DCIT Vs Mapsa Infra (P) Ltd (ITAT Delhi)
The issue under consideration is whether Assessment order u/s 153C issued in the name of Amalgamated Company will be considered as valid?
ITAT states that, the framing order in the name of non-existent entity is not a procedural defect curable under section 292B of the Act or under any other provision of the Act but it is a jurisdictional defect and hence any order passed in the name of non-existing person is void ab initio. Further, the Hon’ble Supreme Court in the case of Maruti Suzuki India Ltd. 107 Taxman 375 vide order dated July 25, 2019 held that where despite the fact that the AO was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice issued in the earlier name in the consequent assessment conducted cannot be held to be valid. Respectfully, following the ratio of the Apex Court, ITAT hereby decline to interfere with the order of the Id. CIT (A). In the result, the appeals of the Revenue are dismissed.
FULL TEXT OF THE ITAT JUDGEMENT
This appeal by Revenue has been directed against the Order of the Ld. CIT(A)-28, New Delhi, Dated 27.02.2017, for the A.Y. 2009-2010, on the following grounds :
1. “That the Id. CIT(A) erred in law and on facts in quashing the order of the Assessing Officer without properly appreciating the facts and circumstances of the case on account of chance of name of company from M/s Mapsa Infra Pvt. Ltd. to Mapsa Tapes Pvt. Ltd.
2. That the Ld. CIT(A) erred in law and on facts in relying only on assessee’s submission that assessee has intimated the department of such amalgamation- through letter dated 18.02.2015 and 18.01.2016. The ld. CIT(A) should had remanded back to the assessing officer for verification of assessee’s submission whereas in the fact of case no such intimation were filed during the assessment proceedings before the AO.
3. That the Ld. CIT(A) erred in law and on facts in deleting the addition of Rs. 10,25,00,000/- made on account of bogus share capital without properly appreciating the facts and circumstance of the case.
4. That the Ld. CIT(A) erred in law and on facts in deleting the addition of Rs. 6,15,000/- made on account of unaccounted commission paid without properly appreciating the facts and circumstance of the case.
5. (a) The order of the CIT(Appeals) is erroneous and not tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.”
2. Briefly the facts of the case are that in this case search and seizure action under section 132 of the I.T. Act, 1961, was carried out on 20.01.2014 in the business premises of the assessee. Accordingly, notice under section 153A was issued to the assessee and in compliance to the same, return declaring income of Rs.40,49.370/- was filed. The assessment under section 153A/143(3) of the I.T. Act, 1961 was completed vide Order Date 31.03.2016 at the total income of Rs.10.71 crores. The assessment was passed in the name of [ M/s. Mapsa Infra Pvt., Ltd., ]. The assessee submitted before the Ld. CIT(A) that assessment has been framed in the name of M/s. Mapsa Infra Pvt., Ltd., an entity, which was non-existent on the day of passing of the Order because of the fact that such Company stood amalgamated with M/s. Mapsa Tapes (P) Ltd., vide Order of the Hon’ble High Court Dated 21.09.2015 w.e.f. 01.04.2014, as such, assessment framed under section 153A/143(3) of the I.T. Act, 1961, in the name of a non-existent entity is nullity and liable to be quashed. Several case Law in support of the above contention was relied upon. The Ld. CIT(A) accepted the contention of assessee that Order have been framed in the name of a non-existent entity which had already dissolved and struck-off in the Register of Registrar of Companies under the Companies Act. Appeal of assessee was accordingly allowed.
3. Learned Counsel for the Assessee, at the outset, submitted that the Departmental Appeals on the same issue in the case of same assessee for A.Ys. 2009-2010 and 20102011 have been decided by ITAT, A-Bench in ITA.Nos.2666, 2667 and 2669/Del./2017 etc., vide Order Dated 04.09.2019, the Departmental Appeals have been dismissed. The Order of the Tribunal is reproduced as under :
“IN THE INCOME TAX APPELLATE TRIBUNAL DELHI
BENCHES ‘E’, NEW DELHI
Before Sh. Bhavnesh Saini, Judicial Member
Dr. B. R. R. Kumar, Accountant Member
ITA No. 2666/Del/2017 : Asstt. Year : 2009-10
ITA No. 2667/ Del/2017 : Asstt. Year : 2010-11
ITA No. 2669/Del/2017 : Asstt. Year : 2010-11
