Comverse Network Systems India Pvt. Ltd., Gurgaon V. ACIT, Gurgaon

ITA 5948/DEL/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2718 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 23-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH JAIN CIT DR TP
• Keywords: Scheme of amalgamation; Non passing of speaking order
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I NEW DELHI BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER ITA. NO. 5948 & 5458/DEL/2010: ASSESSMENT YEAR: 200 6-07 ITA. NO. 5757 & 5758/DEL/2011: ASSESSMENT YEAR: 200 7-08 M/S COMVERSE NETWORK SYSTEMS INDIA VS. ACIT, PRIVATE LTD. CIRCLE-1, 2 ND FLOOR, DLF INFINITY TOWER A, DLF GURGAON, CYBER CITY, PHASE-II, GURGAON, HARYANA 122002 PAN: AABCC3425B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. SALIL KAPOOR, & SH. VIKASH JAIN, ADV. REVENUE BY : SHRI PIYUSH JAIN, CIT .DR. (TP) ORDER PER J. S. REDDY, AM : ALL THESE APPEALS ARE FILED BY THE ASSESSEE DIRECT ED AGAINST THE SEPARATE ORDER OF THE ASSESSING OFFICER PASSED U/S 143(3) R. W.S. 144 C OF THE INCOME- TAX ACT 1961. 2 2. ITA NO. 5948/DEL/2010 AND ITA NO. 5757/DEL/2011 ARE FILED BY COMVERSE NETWORK SYSTEMS INDIA PVT. LTD. FOR THE A. Y. 2006-07 AND 2007- 08. THE OTHER TWO APPEALS WERE FILED BY COMVERSE NE TWORK SYSTEMS INDIA PVT. LTD. AS A SUCCESSOR- IN- INTEREST, TO COMVERSE KENAN INDIA PVT. LTD. AT THE SUGGESTION OF THE LD. COUNSEL FOR THE ASSESSEE, FOR WHICH THE LD. DR HAD NO OBJECTION, ALL THESE FOUR APPEAL ARE HEARD TOGET HER AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. 3. WE HAVE HEARD MR. SALIL KAPOOR THE LD. COUNSEL F OR THE ASSESSEE AND MR. PIYUSH JAIN, THE LD. CIT DR ON BEHALF OF THE RE VENUE. 4. ON CONSIDERATION OF THE RIVAL CONTENTIONS AND PE RUSAL OF THE PAPERS ON RECORD, WE HOLD AS FOLLOWS. COMVERSE KENAN INDIA PVT. LTD MERGED WITH M/S COMV ERSE NETWORK SYSTEMS INDIA PVT. LTD. W.E.F. 01.01.2006, WHICH IS THE APPOINTED DATE OF MERGER. PRIOR TO THE APPROVAL OF THE SCHEME OF ARRA NGEMENT AND AMALGAMATION BY THE HONBLE HIGH COURT PUNJAB & HAR YANA VIDE ORDER DATED 22.8.2008 AND HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 03.042009 U/S 391-394 OF THE COMPANIES ACT 1956, BO TH ENTITIES FILED THEIR RESPECTIVE RETURNS OF INCOME WITH THE RESPECTIVE AO S ON STAND ALONE BASIS. 3 5. THE ASSESSEE SUBMITS THAT THE DETAILS OF MERGER WERE DULY INTIMATED TO THE AO VIDE LETTER DATED 14.9.2009 AND THAT COPIES OF THE SCHEME OF AMALGAMATION AS APPROVED BY THE HONBLE HIGH COURTS WERE ALSO SUBMITTED TO THE AO. IT IS ALSO SUBMITTED THAT OBJECTIONS WER E RAISED BEFORE THE DISPUTE RESOLUTION PANEL, WHICH DID NOT CONSIDER OR ADJUDIC ATE THE ISSUE OF AMALGAMATION AND ITS CONSEQUENCES. THE HONBLE SUPR EME COURT IN THE CASE OF MARSHALL SONS & CO. (INDIA) LTD. VS. ITO 223 ITR 809 HELD THAT THE TRANSFEROR COMPANY STANDS AMALGAMATED WITH THE TRAN SFEREE COMPANY W.E.F. THE APPOINTED DATED AND THE ASSESSMENT SHOULD BE MA DE IN THE HANDS OF THE TRANSFEREE COMPANY IN RESPECT THE CONSOLIDATED OPER ATIONS. 6. IN THE CASE ON HAND SUCH CONSOLIDATED ORDER IN T HE HANDS OF THE TRANSFEREE COMPANY HAS NOT BEEN PASSED. 7. WE ALSO OBSERVED THAT THE DRP IN THESE CASES HAS PASSED A NON SPEAKING ORDER. SUCH ORDERS CANNOT BE SUSTAINED. 8. BE IT AS IT MAY, AS AGREED BY BOTH THE PARTIES, WE DIRECT THE AO TO PASS A SINGLE ORDER IN RESPECT OF THE CONSOLIDATED OPERA TIONS OF BOTH THE COMVERSE NETWORK SYSTEMS INDIA PVT. LTD. AND COMVERSE KENAN INDIA PVT. LTD. IN RESPECT OF THEIR CONSOLIDATED OPERATIONS, DE NOVA I N ACCORDANCE WITH LAW. 4 9. IN RESULT ALL THE APPEAL OF THE ASSESSEE ARE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 10. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST /7/2013. SD/- SD/- ( A. D. JAIN ) (J. S. REDDY) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 31 ST /07/2013 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR