M/s. Shaw Wallace Properties Limited, Chennai V. ACIT, Central Circle - XXVIII, Kolkata, Kolkata

ITA 896/KOL/2008

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74989 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 21-05-2008
• Court: TRIBUNAL
• Department Lawyers: K K DAS LD JCITSR
• Assessee Lawyers: A K GUPTA FCA LD

Judgement Text

, C , INCOME TAX APPELLATE TRIBUNAL, BENCH- C KOLKATA ( ) BEFORE . . , SHRI P.K.BANSAL, ACCOUNTANT MEMBER !' /AND #$#% 1 ' , SHRI GEORGE MATHAN, JUDICIAL MEMBER '( / ITA NOS. 896 & 897/KOL/2008 A.YS 2000-01 & 2002-03 M/S. SHAW WALLACE PROPERTIES LIMITED (MERGED WITH GWL PROPTERTIES LTD) PAN: AAACG2538A - ! - - VERSUS -. ACIT, CENTRAL CIRCLE, XXVIII,KOLKATA ( '* / APPELLANT ) ( +,'* / RESPONDENT ) '* . / FOR THE APPELLANT /SHRI A.K. GUPTA, FCA, LD.AR +,'* . / FOR THE RESPONDENT: / SHRI K.K.DAS, LD. JCIT/SR.DR /!0 1 2 /DATE OF HEARING : 15-01-2014 34 1 2 /DATE OF PRONOUNCEMENT:17 -01-2014 / ORDER #$#% 1 ' , SHRI GEORGE MATHAN, JUDICIAL MEMBER THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-I, KO LKATA IN APPEAL NO. 261/CC- XXVIII/CIT(A),C-I/06-07 DATED 15-01-08 FOR THE ASS ESSMENT YEAR 2000-01 AND THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS), CENTRAL-I/III, KOLKATA IN APPEAL NO.151/CC-XXVIII//CIT(A),C-I/05-06 DATED 30 -01-08 FOR THE ASSESSMENT YEAR 2002-03. 2. SHRI A.K. GUPTA, FCA, LEARNED AR REPRESENTE D ON BEHALF OF THE ASSESSEE AND SHRI K.K.DAS, LEARNED JCIT(DR) REPRESENTED ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING BEFORE US, IT WAS SUBMITT ED BY THE LEARNED AR THAT THE ASSESSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL F OR BOTH THE ASSESSMENT YEARS 2000-2001 AND 2002-03 AS FOLLOWS:- ITA NOS. 896 & 897/KOL/08 A.YS 2000-01 & 2002-03 M/ S. SHAW WALLACE PROPT. LTD 2 1. FOR THAT THE ORDER OF ASSESSMENT PASSED BY THE ASSESSING OFFICER IS WITHOUT JURISDICTION AND ILLEGAL AND IS LIABLE TO BE CANCELLED. 2. FOR THAT THE ASSESSING OFFICER FRAMED THE ASSE SSMENT ON SHAW WALLACE PROPERTIES LIMITED WHICH COMPANY WAS N O LONGER IN EXISTENCE ON THE DATE OF THE ORDER PASSED AND AS SU CH THE ASSESSMENT MADE BY THE ASSESSING OFFICER ON SHAW W ALLACE PROPERTIES LTD IS WITHOUT JURISDICTION, ILLEGAL AN D AB INITIO VOID. 3. FOR THAT THERE COULD NOT BE ANY ASSESSMENT OF A NON- EXISTENT PERSON AND AS SUCH THE ORDER OF ASSESSMENT AS FRAMED IS ILLEGAL AND VOID AB INITIO. . 4. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSE SSEE THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F NTPC VS. CIT REPORTED IN (1998) 229 ITR 383(SC), THE ADDITIONAL GROUNDS, WHI CH ARE PURELY LEGAL ISSUES AND WHICH GO TO THE ROOT OF THE ASSESSMENT, THE SAME A RE LIABLE TO BE ADMITTED. 5. IN REPLY, THE LEARNED JCIT(SR.DR) DID NOT RAISE ANY SPECIFIC OBJECTION. 6. WE HAVE CONSIDERED THE SUBMISSIONS. AS IT IS NOT ICED THAT THE ADDITIONAL GROUNDS ARE PURELY LEGAL ISSUES, THE SAME ARE ADMIT TED AND ARE BEING DISPOSED OF ON MERITS. 7. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSES SEE THAT THE ASSESSEE COMPANY HAD MERGED WITH M/S. GWL PROPERTIES LTD. [ FOR SHORT M/S. GWLPL]. HE DREW OUR ATTENTION TO PARAS 3.1 AND 3.2 OF THE ORDE R OF THE LD.CIT(A), WHEREIN THE FACTS HAVE BEEN CLEARLY BROUGHT OUT BY THE LD.CIT(A ). IT WAS THE SUBMISSION THAT THE AMALGAMATION OF THE ASSESSEE WITH M/S. GWLPL, WHICH HAD ITS REGISTERED OFFICE IN CHENNAI BECAME EFFECTIVE FROM 30-09-2001 BY THE OR DER OF THE HONBLE CHENNAI HIGH COURT DATED 20-02-2002 AND THE ORDER OF THE HO NBLE JURISDICTIONAL CALCUTTA HIGH COURT DATED 19-04-2002. IT WAS THE SUBMISSION THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED ON 31-03-2003. IT WAS THE FURTHER SUBMISSION THAT THE ISSUE OF AMALGAMATION WAS ALSO WITHIN THE KNOWLEDGE OF THE AO IN SO FAR AS IN THE ASSESSMENT ORDER ALSO THE AO HAS RECOGNISED THAT TH E INSPECTORS REPORT OF THE ASSESSEE COMPANY HAVE GOT MERGED WITH M/S. GWLPL WA S ALSO RECOGNISED. IT WAS THE SUBMISSION THAT AS THE ASSESSMENT ORDER WAS PAS SED MUCH AFTER THE AMALGAMATION, THE ASSESSEE COMPANY WAS NON EXISTENC E ON THE DATE OF THE ASSESSMENT. CONSEQUENTLY, THE ASSESSMENT ORDER WAS LIABLE TO BE ANNULLED. HE ITA NOS. 896 & 897/KOL/08 A.YS 2000-01 & 2002-03 M/ S. SHAW WALLACE PROPT. LTD 3 RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF PAMPASSAR DISTILLERY LTD VS. ACIT REPORTED IN (2007 ) 15 SOT 331 (KOL), WHEREIN IT HAD BEEN HELD THAT WHEN AFTER AMALGAMATION, THE AM ALGAMATING COMPANY GETS MERGED AND DOES NOT REMAIN IN EXISTENCE, THEN THE I NCOME UP TO THE DATE OF AMALGAMATION SHOULD BE ASSESSED IN THE HANDS OF THE AMALGAMATING COMPANY I.E. THE SUCCESSOR COMPANY IN THE LIKE MANNER AND TO THE SAME EXTENT AS IT WOULD HAVE BEEN ASSESSED IN THE HANDS OF THE AMALGAMATING COMP ANY. IT WAS FURTHER HELD THAT THE ASSESSMENT MADE IN THE HANDS OF THE NON-EXISTEN CE COMPANY IS A NULLITY AND INVALID. IT WAS THE SUBMISSION THAT AS THE ASSESSE E COMPANY WAS THE AMALGAMATING COMPANY, IT HAD GOT AMALGAMATED WITH M/S. GWLPL AS EARLY AS ON 30-09-2001, THE ASSESSMENT ORDER PASSED ON 31-03-2006 IN THE CASE OF THE ASSESSEE WAS LIABLE TO BE ANNULLED AND INVALID. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M/S.GWLPL W.E.F. 30-09-2001 IN VIEW OF THE SAID ORDER OF THE HONBLE CHENNAI HIGH COURT AS ALS O THE ORDER OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT, THE ASSESSMENT ORDER DATED 31-03-2003 IN THE CASE OF THE ASSESSEE COMPANY, WHICH HAS ALREADY GO T AMALGAMATED AND CONSEQUENTLY, BECOME A NON EXISTENCE COMPANY IS INV ALID AND NULLITY. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE SAID ORDE R OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF PAMPASSAR DISTILLERY LTD ( REFER TO SUPRA), THE ASSESSMENT ORDERS STAND QUASHED. 9. IN THE RESULT, BOTH THE ASSESSEES APPEALS IN I TA NOS.896 & 897/KOL/08 FOR THE ASSESSMENT YEARS 2000-01 & 2002-03 ARE ALLOWED A S STATED ABOVE. 5 / 6 / 7 58 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT.17-01 -14 SD/- SD/- ** PRADIP SPS ( . . , ) ( P.K.BANSAL , ACCOUNTANT MEMBER ) ( #$#% 1 ' , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 2 2 2 2 ) )) ) DATE 17-01-14 ITA NOS. 896 & 897/KOL/08 A.YS 2000-01 & 2002-03 M/ S. SHAW WALLACE PROPT. LTD 4 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . '* / THE APPELLANT : M/S. SHAW WALLACE PROPERTIES LTD . (SINCE MERGED WITH GWL PROPERTIES LIMITED) 36 RAJAJI SALAI, CHENN AI-600 001. 2 +,'* / THE RESPONDENT- ACIT,CC,XXVIII, KOL 3 4. . . / THE CIT, . ( )/ THE CIT(A) 5 . !<.7 +. / DR, KOLKATA BENCH 6 . GUARD FILE . + ,9 +./ TRUE COPY, // BY ORDER, 5 '# /ASSTT REGISTRAR