M/S. ELITE REALCON PVT. LTD.(SUCCESSOR TO SOLID INFORMATION PVT. LTD.) ,KOLKATA V. ITO,WARD-2(2),KOLKATA, KOLKATA

ITA 681/KOL/2023

AI Insights

The case involves an appeal by Elite Realcon Private Ltd., which is the successor to Solid Infracon Pvt. Ltd., against an assessment order passed by the Income Tax Officer (ITO) in the name of Solid Infracon Pvt. Ltd., a company that had already been amalgamated into Elite Realcon Pvt. Ltd. The assessment order was challenged on the grounds that it was issued in the name of a non-existent company post-amalgamation, which was legally and factually incorrect. The Tribunal acknowledged the procedural error and the legal implications of passing an order in the name of a non-existing entity, leading to the decision to restore the matter to the AO for proper assessment in light of the amalgamation.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 314495 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Other Referred Cases: Marshall Sons and Co (India) Ltd vs ITO, CIT vs. Maruti Suzuki, Shivkumar Agrawal vs. [1990] 186 ITR 374(Orissa)
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P.N. BARNWAL
• Assessee Lawyers: C. ROY
• Keywords: Condonation of delay; TDS; Scheme of amalgamation

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER आयकर अपील सं/ITA No.681/KOL/2023 (निर्धारण वर्ा / Assessment Year : 2011-2012) M/s Elite Realcon Private Ltd. (Successor to Solid Infracon Private Limited) 16 Ganesh Chandra Avenue, 7th Floor, Kolkata Vs ITO, Ward-2(2), Kolkata PAN No. :AACCE 3338 C (अपीलधर्थी /Appellant) .. (प्रत्यर्थी / Respondent) निर्धाररती की ओर से /Assessee by : Shri C. Roy, AR रधजस्व की ओर से /Revenue by : Shri P.N. Barnwal, CIT-DR सुनवाई की तारीख / Date of Hearing : 08/05/2025 घोषणा की तारीख/Date of Pronouncement : 08/05/2025 आदेश / O R D E R Per Bench : This is an appeal filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre(NFAC), Delhi dated 29.03.2022, passed in DIN & Order No.ITBA/NFAC/S/250/2021-22/1041881225(1) for the assessment year 2011-2012. 2. Shri C. Roy, AR, appeared on behalf of the assessee. Shri P.N.Barnwal, CIT-DR appeared on behalf of the revenue. 3. The appeal filed by the assessee is delayed by 404 days for which the assessee has filed the necessary application for condonation of delay. The reasons given in the petition for condonation of delay are found to be plausible and the same are accepted and the delay of 404 days in filing the appeal is condoned and the appeal is disposed off on merits. 4. It was submitted by the ld. AR that the assessee company namely Solid Infracon Pvt. Ltd. had merged with Elite Realcon Pvt. Ltd., vide ITA No.681/KOL/2023 2 amalgamation order dated 21.11.2016 passed by the Hon'ble Jurisdictional High Court of Calcutta in Company Petition No.768/2016. It was the submission that the assessment order has been passed on 30.12.2016 in the case of the assessee on which date the assessee was no more exiting on account of amalgamation. It was the submission that as the assessment order passed in the case of assessee would no more exist as on the date of passing of the assessment order, the assessment order is liable to be quashed. Ld. AR drew our attention to copy of a letter dated 28.11.2016, wherein the information of amalgamation had been brought to the attention of the AO. The letter reads as follows :- ITA No.681/KOL/2023 3 5. It was the submission that the assessee, admittedly, had not represented before the ld. CIT(A). It was the submission that the issues in this appeal may be restored to the file of the AO for examination and verification in respect of amalgamation and to readjudicate the issue as to whether the assessment itself is to be done in the name of the assessee. 6. In reply, ld. CITDR submitted that the letter dated 28.11.2016 does not provide the information regarding the amalgamation. It was the submission that he had no objection if the issues are restored to the file of AO for examination and reajudication. 7. We have considered the rival submissions. Here we also mention that the assessee has filed a written submission on 24.10.2024, which reads as under :- The sole ground of dispute is the sustainability of the assessment order passed in the name of Solid Infracon Pvt Ltd on 30/12/2016 notwithstanding the fact that the said company was amalgamated w.e.f 1ª April 2015 with Elite Realcon Private Limited and the AO was informed of the fact. The issue raised by the assessee is purely a legal issue emanating from the records available in the record file and goes to the root of the matter and the matter may kindly be admitted for adjudication. The assessee company has been merged with Elite Realcon Pvt. Ltd. vide amalgamation order passed by the Hon'ble Calcutta High Court dated 21.11.2016 and the fact was intimated to the AO vide letter dated 28.11.2016 which was duly acknowledged by the office of ITO, Ward-10(2), Kolkata. We also note that thereafter the copy of the order was also filed but that was filed subsequent to the date of the assessment order. However, in the first letter dated 28.11.2016 the assessee has requested the AO to find out the fact from Central Govt. Standing Counsel qua amalgamation having been approved by the Hon'ble Calcutta High Court w.e.f. the effective date 01.04.2015. The High Court of Kolkata vide order dated 21\" November 2016 had approved the scheme of amalgamation with effect from 1 April 2015 being the appointed date. ITA No.681/KOL/2023 4 Therefore, the order dated 30th December 2016 was passed in the name of non-existing company and hence the same is void. The present case in hand is covered by the judgement of ITAT Kolkata A Bench ITA No 994/KOL/2018 wherein another company ie Solvent Real Estate Pvt. Ltd was merged with Elite Realcon Private Limited under similar facts and circumstances. The Hon'ble ITAT Kolkata Bench has held that the assessment order passed by the AO in the name of non-existing entity is null and void ab initio. The appellant humbly requests that the ratio of the said judgement may be followed in the present case. The appellant would also like to rely on the following judgments: a) The decision of Supreme Court in Marshall Sons and Co (India) Ltd vs ITO, (1997) 223 ITR 809 has clearly held that in case of amalgamation, the computation of income as between the amalgamating and amalgamated companies should be with reference to the periods before and after the appointed day and not on the date on which the scheme itself is sanctioned by the Court as was wrongly understood by the Madras High Court. Hence there is no relevance for the effective date or the date of receipt of the certified copy of the order. The said order is attached. Various judicial decisions have held that once a company(transferor) has amalgamated with another company(transferee), and such fact has been brought to the notice of the assessing officer, tax assessment cannot be framed on transferor company. Consequently, the order passed in the name of non-existent company is void and may be quashed. a) The appellant would also like to rely on the decision of Hon'ble Supreme Court in the case of CITvs. Maruti Suzuki which rests on similar facts and circumstances. Accordingly, the appellant prays for full relief Thanking you, Yours faithfully (A.R.) 8. We have gone through the submission of the assessee and the orders of the lower authorities. At the outset, a perusal of the order of the Hon'ble Jurisdictional High Court of Calcutta in the Company Petition No.768 of 2016, shows that the assessee company M/s Solid Infracon Pvt. Ltd. is party No.12 in the said petition. A perusal of the page 27 of the said ITA No.681/KOL/2023 5 order in clause 18.4, provides for revising income tax return and TDS certificate, which reads as under :- 18.4 The Transferee Company is expressly permitted to revise its income tax returns and related TDS certificates and shall be entitled to claim refund, advance tax credits, etc upon this Scheme becoming effective and has expressly reserved the right to make such revisions in the income tax refunds and related TDS certificates and to claim refund, advance tax credits, etc pursuant to this Scheme. 9. A perusal of page 39 of the paper book, being the Schedule of assets, shows in the case of assessee i.e. Solid Infracon Pvt. Ltd. which reads as follows :- ITA No.681/KOL/2023 6 10. Now coming to the assessment order it is noticed that the notices had been issued on various dates before the order of the Hon'ble Jurisdictional High Court in regard to the amalgamation. This letter dated 28.11.2016 does not find any reference in the assessment order. Further the fact that the Form 35 has also been filed in the name of Solid Infracon Pvt.Ltd. shows that even when the appeal was filed the PAN had not been removed. Further a perusal of the order of the Hon'ble Jurisdictional High Court in the Company Petition, referred to supra, does not show if the assessee had intimated anything about the assessment proceedings pending. This being so, and also because substantial opportunities have been given to the AO to produce the records for verification before the Tribunal and the AO having failed to provide the information, in the interest of justice, the issues in this appeal are restored to the file of AO for readjudication after verification of the details. 11. Here we may mention that the assessee company did exist in the course of assessment proceedings and the irregularity in the assessment has taken place only after the date of amalgamation on account of the passing of the order in the name of assessee company instead of amalgamated company. This being so, respectfully following the principles laid down by the Hon'ble Orissa High Court in the case of Shivkumar Agrawal, reported in [1990] 186 ITR 374(Orissa), this issue is restored to the point of irregularity for readjudication and passing of fresh assessment order. ITA No.681/KOL/2023 7 12. In the result, appeal of the assessee is partly allowed for statistical purposes. Order dictated and pronounced in the open court on 08/05/2025. Sd/- (SANJAY AWASTHI) Sd/- (GEORGE MATHAN) लेखा सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य / JUDICIAL MEMBER कोलकाता Kolkata; ददनाांक Dated 08/05/2025 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतललपप अग्रेपर्त/Copy of the Order forwarded to : sआदेशधिुसधर/ BY ORDER, (Assistant Registrar) Income Tax Appellate Tribunal, Kolkata 1. अपीलार्थी / The Appellant- 2. प्रत्यर्थी / The Respondent- 3. आयकर आयुक्त(अपील) / The CIT(A), 4. आयकर आयुक्त / CIT 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण, कोलकाता / DR, ITAT, Kolkata 6. गार्ड फाईल / Guard file. सत्यापपत प्रतत //True Copy// "