AI Drafter 
TaxTMI 
TaxTMI 
2016 (4) TMI 1130
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..../s 143(3) of the Act in the case of a company, which is not in existence as on the date of assessment since the same has been merged with M/s. Orbit Corporation Ltd, which is bad in law and null & void as per the provisions of law." 3. Briefly stated relevant facts necessary for adjudication of the above legal ground include that M/s. Orbit Buildcon & Realty Pvt Ltd (OB&RPL) and M/s. Orbit Shelters Pvt Ltd (OSPL) filed their returns of income for the AY 2007-08. Assessment in the case of OB&RPL was completed on 28.11.2008 u/s 143(3) of the Act. Subsequently, consequent to the search action u/s 132 of the Act, assessment of the assessee was completed on 27.12.2011 u/s 153A r.w.s 143(3) of the Act. Similarly, assessment in the case of OSPL for the AY 2008-2009 was completed on 27.12.2011 u/s 153A r.w.s 143(3) of the Act. Meanwhile, the said assessees were amalgamated as M/s. Orbit Corporation Limited (OCL). In this regard, the relevant scheme of amalgamation got approval of the Hon'ble High Court of judicature at Bombay vide Company Petition No.869 connected with Company Application No.930 of 2007; Company Petition No.866 connected with Company Application No.931 of 2007; Company ....
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.... held that AO is justified in passing order u/s 143(3) r.w.s 153A of the Act. Accordingly, this ground of appeal is hereby dismissed." 5. As evident from the above, Ld Counsel for the assessee submitted that the CIT (A) dismissed the legal ground essentially stating that the judgment of the Hon'ble Bombay High Court dated 07.12.2007, which is subsequent in time qua the above said dates on the assessment orders for the assessment years involved. Further, assessee filed written submissions addressing the list of cases which were close to the facts of the present case and also submitted that the identical issue was decided in favour of the assessee and the assessment orders made in the names of the amalgamating companies, though the assessment years involved are earlier to the date of judgment of the Hon'ble High Court, were quashed. Further, Ld Counsel for the assessee submitted that since OB&RPL and OSPL were merged on the date of issue of notices u/s 143(2) and u/s 153A of the Act with OCL, and once the company merged with another company, the former got dissolved and ceased to exist. For this proposition, he relies on the judgment of the Hon'ble Supreme Court in the case of Sar....
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.... the same page and submitted that the identity of the assessee qua the said PAN relates to the OB&RPL and not the OCL and not to the amalgamated company-OCL. In other two appeals, assessments were made undisputedly in the names of OB&RPL and OSPL. The names of the successor company do not appear beside the OSPL. We verified the said PANs and found they belong to amalgamating companies. On this issue, Ld Counsel for the assessee brought our attention to the judgment in the case of Dimension Apparel Pvt Ltd (supra) and submitted that the argument was considered and the Hon'ble High Court held that it would not make any difference so long as the assessments were completed in the names of the amalgamating companies. The Hon'ble High Court in that case dismissed the Ld DR's argument that revolved around perception of the assessee in the assessment and the curability of the said defect u/s 292B of the Act. The facts of the judgment in the said case of Dimension Apparel Pvt Ltd (supra) are include that the said company got amalgamated into M/s. BS Infratech Pvt Ltd w.e.f 1.4.2008 ie AYs 2003-04 to 2008-2009 onwards. Assessing Officer completed the assessments in the name of the said Dimen....
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....brackets below the OB&RPL. But, the PAN mentioned against PAN / GIR No. relates to the amalgamating company-OB&RPL. Therefore, we infer that the identity of the assessee, on which assessments were made, relates to the name of the amalgamating company. In all three cases, the statutory notices were issued in the name of the amalgamating company. Considering the above, we are of the opinion that the assessments completed in the names of the non-existing companies and therefore, they have to be held as void ab initio. We take strength from the judgment cited above (supra). Accordingly, the common legal ground raised by the assessees in all the three assessment years under consideration is allowed in favour of the assessee. 11. Considering our decision on the legal issue, which is decided in favour of the assessee, in our opinion, the adjudication of the other grounds raised in all the three appeals becomes an academic exercise. Therefore, all the other grounds raised in the instant appeals are dismissed as academic. 12. In the result, all the three appeals filed by the assessee are allowed. Order pronounced in the open court on 21st March, 2016. ============= Document 1 ....
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....s on the date of issue of notice under sec. 148 on 3.3.2011, it is a fact on record that the assessee-company was not in existence. This is because, the company has already been dissolved with effect from 1.4.2006. As a result Document 2 Rainbow Oxygen P Ltd (ITA No. 48/Del/2015 Pampasar Distillery Ltd Vs ACIT 15 SOT 331 ITAT New Delhi ITAT Kolkata assessee- of merger approved by the Hon'ble Madras High Court through their order dated 1.6.2006. the company did not exist after 1.4.2006. Therefore, no such company is existing as on 3.3.2011 for the Revenue to issue a notice, even if the subject-matter relates to an earlier assessment year 2004-05, in which period the assessee company was existing. It is not possible to ask any question to a dead person even in respect of the matter which occurred, when that person was alive. This reasoning is equally applicable to the present case. as well. In such circumstances, the notice should have issued to the amalgamated company, M/s. Precot Industries Ltd. Under these circumstances, we have no reason to deviate from the order of the Commiss....
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....pparels P Ltd Name of Amalgamated Co. (New Co.) BS Infratech P Ltd Spice Corp. Ltd M Corp. P Ltd. Sapient Corporation Pvt Ltd. Sapient Consulting Ltd Assessment year involved AY 2003-04 to 2008-09 AY 2002-03 AY 09-10 & 10-11 Date of High Court order & With effect from Dated 6/1/2012 w.e.f. 1/4/2011 Dated 11/2/2004 w.e.f. 1/7/2003 Dated 7/12/2009 w.e.f 1/4/2009 Chankaya Exports BS Infratech P Ltd AY 03-04 to 08-09 Dated 7/12/2009 w.ef. 1/4/2008 P Ltd. Meridien Industries Ltd Precot Mill Ltd AY 2004-05 Dated 1/6/2006 w.ef. 1/4/2006 Document 3 Shah & Japaria CHARTERED ACCOUNTANTS To, The Asstt. Commissioner of Income Tax. Central Circle 47, Anyakar Bhavan, & Floor, Mumbal Dear Sir. Reg: M/s. Orbit Corporation Limited/ M/s. Orbit Constructions & Realtors Pvt. Ltd. / M/s. Orbit Builcan & Realty Pvt. Ltd. / M/s. Orbit Housing Pvt. Ltd. Sub: Intimation for the amalgamation of the companies. 16.01.2008 With respect to the above and under instructions from our above client, in we have to inform your goodsetf that t....