M/s. Padmavati Properties & Trust Pvt. Ltd., Kolkata V. DCIT, Circle - 12, Kolkata, Kolkata

ITA 570/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74948 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 12-04-2011
• Court: TRIBUNAL
• Department Lawyers: DR SWETABH SUMAN
• Assessee Lawyers: S JHAJHARIA
• Keywords: Procedural lapse
• Section: 143(3); 263

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 570/KOL/2011 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2006-07 M/S. PADMAVATI PROPERTIES & TRUST PVT. LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX, (PAN: AACCA1181D) CIRCLE-12, KOLKATA (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 07.01.2014 DATE OF PRONOUNCEMENT: 10.01.2014 FOR THE APPELLANT: SHRI S. JHAJHARIA FOR THE RESPONDENT: DR. SWETABH SUMAN, CIT, DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF REVISION ORDER OF CIT-IV, KOLKATA IN F. NO. CIT-IV/U/S. 263/2010-11/9252-55 DATED 23.03.20 11. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-12, KOLKATA U/S. 143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DA TED 31.12.2008. 2. THE FIRST JURISDICTIONAL ISSUE RAISED BY THE ASS ESSEE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT-IV, KOLKATA I.E. THE REVISION ORDE R PASSED U/S. 263 OF THE ACT ON A COMPANY WHCH WAS NON-EXISTENT. FOR THIS, ASSESSEE HAS RAISE D FOLLOWING TWO GROUNDS: 1. SINCE AARCEE HOLDINGS PVT. LTD. WAS AMALGAMATED WITH PADMAVATI PROPERTIES & TRUST LTD. UNDER AN ORDER OF HONBLE KOLKATA HIGH C OURT W.E.F. 1 .4.2007, THIS APPEAL IS BEING FILED BY PADMAVATI PROPERTIES & TRUST LTD. (I N SHORT PPTL) AS APPELLANT SINCE AS PER ORDER OF AMALGARNATION AND AS PER SCHEME OF AMA LGAMATION AND AS PER COMPANIES ACT FROM THE DATE OF AMALGAMATION ALL ACTS AND ACTI ON IN RESPECT OF AN AMALGAMATED COMPANY CAN ONLY BE DONE IN THE NAME OF THE AMALGAM ATING COMPANY AND IN THE NAME OF AMALGAMATING COMPANY. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES THE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN ISSUING THE SHOW-CAUSE NOTICE U/S 26 3 IN THE NAME OF A NON-EXISTENT PERSON I.E. AARCEE HOLDINGS PVT. LTD. WHEN THE MATT ER REGARDING AMALGAMATION OF THE SAME WITH THE APPELLANT COMPANY (PPTL) WAS SPECIFIC ALLY BROUGHT TO THE NOTICE OF THE AO AND ALSO THE CONCERNED CIT AND THE ORDER U/S 263 HAVING BEEN MADE IN THE NAME OF A NON-EXISTENT COMPANY NAMELY AARCEE HOLDINGS PVT. LTD. WHICH WAS ALREADY AMALGAMATED WITH PPTL, W.E.F. 1 .4.2007 THE PRESENT APPELLANT, THE ENTIRE ORDER U/S 263 MADE IN THE NAME OF NON-EXISTENT PERSON IS WHOLLY B AD, ILLEGAL, UNJUSTIFIED AND VOID ABINITIO AND IS LIABLE TO BE QUASHED/ CANCELLED PAR TICULARLY KEEPING IN VIEW THE FACT THAT 2 ITA NO. 570/K/2011 PADMAVATI PROPERTIES & TRUST PVT. LTD. , AY:2006-07 THE MATTER WAS FULLY IN THE KNOWLEDGE OF THE CIT AN D IN VIEW OF THE FACTS AND IN TLIE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY.. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE RELEVANT ASSESSMENT YEAR INVOLVED IS 2006-07 AND ORIGINAL ASSESSMENT WAS MADE U/S. 143(3) OF THE ACT BY DCIT, CIRCLE-12, KOLKATA VIDE HIS ORDER DATED 31.12.2008. THIS ASSESSMENT WAS FRAMED IN THE NAME AND ADDRESS OF THE ASSESSEE AS UNDER: M/S. AARCEE HOLDING PVT. LTD., 234/3A, AJC BOSE RO AD, FMC FORTUNA, 3 RD FLOOR, KOLKATA-700 020. THIS COMPANY WAS HAVING PAN NO. AACCA1181D. SUBSEQ UENTLY, THIS COMPANY AARCEE HOLDING PVT. LTD. WAS AMALGAMATED WITH PADMAVATI PR OPERTIES & TRUST LTD. VIDE ORDER OF HONBLE CALCUTTA HIGH COURT IN CO. PETITION NO. 23 OF 2008 VIDE ORDER DATED 17.04.2008 W.E.F. 01.04.2007. THE RELEVANT COPY OF THE HONBLE CALCU TTA HIGH COURT AMALGAMATING AARCEE HOLDING PVT. LTD. WITH THE PRESENT ASSESSEE PADMAVA TI PROPERTIES & TRUST LTD. IS FILED BY THE ASSESSEE BEFORE THE CIT-IV, KOLKATA AND EVEN BEFORE THE AO. THE RELEVANT OBJECTION VIDE LETTER DATED 07.01.2011 WAS RAISED BEFORE CIT AND THE REL EVANT LETTER READS AS UNDER: DT. 07.01.201L TO THE COMMISSIONER OF INCOME- TAX, KOLKATA-IV, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 REF: YOUR LETTER NO. CIT-IV/REVIEW U/S.263/2010-11 /4745 DT.23.12.10 SUB: SHOW CAUSE NOTICE U/S. 263 FOR THE ASSESSMENT YEAR 2006-07 IN THE CASE OF M/S. ARCEE HOLDINGS PVT. LTD. (PAN:AACCA1181D) WHILE ACKNOWLEDGING THE RECEIPT YOUR AFORESAID SHOW CAUSE NOTICE AND AT THE OUT SET THIS IS TO SUBMIT BEFORE YOUR HONOUR THAT THE AFORESAID COMPANY IS NO MORE IN EXISTENCE SINCE BY AN ORDER DATED 16.04.2008 OF THE HONBLE KOLKATA HI GH COURT IN COMPANY PETITION NO.123 OF 2008, THE AFORESAID COMPANY I.E. M/S. AARCEE HOL DINGS PVT. LTD. STANDS AMALGAMATED WITH M/S. PADMAVATI PROPERTIES AND TRUST LTD. WITH EFFECT FROM 1ST DAY OF APRIL 2007. IN CONNECTION WITH THE HEARING FIXED ON 11.01.2011 BY YOUR AFORESAID SHOW CAUSE NOTICE THIS IS TO REQUEST YOU TO KINDLY ALLOW AN ADJOURNME NT FOR 4(FOUR) WEEKS IN THE MATTER SO AS TO ENABLE US TO OBTAIN ALL NECESSARY DETAILS, PARTI CULARS AND CLARIFICATIONS FOR MAKING PROPER REPRESENTATION AND IT WOULD BE APPRECIATED B Y YOUR HONOUR THAT IN ABSENCE OF ALL THE REQUIRED DETAILS AND PARTICULARS, IT WILL NOT BE PO SSIBLE TO MAKE A PROPER REPRESENTATION. THE HEARING MAY KINDLY BE RE-FIXED ON ANY DAY AFTER L5TH OF FEBRUARY, 2011 AS MAY BE CONVENIENT TO YOUR HONOUR. WE ARE VERY SORRY FOR THE INCONVENIENCE, BUT, UNDER THE CIRCUMSTANCES WE ARE SURE THAT OUR THIS PETITION WILL HAVE A SYMPATHETIC AND JUDICIOUS CONSIDERATION IN THE HANDS OF YOUR 3 ITA NO. 570/K/2011 PADMAVATI PROPERTIES & TRUST PVT. LTD. , AY:2006-07 HONOUR AND /KEEPING IN VIEW THAT THE MATTER WILL GE T BARRED ON 31.03.2011 ONLY, THE ADJOURNMENT AS REQUESTED ABOVE MAY KINDLY BE ALLOWE D. THE HEARING FIXED ON 11.01.2011 MAY THEREFORE BE KI NDLY ADJOUMED UNDER INTIMATION TO OUR ABOVE CLIENT. COPY OF GENERAL POWER OF ATTORNEY IS ENCLOSED HEREW ITH. THANKING YOU, YOURS FAITHFULLY, SD/- AUTHORISED REPRESENTATIVE. ENCL: AS ABOVE. 4. IN VIEW OF THE ABOVE, THE LD. COUNSEL FOR THE AS SESSEE STATED THAT NO COMPANY IN THE NAME OF AARCEE HOLDING PVT. LTD. WAS IN EXISTENCE A S ON THE DATE OF SHOW CAUSE NOTICE DATED 23.12.2010 INITIATING REVISION PROCEEDING U/S. 263 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE BEFORE US FILED COPY OF THE DECISION OF HONBLE DEL HI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD. VS. CIT (2012) 247 CTR (DEL) 500, WHEREIN IT IS HED THAT ASSESSMENT IN THE NAME OF THE COMPANY WHICH HAS BEEN AMALGAMATED WITH ANOTHER COMPANY AND STANDS DISSOLVED IS NULL AND VOID; ASSESSMENT FRAMED IN THE NAME OF A NON-EXISTING ENTITY IS A JURISDICTIONAL DEFECT AND NOT MERELY A PROCEDURAL IRREGULARITY OF THE NATURE WHICH CAN BE CURED BY INVOKING THE PROVISIONS OF S. 292B. IN THE PRESENT CASE ALS O THE AMALGAMATION TOOK PLACE VIDE THE ORDER OF HONBLE CALCUTTA HIGH COURT DATED 17.04.2008 W.E .F. 01.04.2007 AND THIS COMPANY AARCEE HOLDING PVT. LTD. HAS AMALGAMATED WITH PADMAVATI PR OPERTIES & TRUST LTD. AND NO REVISION ORDER CAN BE PASSED ON A NON-EXISTENT COMPANY. HEN CE, THE VERY PREMISE OF THE REVENUE THAT REVISION ORDER PASSED ON A NON-EXISTENT COMPANY DOE S NOT STAND. MOREOVER, THE ISSUE IS ALSO COVERED BY THE DECISION OF HONBLE CALCUTTA HIGH CO URT IN THE CASE OF I. K. AGENCIES P. LTD. VS. CIT (2012) 347 ITR 664 (CAL). AS THE ISSUE IS SQUARELY COVERED, WE QUASH THE REVISION PROCEEDING, WHICH IS NULL AND VOID AND THE APPEAL O F ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 10.01.2 014 SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10TH JANUARY, 2013 12 '3' 4 JD.(SR.P.S.) 4 ITA NO. 570/K/2011 PADMAVATI PROPERTIES & TRUST PVT. LTD. , AY:2006-07 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT M/S. PADMAVATI PROPERTIES & TRUST PVT. LTD. C/O SALARPURIA JAJODIA & CO. 7, C. R. AVENUE, KOLKATA-7 00 072.. 2 ./,- / RESPONDENT DCIT, CIRCLE-12, KOLKATA. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .