SEQUENCE OF EVENTS THAT HAVE EMERGED FROM THE DOCUMENTS ON RECORD ARE TABULATED HEREUNDER : DATE EVENTS 24 - 09 - 2011 WAINGANGA KRISHNA GRAMIN BANK FILED RETURN OF INCOME. 28 - 02 - 2013 WAINGANGA KRISHNA GRAMIN BANK AMALGAMATED WITH VIDHARBHA KONKAN GRAMIN BANK BY MINISTRY OF FINANCE, GOVERNMENT OF INDIA NOTIFICATION. 08 - 11 - 2013 THE ASSESSEE ( VIDHARBHA KONKAN GRAMIN BANK) INFORMED THE ASSESSING OFFICER THAT WAINGANG A KRISHNA GRAMIN BANK HAS BEEN AMALGAMATED WITH VIDHARBHA KONKAN GRAMIN BANK , SINCE, THE HEADQUARTER OF THE ASSESSEE IS LOCATED AT NAGPUR THE CASE BE SHIFTED TO NAGPUR. 09 - 12 - 2013 NOTICE U/S. 142(1) ISSUED TO THE ASSESSEE IN THE NAME OF WAINGANGA KRISHNA GRAMIN BANK . 20 - 12 - 2013 THE ASSESSEE AGAIN INFORMED THE ASSESSING OFFICER ABOUT AMALGAMATION OF ERSTWHILE WAINGANGA KRISHNA GRAMIN BANK WITH VIDHARBHA KONKAN GRAMIN BANK AND ALSO REQUESTED FOR SHIFTING ASSESSMENT TO NAGPUR. 05 - 03 - 2014 NOTICE U/S. 142(1) R.W.S. 144 ISSUED BY THE ASSESSING OFFICER IN THE NAME OF WAINGANGA KRISHNA GRAMIN BANK . 11 - 03 - 2014 ASSESSMENT ORDER U/S. 144 PASSED BY ASSESSING OFFICER IN THE NAME OF WAINGANGA KRISHNA GRAMIN BANK . 5. IT IS A WELL SETTLED LAW THA T THE ASSESSMENT CANNOT BE MADE IN THE NAME OF DEAD PERSON OR DISSOLVED /AMALGAMATED COMPANY. IN THE PRESENT CASE, THE ASSESSEE HAD INFORMED ABOUT AMALGAMATION OF WAINGANGA 5 ITA NO .487/PUN/2017, A.Y. 2011 - 12 KRISHNA GRAMIN BANK WITH VIDHARBHA KONKAN GRAMIN BANK WELL BEFORE THE PASSING OF ASSESSMENT ORDER . D ESPITE HAVING INFORMATION ABOUT AMALGAMATION OF WAINGANGA KRISHNA GRAMIN BANK WITH VIDHARBHA KONKAN GRAMIN BANK , T HE ASSESSING OFFICER ISSUED NOTICE U/S. 142(1) IN THE NAME OF NON - EXISTENT ENTITY . T HEREAFTER , THE ASSESSING OFFICER PROCEEDED ON TO MAKE ASSESSMENT ORDER IN THE NAME OF NON - EXISTENT ENTITY BY INVOKING THE PROVISIONS OF SECTION 14 4 OF THE ACT. THE DOCUMENTS ON RECORD CLEARLY INDICATE THAT THE ASSESSEE HAD INFORMED THE ASSESSING OFFICER ON TWO OCC ASIONS I.E. FIRST TIME ON 08 - 11 - 2013 AND AGAIN ON 20 - 12 - 2013 REGARDING AMALGAMATION OF WAINGANGA KRISHNA GRAMIN BANK WITH VIDHARBHA KONKAN GRAMIN BANK . THE ASSESSEE HAD DISCHARGED ITS ONUS OF INTIMATING THE ASSESSING OFFICER REGARDING FACT OF AMALGAMATION . AFTER THE NOTIFICATION BY MINISTRY OF FINANCE ON 28 - 02 - 2013 WAINGANGA KRISHNA GRAMIN BANK CEASES TO EXIST. HOWEVER, THE ASSESSING OFFICER COMPLETELY IGNORED THE COMMUNICATIONS FROM ASSESSEE AND PROCEEDED ON TO MAKE ASSESSMENT IN THE NAME OF WAINGANGA K RISHNA GRAMIN BANK . SINCE, THE ASSESSMENT HAS BEEN MADE IN THE NAME OF NON - EXISTENT ENTITY , THE SAME IS INVALID. 6. THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. DIMENSION APPARELS (.) LTD. (SUPRA) HAS HELD THAT THE ASSESS MENT MADE ON DISSOLVED/ AMALGAMATED COMPANY IS INVALID. EVEN IF AMALGAMATING COMPANY PARTICIPATED IN THE ASSESSMENT PROCEEDINGS , THE JURISDICTIONAL DEFECT IS INCURABLE AND T HE PROVISIONS OF SECTION 292B CANNOT VALIDATE THE SAME. THUS, IN VIEW OF THE FACTS OF THE CASE AND THE WELL 6 ITA NO .487/PUN/2017, A.Y. 2011 - 12 SETTLED LAW , WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF ASSESSEE IS ALLOWED. 7. SINCE, THE ASSESSEE SUCCEEDS ON LEGAL ISSUE, RAISED IN GROUNDS OF APPEAL NOS. 1 AND 2, THE OTHER GROUND NOS. 2 TO 5 RAISED IN APPEAL HAVE BECOME ACADEMIC AND HENCE, NOT DELIBERATED UPON. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON MONDAY, THE 03 RD DAY OF JUNE, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 03 RD JUNE, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 7, PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 6 , PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE