Case Law Details

Case Name : DCIT Vs. First Future Agri and Developers Ltd. (ITAT Mumbai)
Appeal Number : ITA No. 6033/Mum/2016
Date of Judgement/Order : 27/02/2019
Related Assessment Year : 2012-13
Courts : All ITAT (7317) ITAT Mumbai (2108)

DCIT Vs. First Future Agri and Developers Ltd. (ITAT Mumbai)

Conclusion:  Since AO had completed the assessment in the name of a company which had merged and was not in existence on the date the assessment order was passed, therefore, the assessment was invalid and the same was not a curable defect under section 292B.

Held: On approval of the scheme of amalgamation, assessee stood amalgamated with UTVSC Ltd and all relevant facts relating to the amalgamation of assessee was brought to the notice of AO in the course of the assessment proceedings for the impugned assessment year. AO however, still proceeded to complete the assessment in the name of assessee by an order passed on 3rd March 2015, by which time assessee had ceased to exist. It was held  in Spice Infotainment Ltd. v/s CIT, [2012] 247 CTR (Del.) 500 (Del.) that assessment order passed in the name of the erstwhile company after its amalgamation / merger by virtue of an order of amalgamation passed by the High Court was invalid. The aforesaid decision of the Hon’ble Delhi High Court was upheld by the Hon’ble Supreme Court while dismissing the SLP of the Department in Civil Appeal no.285/ 2014, dated 2nd November 2014. As AO had completed the assessment in the name of a company which had merged and was not in existence on the date the assessment order was passed and that too after AO was provided with all documentary evidences during the assessment proceedings to demonstrate that the company had been amalgamated with UTVSC Ltd, therefore, the assessment was invalid and the same was not a curable defect under section 292B.

FULL TEXT OF THE ITAT JUDGEMENT 

Aforesaid appeal has been filed by the Revenue challenging the order dated 26th July 2016, passed by the learned Commissioner (Appeals)16, Mumbai, for the assessment year 201213.

2. The issue raised by the Department in the present appeal precisely is, whether the learned Commissioner (Appeals) was justified in holding the assessment order passed to be badinlaw on the reasoning that it was passed against a company not in existence?

3. Brief facts are, the assessee company was engaged in the business of real estate developer. For the assessment year under dispute, the assessee had filed its return of income on 28th September 2012, declaring total income of ` 5,73,16,07 1. During the pendency of the assessment proceedings for the impugned assessment year, the assessee amalgamated / merged with UTV Software Communications w.e.f. 1st April 2013, by virtue of order dated 11th April 2014, passed by the Hon’ble Jurisdictional High Court in Company Petition no.788 of 2013 and Ors., approving the scheme of amalgamation. Though, the aforesaid fact relating to amalgamation/merger of the assessee with UTI Software Communications Ltd. was brought to the notice of the Assessing Officer in the course of the assessment proceedings, however, he passed the impugned assessment order in the name of the assessee company on 3rd March 2015.

4. The assessee challenged the aforesaid assessment order before the first appellate authority, inter-alia, on the ground that the assessment order passed in the name of a non-existent company is invalid. The learned Commissioner (Appeals) after proper examination of facts and materials brought on record found that though all relevant facts relating to the amalgamation/merger of the assessee with UTV Software Communications Ltd. was brought to the notice of the Assessing Officer through supporting documentary evidences, however, the Assessing Officer still proceeded to pass the assessment order in the name of the assessee, despite its merger with UTV Software Communications Ltd. Thus, learned Commissioner (Appeals) ultimately concluded that the Assessing Officer having passed the assessment order in the name of a nonexistent company, such order is badinlaw. Being aggrieved with the aforesaid decision of the first appellate authority, the Department is in appeal before the Tribunal.

5. The learned Departmental Representative submitted, since, the return of income was filed in the name of the present assessee, the Assessing Officer was justified in completing the assessment in the name of the assessee. He submitted, if at all, there is any mistake committed by the Assessing Officer in not mentioning the name of the successor company in the assessment order, it is merely a technical error which can be ignored / rectified under section 292B of the Act. He submitted, since, there is no prejudice caused to the assessee by the reason of nonmentioning of the successor company’s name in the assessment order, learned Commissioner (Appeals) was not justified in declaring the assessment order to be invalid. In support of this contention, the learned Departmental Representative relied upon the decision of the Hon’ble Delhi High Court in Skylight Hospitality LLP v/s ACIT, judgment dated 2nd February 2018, in W.P. (C) no.10870/2017, and C.M. no.44503/2017. He submitted, the aforesaid decision of the Hon’ble Delhi High Court was upheld by the Hon’ble Supreme Court while dismissing the SLP fled by the said assessee. In this context, he also referred to the order of the Hon’ble Supreme Court in SLP(C) no. 7409/20 18.

6. The learned Authorised Representative strongly relying upon the observations of learned Commissioner (Appeals) submitted, after amalgamation of the assessee with UTI Software Communications Ltd. w.e.f. 1st April 2013, upon approval of the scheme of amalgamation by the Hon’ble Jurisdictional High Court in order dated 11th April 2014, the assessee stood amalgamated from the appointed day i.e., 1st April 2013. He submitted, from that date the assessee ceased to exist in the eyes of law. He submitted, in response to the statutory notices issued under section 143(2) / 142(1) of the Act, the assessee has time and again intimated the Assessing Officer regarding its amalgamation with UTV Software Communications Ltd. and has also furnished all documentary evidences relating to the amalgamation, including, the Hon’ble High Court’s order. In this context, he drew our attention to the letter dated 31st July 2014, filed before the Assessing Officer in the course of the assessment proceedings. He submitted, the assessee, vide letter dated 5th August 2014, has surrendered its PAN card upon its merger with UTV Software Communications Ltd. He submitted, on 2nd March 2015, UTV Software Communications Ltd. also brought the facts relating to the amalgamation of the assessee to the notice of the Assessing Officer along with documentary evidences. Thus, he submitted, the Assessing Officer was very much aware of the facts relating to amalgamation of the assessee with UTV Software Communications Ltd. However, in spite of that the Assessing Officer proceeded to pass the impugned assessment order on 3rd March 2015, in the name of the assessee. He submitted, the assessee has also complied to all the conditions imposed by the Hon’ble Jurisdictional High Court by intimating the Registrar of Companies (ROC) in the prescribed manner. In this context, he drew our attention to the Form no.INC28 filed before the ROC. The learned Authorised Representative submitted, since the error committed by the Assessing Officer is a jurisdictional error, it will not be covered under section 292B of the Act. Therefore, learned Commissioner (Appeals) was justified in holding the assessment order to be badinlaw. In support of his contention, the learned Authorised Representative relied upon the following decisions:

i) Spice Infotainment Ltd., v/s CIT, [2012] 247 CTR 500 (Del.);

ii) CIT v/s Spice Infotainment Ltd., ITA no.285 ITR 2014, dated 02.11.2017;

iii) ACIT v/s Neha Enterprises, ITA no.3666/Mum./2015, etc., dated 20.12.2017;

iv) Maharashtra Elektrosmelt Ltd. v/s DCIT, ITA 7601/Mum./2013, dated 16.06.2017;

v) Westlife Development Ltd. v/s PCIT, [2017] 88 com439 (Mum.) (Trib.); and

vi) Instant Holdings Ltd. v/s ACIT, ITA no.4593/Mum./2011,dated 09.03.2916.

7. As regards the decision of the Hon’ble Delhi High Court in Skylight Hospitality LLP (supra) cited by the learned Departmental Representative, the learned Authorised Representative submitted, the decision is factually distinguishable, hence, will not apply to the present case. In this context, he relied upon the following decisions:

i) Shri Ishwarbhai Maganbhai Desai v/s ITO, ITA no.90/Ahd./2017, dated 23.04.2018;

ii) Akzo Nobel India Ltd. v/s DCIT, IT no.387/Pun./2016, dated 05.06.2018; and

iii) Genpact Infrastructure (Kolkata) Pvt. Ltd. v/s DCIT, IT no.1 98/Del./201 5, dated 27.04.2018.

8. We have considered rival submissions and perused material on record. Uncontroverted facts, as setout in the impugned order of the learned Commissioner (Appeals) and also emanating from record reveals that the assessee filed a petition before the Hon’ble Jurisdictional High Court for its amalgamation with UTV Software Communications Ltd. The Hon’ble Jurisdictional High Court, vide order dated 11th April 2014, approved the scheme of amalgamation and the assessee stood amalgamated with UTV Software Communications Ltd. from the appointed day of 1st April 2013. It is evident, all relevant facts relating to the amalgamation of the assessee with UTV Software Communications Ltd. was brought to the notice of the Assessing Officer in the course of the assessment proceedings for the impugned assessment year. In fact, not only the assessee furnished before the Assessing Officer the order of amalgamation passed the Hon’ble Jurisdictional High Court but all other documentary evidences relating to its amalgamation with UTV Software Communications Ltd. In fact, vide letter dated 5th August 2014, filed before the Assessing Officer the assessee surrendered its PAN card consequent upon its amalgamation / merger with UTV Software Communications Ltd. Even, the successor company, UTV Software Communications Ltd., also filed documentary evidences before the Assessing Officer intimating the facts relating to merger of the assessee. In spite of all the evidences available before him, the Assessing Officer still proceeded to complete the assessment in the name of the assessee on by an order passed on 3rd March 2015, by which time the assessee has ceased to exist. It is relevant to observe, in compliance to the directions of the Hon’ble Jurisdictional High Court the assessee had filed Form no.INC28, before the ROC communicating the order of amalgamation passed by the Hon’ble Jurisdictional High Court and also intimating about its merger with UTV Software Communications Ltd. In fact, a screen shot of the company master data available in the record of ROC, a copy of which is at Page 44 of the paper book, clearly reveals that the status of the company has been notified as “amalgamated”. The aforesaid facts clearly demonstrate, not only the fact that the assessee intimated all relevant facts relating to its amalgamation with UTV Software Communications Ltd. to the Assessing Officer in the course of assessment proceedings for the impugned assessment year, but also furnished all necessary evidences in support of its claim. Thus, by the time the Assessing Officer passed the impugned assessment order, the assessee company has ceased to exist in the eyes of law. Therefore, it is apparent, the Assessing Officer has passed the impugned assessment order against a nonexistent company. Therefore, the issue which requires to be examined is, whether the assessment order passed in the name of a nonexistent company is valid? Legal position in this regard is fairly well settled. The Hon’ble Delhi High Court in Spice Infotainment Ltd. v/s CIT, [2012] 247 CTR (Del.) 500 (Del.) has held that assessment order passed in the name of the erstwhile company after its amalgamation / merger by virtue of an order of amalgamation passed by the High Court is invalid. The aforesaid decision of the Hon’ble Delhi High Court was upheld by the Hon’ble Supreme Court while dismissing the SLP of the Department in Civil Appeal no.285/ 2014, dated 2nd November 2014. The other decisions cited by the learned Authorised Representative also express identical view. As regards the decision rendered by the Hon’ble Delhi High Court in Skylight Hospitality LLP (supra), the facts are completely different. In case of Skylight Hospitality LLP (supra), the assessee had challenged the notice of re opening issued under section 148 of the Act, wherein, the name of the erstwhile company was mentioned. The Hon’ble High Court held that since the assessment proceedings had not completed, the mistake / error in the notice cannot invalidate the proceeding in view of section 292B of the Act. However, the facts are different in the present appeal, as the Assessing Officer has completed the assessment in the name of a company which has merged and is not in existence on the date the assessment order was passed. That too, even after the Assessing Officer was provided with all documentary evidences during the assessment proceedings to demonstrate that the company has been amalgamated with UTV Software Communications Ltd. That being the case, neither the aforesaid decision of the Hon’ble Delhi High court nor the provisions contained under section 292B of the Act would come to the rescue of the Department. In fact, different Benches of the Tribunal have expressed the aforesaid view after distinguishing the factual position in case of Skylight Hospitality LLP (supra). In this context, we may refer to the following decisions:

i) Shri Ishwarbhai Maganbhai Desai v/s ITO, ITA no.90/Ahd./2017, dated 23.04.2018;

ii) Akzo Nobel India Ltd. v/s DCIT, IT no.387/Pun./2016, dated 05.06.2018; and

iii) Ganpat Infrastructure (Kolkata) Pvt. Ltd. v/s DCIT, IT no.198/Del./2015, dated 27.04.2018.

9. Therefore, considering the factual matrix relating to the disputed issue in the light of ratio laid down in the judicial precedents cited before us, we uphold the decision of the learned Commissioner (Appeals). Grounds raised are dismissed.

10. In the result, Revenue’s appeal is dismissed.

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