TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 387
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....Assessment Year ('AY') 2011-12. 2. The question sought to be urged by the Revenue in this appeal is whether the order of the ITAT is perverse inasmuch as it invalidates the assessment order dated 29th December 2015 passed by the Assessing Officer ('AO') for AY 2011-12 on the ground that it has framed in the name of the amalgamating company. 3. On 24th January 2017, while admitting this appeal, this Court framed the following question of law: "Did the ITAT misapply the provisions of Section 170 (2) of the Income Tax Act in the circumstances of the case, while concluding that the assessment order was not tenable for having been framed in the name of the non-existent company." 4. The facts are that on 28th November 2011 Suzuki Powertrain I....
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.... urged was that the assessment order was without jurisdiction inasmuch as it had been passed in the name of an entity that ceased to exist on the date of the assessment order. The ITAT accepted the above plea of the Respondent-MSIL, as a result of which the assessment order was set aside. 9. On the strength of the decision of the Supreme Court in Kuldeep Kumar Dubey v. Ramesh Chandra Goyal (2015) 3 SCC 525, Mr. Asheesh Jain, learned Senior Standing Counsel for the Revenue, urges that in the present case the error, if at all, was a mere misdescription of the party in the assessment order and nothing more. This could not result in the assessment order itself being set aside. He further submits that the record of the assessment proceedings sh....
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....from 1st July, 2003. Like in the present case, even there it was urged by the Revenue that this was a procedural defect. It was also urged by the Revenue that since the amalgamated entity had participated in the assessment proceedings without raising any objection, it should be precluded from raising it thereafter. 11.2 The two questions framed by this Court in Spice Infotainment (supra) were as under: "(i) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the action of the Assessing Officer in framing assessment in the name of "Spice Corp Ltd", after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f. 01.07.2003, was a mere "procedur....
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.... See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity." 11.4 The Court in Spice Infotainment (supra) thereafter held as under: "11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said "dead person. When notice under Section 143 (2) was sen....
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....er, for the purposes of Section 170 (2) of the Act, the defect of passing the assessment order in the name of an non-existent entity is a mere irregularity was answered by this Court in CIT v. Dimensions Apparels (P) Ltd. (supra), where in paras 6 and 7 it was held as under: "6. Sections 170(1) and 170(2) of the Act do not assist the revenue in their case. The revenue does not contest that in a case of amalgamation, the predecessor (being a dissolved company) "cannot be found". Consequently, Section 170(2) applies. This provision clarifies that where the predecessor cannot be found, "the assessment of the income of the previous year in which the succession took place up to the date of the succession and of the precious year preceding that ....