DCIT, New Delhi V. M/s. Shantikunj Investment Pvt. Ltd., New Delhi

MA 376/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9135 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NISCHAY KHANDELWAL
• Section: 254(2); 92

Judgement Text

1 M.A NO. 376/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER MA NO. 3 76/DEL/2018 IN (I.T.A. NO. 254//DEL/2 015 (A.Y 2005-06) ACIT CIRCLE-11(2) NEW DELHI (APPLICANT) VS M/S SHANTI KUNJ INVESTMENT (P) LTD. (NOW KNOWN AS M/S HYDEL CONSTRUCTION PVT. LTD.) C-287, DEFENCE COLONY, NEW DELHI-110024 PAN: AAECS8864K (RESPONDENT) APPLICANT BY SH. R. K. GUPTA, SR. DR RESPONDENT BY SH. NISCHAY KHANDELWAL, CA ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATIONS IS FILED BY THE REV ENUE IN RESPECT OF ORDER DATED 02.01.2018 PASSED BY THE TRIBUNAL. 2. THE LD. DR STATED AS UNDER:- IN THE INSTANT CASE A.O PASSED ORDER U/S 147/143( 3) OF THE ACT AT AN INCOME OF RS. 4,74,14,300/- ON 19.03.2013. BEING AG GRIEVED THE ASSESSEE CARRIED THE MATTER TO LD. CIT (A) AND CHALLENGED TH E VALIDITY OF THE ASSESSMENT FRAMED ON A NON-EXISTING COMPANY. ASSESSEE COMPANY NAMELY M/S SHANTIKUNJ INVESTMENT (P) LTD. (NOW KNOWN AS M/S HYDEL CONSTRU CTION PVT. LTD) WAS DATE OF HEARING 11.06.2021 DATE OF PRONOUNCEMENT 10.08.2021 2 M.A NO. 376/DEL/2018 AMALGAMATED WITH M/S HYDEL CONSTRUCTION PVT. LTD. V IDE HONBLE HIGH COURT ORDER DATED 17.03.2008. LD. CIT (A) ALLOWED THE APP EAL OF THE ASSESSBE STATING THAT THE MAINTAINABILITY OF THE ASSESSMENT ORDER IT SELF IS HELD TO BE A NULLITY. HONBLE ITAT IN ITS ORDER BEARING ITA NO. 254/DEL/ 2014 DATED 02.01.2018 DISMISSED THE APPEAL OF THE REVENUE. HOW EVER WHILE DECIDING THE APPEAL , THE TRIBUNAL HAS RELIED UPON WRONG FACTS. IN PARA NO. 8 OF THE SAID ORDER LD. ITAT REFERRED ASSESSEE AS M/S HEARTLAND D ELHI TRANSCRIPTION AND SERVICES PVT. LTD. AMALGAMATED WITH M/S HEARTLAND I NFORMATION AND CONSULTANCY PVT. LTD , HOWEVER IN THE PRESENT CASE ASSESSEE IS M/S SHANTIKUNJ INVESTMENT (P) LTD. (NOW KNOWN AS M/S HYDEL CONSTRU CTION PVT. LTD). IN THE SAME PARA NO. 08 HONBLE ITAT FURTHER GOES ON DISCU SSING THE FACTS OF THE CASE OF M/S HEARTLAND DELHI TRANSCRIPTION AND SERVICES PVT. LTD. AND M/S HEARTLAND INFORMATION AND CONSULTANCY PVT. LTD WHIC H ARE NOWHERE RELEVANT TO THE INSTANT CASE. HONBLE ITAT PASSED ORDER DATED 02.01.2018. RELEVA NT FACTS OF THE ORDER ARE BEING REPRODUCED BELOW: WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE M/S HEARTLAND INFOR MATION AND CONSULTANCY PVT. LTD. (HICS) IN PURSUANT TO THE ORD ER OF THE HONBLE DELHI HIGH COURT DATED 25 TH JULY, 2008 AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE AO (INCOME TAX OFFICER, WARD- 12 (3), DIRECTOR OF INCOME TAX-12 DELHI AND COMMISSIONER OF INCOME TAX- 4, NEW DELHI VIDE S EPARATE LETTERS EACH DATED 19 TH OCTOBER, 2008 ( COPIES OF WHICH ARE PLACED AT PAGE 900 TO 907 OF THE ASSESSEE S PAPER BOOK) AND ORDER OF THE HONBL E DELHI HIGH COURT DATED 25 TH JULY, 2008 FOR THE AFORESAID AMALGAMATION IS PLACE D AT PAGE NO. 908 TO 918 OF THE ASSESSEES PAPER BOOK. IT IS ALSO NOTICED THAT THE AO REFERRED THE MATTER U/S 92 CA OF THE ACT OF THE AMA LGAMATED ASSESSES COMPANY HDTS TO THE TPO WHO PASSED THE ORDER DATED 25.10.2010 ON THE 3 M.A NO. 376/DEL/2018 AFORESAID ENTITY. THE AO ALSO PASSED THE ASSESSMENT ORDER DATED 22.02.2011 U/S 144C/143(3) OF THE ACT ON THE AFORES AID ENTITY I.E. HDTS WHICH AMALGAMATED IN HICS, THEREFORE, IT IS CRYSTAL CLEAR THAT THE ENTITY HDTS WAS NOT IN EXISTENCE WHEN THE TPO AS WELL AS T HE AO PASSED THEIR RESPECTIVE ORDER. AFTER GOING THROUGH THE FACTS OF THE CASE IT WAS FO UND THAT FACTS STATED IN ABOVE PARA ARE NOWHERE RELATED WITH THE INSTANT CAS E. PLAIN READING OF THE PARA MAKES IT EXPLICIT THAT HONBLE ITAT HAS RELIED UPON THE FACTS WHICH DOES NOT PERTAINS TO THE ASSESSEE SINCE THE MISTAKE IS APPARENT FROM THE RECORDS, HEN CE IN CONSIDERING FACTS AND CIRCUMSTANCES OF THE CASE, A MISCELLANEOU S APPLICATION IS BEING FILED U/S 254(2) OF THE I.T ACT, 1961 BEFORE HONBLE ITAT AFTER SOLICITING PRIOR APPROVAL OF PRINCIPAL CIT, DELHI-04, NEW DELHI (COP Y ENCLOSED FOR READY REFERENCE). IT IS FURTHER PRAYED THAT HONBLE TRIBU NAL HAS NOT RELIED UPON A FACT THAT THE AO HAD CLEARLY RECORDED THAT M/S SHANTIKUN J INVESTMENT PVT. LTD, NOW KNOWN AS M/S HYDEL CONSTRUCTION PVT. LTD. IN TH E ASSESSMENT ORDER IN THE COLUMN DESCRIBING THE NAME OF THE ASSESSEE. THE HONBLE TRIBUNAL IS REQUIRED TO DECIDE THE CASE AFTER RELYING UPON THE CORRECT FACTS OF THE CASE AS STATED ABOVE. 3. THE LD. AR RELIED UPON THE ORDER DATED 02.01.201 8. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT IN THE PRESENT MISC. APPLICATION, THE REVENUE SUBMITTED THAT ORDER DATED 02.01.2018 PASSED BY THE TRIBUNAL, THE TRIBUNAL MADE AN OBSERVATION IN PARA 8 REFERRED ASSESSEE AS M/S HEARTLAND DELHI TRANSCRIPTION AND SERVICES PVT. LTD. AMALGAMATED WI TH M/S HEARTLAND INFORMATION AND CONSULTANCY PVT. LTD, HOWEVER IN TH E PRESENT CASE ASSESSEE IS M/S SHANTIKUNJ INVESTMENT (P) LTD. (NOW KNOWN AS M/ S HYDEL CONSTRUCTION PVT. LTD). IN THE SAME PARA NO. 08 TRIBUNAL HAS FUR THER DISCUSSED THE FACTS OF 4 M.A NO. 376/DEL/2018 THE CASE OF M/S HEARTLAND DELHI TRANSCRIPTION AND SERVICES PVT. LTD. AND M/S HEARTLAND INFORMATION AND CONSULTANCY PVT. LTD WHIC H ARE NOT RELEVANT TO THE INSTANT CASE. FROM THE PERUSAL OF THE ORDER DATED 0 2.01.2018, IT SEEMS THAT THERE IS A MISTAKE IN PARA 8 OF THE ORDER AND WE HE REBY RECTIFY THE SAME BY ALLOWING THIS MISC. APPLICATION. THE MODIFIED PARA 8 HAS TO BE READ AS UNDER: 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE ASSESSEE COMPANY HAD ALREADY AMALGAMATED W ITH M/S HYDEL CONSTRUCTIONS PVT. LTD. AND THE REGISTRAR OF COMPAN IES UPDATED ON 02.06.2008, ON THE BASIS OF ORDER OF THE HONBLE DE LHI HIGH COURT IN C.P. NO. 297/2007 DATED 17.03.2008 CERTIFYING THE AMALGAMATI ON OF THE ASSESSEE I.E. M/S SHANTIKUNJ INVESTMENT (P) LTD. WITH M/S HYDEL C ONSTRUCTIONS PVT. LTD. AND THOSE FACTS WAS BROUGHT TO THE NOTICE OF THE AS SESSING OFFICER. HOWEVER, THE ASSESSING OFFICER HAD CHOSEN TO PROCEED FURTHER IN THE CASE KNOWING WELL THAT AS ON THE DATE, THE ASSESSEE COMPANY WAS NON-E XISTING. THUS, THE CIT(A) HAS RIGHTLY ANNULLED ASSESSMENT BY HOLDING THE SAME TO BE A NULLITY. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER DATED 19.03.2013 ON THE AFORESAID ENTITY I.E. M/S SHANTIKUNJ INVESTMENT (P) LTD. WHICH AMALGAMATED IN M/S HYDEL CONSTRUCTIONS PVT. LTD., THEREFORE, IT IS CRYSTAL CLEAR THAT THE ENTITY M/S SHANTIKUNJ INVESTMENT (P) LTD. WAS NOT IN EXISTENCE WHEN THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER. 5. IN RESULT, MISC. APPLICATION FILED BY THE REVEN UE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF AUGUST, 2021 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 10/08/2021 R. NAHEED COPY FORWARDED TO: 5 M.A NO. 376/DEL/2018 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI