Durja Vinimay Pvt. Ltd. Vs PCIT (ITAT Kolkata)
The issue under consideration is whether Passing of revisionery order against amalgamating company which was not in existence on the date of order is justified in law?
In the present case, the impugned revisional order(s) u/s. 263 of the Act has been passed by the ld. Pr. CIT against the aforesaid captioned assessee’s who are not existing in the eyes of law. Moreover, notice informing proposed action of revision u/s. 263 of the Act was issued to them after they/assessee’s had already amalgamated with different legal entities as per NCLT order. The impugned orders have been passed by the ld. Pr. CIT after the assessee’s informed their respective AO’s about the passing of NCLT order, by virtue of which the assessee’s/company(ies) had merged with the other corporate entities.
High Court states that, when the department was aware of the dissolution of assessee’s companies, it was incumbent upon the Ld. Pr. CIT to take notice of this fact and substitute the successor company while passing the impugned order, after giving opportunity of hearing to amalgamated company as envisaged under section 263 of the Act. And since the aforesaid action has not been admittedly done by the Ld. Pr. CIT, the impugned order passed against the non-existing entities, which ceased to exist on the date of the impugned order is void. Relying on the decision of the Hon’ble Apex court in Maruti Suzuki (Supra) and Spice Infotainment Ltd.(supra), HC note that the impugned order passed under section 263 0f the Act by the Ld. Pr. CIT against the amalgamating companies which were not in existence on the date of the impugned order is a nullity and, therefore, they are inclined to quash all the impugned orders as shown in the captioned appeals.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
All the aforesaid appeals are preferred by different assessee’s (as captioned in the cause list above) are against the separate orders of Ld. Pr.CIT, Kolkata-4, dated 12-03-2019, 14-03-2019 for the assessment year 2012-13.
2. Main grievances of the assessee’s/ corporate legal entities are that the impugned revisional order passed under section 263 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) by the ld. Pr.CIT, Kolkata against them are non est in the eye of law, since they were not existing in the eyes of law by virtue of being merged with other legal entities as per the Hon’ble National company Law Tribunal (in short hereinafter “NCLT”) order. The learned AR in order to assist the Bench to understand the facts necessary to decide the legal issue has filed before us the following charts in respect of all the five different assessee’s/legal entities, from which we can get a bird’s eye view about the facts necessary to adjudicate the legal issue:-
ITA No. 1408/Kol/2019 A.Y 2012-13
M/s. Durja Vinimay Pvt. Ltd [ Merged with Nihon Impex Pvt. Ltd on 21- 12-2018
