AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 402
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....al ground of cross objection which is as follows :- "The notice u/s. 153A in the name of M/s. ADR Home Décor Pvt. Ltd. and consequent assessment in this name are illegal and need to be quashed." 5. Learned Departmental Representative raises a preliminary objection to the cross objection, and prays that it should be dismissed in limine. Her objections are summarized in a note filed by her, as follows :- "1.1 It needs to be appreciated that the CO filed in Revenue' ITA 4314/DEL/2011 needs to be dismissed for the following reasons: 1.2 In Form No.36A (CO form) in column No.5 date of receipt of notice of appeal filed by the Revenue is shown to be 28.09.2011 and it is not understood as to how the assessee received this notice prior to Revenue's filing of appeal on 29.09.2011. Since no evidence (like Envelop etc. RPAD etc.) has been produced by the CO-Object the disclosure made in Form No.36A has to be held to be not true and since it goes to the root (maintainability) of the matter it (CO) needs to be dismissed. Kindly appreciate that as per para 18 (page 21) of the ITAT Manual the communication of notices is always by Post (that too by RPAD) and hence assessee has to support ....
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....erification clause in the cross objection, is not a non-actor in the present proceedings. Learned counsel then further submits that, without prejudice to his submissions, nothing really turns on these pedantic and hyper technical objection since the substantive issue raised in the cross objection can also be taken out, during appellate hearing, under rule 27 of the Appellate Tribunal Rules 1962, and the assessee has also taken up this issue by an application in this regard. 7. We have heard the rival contentions on this preliminary issue, perused the material on record and duly considered facts of the case in the light of applicable legal position. 8. We find that in column 5 of the cross objection filed by the assessee, "Date of receipt of notice of appeal filed by the appellant to the Tribunal" is stated to be 28.09.2011 and the cross objection is filed on 28.10.2011. This date is clearly incorrect as the date on which the appeal was filed, as per our records, was 29.09.2011 and there was no way in which the assessee could have been put to notice, in this regard, by the Tribunal on 28.09.2011. However, nothing really turns on this error since this information is only to ascerta....
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....the virtue of amalgamation order dated 11.09.2007 passed by Hon'ble Delhi High Court, the said company (i.e. ADR Home Décor Pvt. Ltd.) is merged with Mahagun India Pvt. Ltd, w.e.f. 01.04.2007. Our attention is also invited to Hon'ble jurisdictional High Court's judgement dated 8th July, 2014, in the case of CIT vs. Dimension Apparel Pvt. Ltd. (2014 TIOL 1897 HC DEL IT), wherein it is held that assessment on amalgamating company is a legal nullity and that participation by amalgamating company is irrelevant. There is no estoppel against a statute. We are thus urged to quash the assessment as legal nullity. It is also submitted that the impugned assessment being a legal nullity, there is no occasion to examine merits of the additions made during the impugned assessment. 10. Learned Departmental Representative, however, vehemently opposed the submission so made by the assessee. She also filed a written note in support of her contentions which is reproduced below for ready reference: "2.4. Likewise, in so far as Ground No.3 where the assessee says "that in the facts & circumstances the impugned assessment order is bad in law" is concerned it also needs to be dismissed for the ....
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....urther. In this context, reliance is placed on the Supreme Court judgment in Hira Lal vs. Kalinath AIR 1962 SC 199 where it was held that if objection to jurisdiction is waived the party is precluded from raking it up later. 3.6. Fifthly, the Ground raised by way of additional ground is purely a legal ground (not attributable to taxability of some item of income) it cannot be raised in the CO. It is a settled position of law that the Ground raised in the CO about the assessment in the hands of the non-existent assessee is purely an independent question of law which cannot form part of the basis for filing the CO especially when it was never adjudicated upon by the CIT(A). In this context, support is drawn from ITAT, Ahmedabad decision in DCIT, Central Circle 2(2), Ahmedabad v. Sandip M. Patel {22 Taxmann.com 288 (Ahd) where it was held that independent pure legal ground cannot be raised by way of CO and for that only remedy is to file appeal. In short, for this reason also the additional ground needs to be dismissed." 11. In rejoinder, learned counsel reiterated his submission and pointed out that the issue in the Cross Objection is squarely covered by Hon'ble jurisdictional High....
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....gment that "the transferor-company shall, with effect from the transfer date, be deemed to have carried on its business for and on behalf of the transferee-company and, accordingly, the profits and losses of the transferor- company for the period commencing from the transfer date, shall be deemed to be the profits or losses of the transferee-company and shall be available to the transferee-company for disposal in any manner." 12. That case, however, involved a controversy about the effective date of amalgamation, and not about whether an assessment of income can be made on an amalgamated company. In fact, the logic of the Madras High Court's decision undermines the Appellants' case. The Madras High Court found for the Revenue, because, in its opinion, the effective date of amalgamation came after the date of the assessment. The assessee argued that the date of amalgamation was January 1, 1982, whereas the assessment order was dated November 25, 1984. 13. The Madras High Court held that "according to the records maintained pursuant to the provisions of the Companies Act, the subsidiary company had continued to remain in existence up to January 21, 1986, even long after January 1, ....
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....e other aspect is as to the applicability of Section 292-B of the Act, which reads as follows: "292B. No return of income assessment, notice, summons or other proceedings furnished or made or issue or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reasons of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act." 18. The Revenue argues that the assessment was in substance and effect in conformity with the Act, because the Assessing Officer had used correct nomenclature in writing the name of the Assessee, along with the fact that the company had amalgamated, as well as the correct address of the amalgamated company. Consequently, they contend that "the mere omission, if any on the part of the AO to mention the name of the appellant/amalgamated company in place of M/s Dimension Apparel... [is]... therefore a procedural defect." 19....