M/s. Chanakaya Export Pvt. Ltd., New Delhi v. ACIT, New Delhi

CO 74/DEL/2012 | 2003-2004
Pronouncement Date: 19-07-2013 | Result: Dismissed

Appeal Details

RSA Number 7420123 RSA 2012
Assessee PAN AACCC7644P
Bench Delhi
Appeal Number CO 74/DEL/2012
Duration Of Justice 1 year(s) 3 month(s) 21 day(s)
Appellant M/s. Chanakaya Export Pvt. Ltd., New Delhi
Respondent ACIT, New Delhi
Appeal Type Cross Objection
Pronouncement Date 19-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 19-07-2013
Date Of Final Hearing 18-07-2013
Next Hearing Date 18-07-2013
Assessment Year 2003-2004
Appeal Filed On 28-03-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B NEW DELHI) BEFORE SHRI U.B.S. BEDI JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NOS.539 TO 544/DEL/2012 ASSESSMENT YEARS : 2003-04 2004-05 2005-06 2006- 07 2007-08 & 2008-09 ACIT CENTRAL CIRCLE 21 VS. M/S. CHANAKAYA EXPORT PVT. LTD. NEW DELHI. (AMALGAMATED WITH M/S. B.S. INFRATECH PVT. LTD. ) F 6/5 VASANT VIHAR NEW DELHI. (PAN : AACCC7644P) AND C.O.NOS.74 TO 79/DEL/2012 (IN ITA NOS.539 TO 544/DEL/2012) ASSESSMENT YEARS : 2003-04 2004-05 2005-06 2006- 07 2007-08 & 2008-09 M/S. CHANAKAYA EXPORT PVT. LTD. VS. ACIT CENTRAL CIRCLE 21 (AMALGAMATED WITH M/S. B.S. NEW DELHI. INFRATECH PVT. LTD. ) F 6/5 VASANT VIHAR NEW DELHI. (PAN : AACCC7644P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT GARG ADVOCATE RESPONDENT BY : DR. SUDHA KUMARI CIT DR. O R D E R PER BENCH : ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 2 ALL THESE APPEALS FILED BY THE REVENUE AND CROSS O BJECTIONS FILED BY THE ASSESSEE EMANATE FROM THE CONSOLIDATED ORDER OF THE CIT (APPEALS)-II NEW DELHI DATED 24.11.2011. ALL THE APPEALS AND CROSS OBJECTIONS WERE HEARD TOGETHER AND HAVE BEEN DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. SIMILAR GROUNDS OF APPEALS AND SIMILAR CROSS OBJECTIONS HAVE BEEN TAKEN BY REVENUE AND ASSESSEE IN RESPECT OF AL L YEARS. 2. THE REVENUE HAS CHALLENGED THE ORDER OF THE CIT (A) IN GROUND NO.1 REGARDING UPHOLDING THE ASSESSMENT ON COMPANY WHICH HAS BEEN DISSOLVED/AMALGAMATED UNDER SECTION 391 & 392 OF TH E COMPANIES ACT AS INVALID. THE OTHER GROUNDS TAKEN BY THE REVENUE ARE WITH REGARD TO THE DELETION OF THE ADDITIONS ON MERITS. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE READ AS UNDER :- 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS O F THE CASE IN UPHOLDING THAT ASSESSMENT ON A COMPANY WHICH HAS BE EN DISSOLVED/AMALGAMATED UNDER SECTION 391 AND 394 OF THE COMPANIES ACT 1956 IS INVALID. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.33 22 754/- MADE ON ACC OUNT OF UNEXPLAINED PURCHASE U/S 69C OF THE I.T. ACT. 3. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN ACCEPTING THE TRANSACTION MADE IN CASH BY THE ASSES SEE COMPANY REGARDING SALE AND PURCHASE. 4. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.3 77 171/- MADE ON ACCO UNT OF EXPENSES AND DEPRECIATION. ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 3 5. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN HOLDING THAT THE STATEMENT OF VARIOUS PERSONS WITHO UT BEING CONFRONTED TO THE ASSESSEE COMPANY HAVE WEAK EVIDEN TIARY VALUE. 6. (A) THE ORDER OF THE CIT (A) IS ERRONEOUS AND NO T TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AME ND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F THE HEARING OF THE APPEAL. THE GROUNDS TAKEN BY THE ASSESSEE IN THE CROSS OBJE CTION READ AS UNDER :- 1. THAT IN VIEW OF THE FACTS & CIRCUMSTANCES OF T HE CASE AND IN LAW THE CIT (A) HAS ERRED IN NOT HOLDING THAT THE NOTIC E ISSUED U/S L53C AND THE ASSESSMENT ORDER PASSED U/S 153C/143(3) ARE ILL EGAL BAD IN LAW WITHOUT JURISDICTION AND BARRED BY TIME LIMITATION. 2. THAT THE DOCUMENTS FOUND DURING SEARCH PROCEEDI NGS AS REFERRED TO IN THE SATISFACTION NOTE DO NOT BELONG TO ASSESSEE AS THE SAME WERE PART OF WORKING PAPERS OF THE C.A SH. B.K. DHINGRA IN WHOSE OFFICE THE SEARCH WAS CONDUCTED. HENCE THE NOTICE ISSUED U/S 153C B ASED ON SAID DOCUMENTS IS ILLEGAL BAD IN LAW AND WITHOUT JURIS DICTION. 3. THAT ADMITTEDLY AS RECORDED IN THE SATISFACTIO N NOTE NO SEIZED DOCUMENT RELATED TO THE RELEVANT ASSESSMENT YEAR WA S FOUND AND THE SEIZED PAPER REFERRED IN THE SAID SATISFACTION NOTE WERE D ULY REFLECTED IN THE REGULAR BOOKS OF A/C AND NO INCRIMINATING MATERIAL WAS FOUND. HENCE THE NOTICE ISSUED U/S 153C IS ILLEGAL BAD IN LAW & WIT HOUT JURISDICTION. 4. THAT IN VIEW OF THE FACTS & CIRCUMSTANCES OF TH E CASE THE CIT (A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE A SSESSMENT HAS BEEN FRAMED IN CONFORMITY WITH STATUTORY PROVISION OF SE CTION L53C R/W SECTION 153A OF THE ACT. 5. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN FACTS AND ON LAW IN UPHOLDING THE VALI DITY OF ASSESSMENT PARTICULARLY WHEN THE SEIZED DOCUMENT WERE NEVER HA NDED OVER TO THE A.O. WHO FRAMED THE ASSESSMENT AND THE ADDITIONS MADE AR E ILLEGAL BAD IN LAW & WITHOUT JURISDICTION. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF THE LAW THE LD CIT (A) HAS ERRED IN NOT CONSIDE RING THE FACT THAT THE ASSESSMENT PROCEEDING FOR THE YEAR UNDER APPEAL WAS NOT PENDING ON THE DATE OF THE RECORDING OF SATISFACTION U/S 153C OF T HE ACT AND ACCORDINGLY ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 4 THE SAME DID NOT ABATE FOR THE PURPOSE OF INITIATIO N OF PROCEEDINGS U/S 153C AND AS SUCH THE ASSESSMENT BEING BAD IN LAW DE SERVES TO BE QUASHED. 7. THAT THE RESPONDENT RESERVES THE RIGHT TO ADD/A MEND/ALTER THE GROUNDS OF CROSS OBJECTION. 3. THE BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT 1961 WAS CARRIED OUT ON SHRI BK DHINGA SMT. POONAM DHINGA & M/S MADHUSUDAN BUILDCON PVT. LTD. ON 20.10 .2008. DURING THE COURSE OF SEARCH AT THEIR RESIDENTIAL PREMISES AT F -6/5 VASANT VIHAR NEW DELHI CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE SEIZED. ON THE BASIS OF THOSE DOCUMENTS SO FOUND BELONGING TO THE ASSESSEE COMPANY PROCEEDINGS WERE INITIATED IN THE CASE OF ASSESSEE U/S 153C READ WITH SECTION 153A OF THE ACT. IN RESPONSE TO NOTICE U/S 153C REA D WITH SECTION 153A THE ASSESSEE FILED RETURNS FOR THE ASSESSMENT YEARS 200 3-04 TO 2008-09. THE ASSESSMENT IN THESE YEARS WAS COMPLETED BY THE ASSE SSING OFFICER BY MAKING ADDITIONS FOR PURCHASES MADE IN CASH AND SOM E OTHER MISC. DISALLOWANCE WERE ALSO MADE. THE LD CIT(A) ON THE B ASIS OF VARIOUS SUBMISSIONS DELETED THE ADDITIONS MADE BY THE ASSES SING OFFICER ON MERITS AND ALSO HELD THAT THE COMPANY WAS NOT IN EXISTENCE AT THE TIME OF ASSESSMENT AS IT HAD ALREADY AMALGAMATED WITH ANOTH ER COMPANY. VIDE PARAS 15 TO 17 AT PAGES 24 TO 27 OF CIT(A)S ORDER THE ISSUE IS ADJUDICATED AS UNDER :- ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 5 15. I HAVE GONE THROUGH THE COPY OF MASTER DATA OF REGISTRAR OF COMPANIES. DELHI AND HARYANA FILED AT (PAGE NO.73 OF THE PAPER BOOK.) AS PER THE SAME THE STATU S OF THE APPELLANT COMPANY IS MENTIONED AS AMALGAMATED MEA NING THEREBY DISSOLVED. ACCORDINGLY IT IS AN ADMITTED F ACT THAT THE APPELLANT COMPANY M/S CHANAKYA EXPORTS PRIVATE LIMI TED STOOD DISSOLVED ON AMALGAMATION WITH M/S B. S. INFR ATECH PVT. LTD. IT IS ALSO ADMITTED FACT THAT AFTER FILING THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR UNDER PRO TEST THE APPELLANT COMPANY INFORMED THE AO ABOUT THE FACT OF THE AMALGAMATION VIDE ITS LETTER DATE NIL FILED IN RESP ONSE TO NOTICE U/S 143(2) AND U/S 142(1) OF THE INCOME TAX ACT 19 61. THE ASSESSEE COMPANY WOULD LIKE TO SUBMIT THAT IT HAS ALREADY BEEN AMALGAMATED WITH M/S B. S. INFRATECH PVT. LTD . VIDE DELHI HIGH COURT ORDER DATED 07.12.2009 PASSED U/S 391 (2) AND 394 OF THE COMPANIES ACT 1956 COPY OF THE SAM E IS ENCLOSED. 16. IT IS ALSO NOTED THAT THE AO IN ITS REPORT HAS ADMITTED THE FACT THAT THE APPELLANT CO. M/S CHANAKYA EXPORTS PV T. LTD. WAS AMALGAMATED DURING THE A. Y. 2009-10. IT IS ALSO NO TED THAT IN THE ASSESSMENT ORDER PASSED U/S 153C OF THE INCOME TAX ACT 1961 THE NAME OF THE TRANSFEREE COMPANY I.E. M/S B. S. INFRATECH PVT. LTD. IS ALSO MENTIONED. IT IS ALSO ADMITTED FA CT THAT NO NOTICE U/S 143(2)/142(1) OF THE I TAX ACT 1961 WAS ISSUED TO THE M/S B.S. INFRATECH PRIVATE LIMITED THE TRANSF EREE COMPANY AND IT (THE TRANSFEREE CO ) DID NOT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS. I HAVE ALSO CAREFULLY PURSUED THE FOLL OWING CASE LAWS:- A) IMPSAT (PVT.) LTD. VS. ITO ITAT DELHI A BENCH I TA NO. 1430/DEL/2004 DATED 28.07.2004; 2005 TTJ (DEL) 552: (2004) 91 ITD 354 (DEL).; B) COMMISSIONER OF INCOME TAX VS. VIVED MARKETING SERVICING PVT. LTD. ITA NO. 273/2009; ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 6 C) CIT VS. EXPRESS NEWSPAPERS LTD (1960) 40 ITR 38 (MAD) : (1960) TAX 13(3)-282; D) COMMISSIONER OF INCOME TAX VS. AMARCHAND N. SHROFF (1963) 48 ITR 59 (SC); E) I K AGENCIES PVT. LTD. VS. COMMISSIONER OF WEALTH T AX KOL-III JUDGMENT DATED 11 TH MARCH 2011. F) TRIVENI ENGINEERING AND INDUSTRIES LTD. VS DEPUTY COMMISSIONER OF INCOME TAX ITAT DELHI WT BENCH (2005) 93 TTJ (DEL) 806: (2005) 93 ITD 561; G) CENTURY ENKA LTD. VS DEPUTY COMMISSION OF .ON 14 FEBRUARY 2006: 2006 101 ITD MUM 2008 303 ITR 1 MUM; H) PAMPASAR DISTILLERY LTD. VS. ACIT ITAT KOLKATA E BENCH (2007) 15 SOT 331 (KOL); I) CIT VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA 1973 CTR (SC) 454; (1971) 82 ITR 821 (SC); J) SPICE ENTERTAINMENT LTD. VS CIT ITA 475 AND 476 OF 2011 THE GIST OF THE JUDGMENT OF THE JURISDICTIONAL DELH I HIGH COURTS ORDER IN THE CASE OF ITA NO.273/2009 COMMISSIONER OF INCOME TAX VS VIVED MARKETING SERVICING PVT. LTD. IS REPRODUCED HEREUNDER:- WHEN THE ASSESSING OFFICER PASSED THE ORDER OF ASS ESSMENT AGAINST THE RESPONDENT COMPANY IT HAD ALREADY BEEN DISSOLVED AND STRUCK OFF THE REGISTER OF THE REGISTRAR OF COM PANIES U/S 560 OF THE COMPANIES ACT. IN THESE CIRCUMSTANCES THE T RIBUNAL RIGHTLY HELD THAT THERE COULD NOT HAVE BEEN ANY ASS ESSMENT ORDER PASSED AGAINST THE COMPANY WHICH WAS NOT IN EXISTEN CE AS ON THAT DATE IN THE EYES OF LAW IT HAD ALREADY BEEN DI SSOLVED. THE ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 7 TRIBUNAL RELIED UPON ITS EARLIER DECISION IN IMPSAT PVT. LTD. VS. ITO 276 ITR 136 (AT). WE ARE OF THE OPINION THAT THE VIEW TAKEN BY THE TR IBUNAL IS PERFECTLY VALID AND IN ACCORDANCE WITH LAW. NO SUBS TANTIAL QUESTION OF LAW ARISE. THE GIST OF THE JURISDICTIONAL DELHI TRIBUNALS ORD ER IN THE CASE OF IMPSAT (PVT.) LTD. VS ITO ITAT DELHI A BENCH (2005) 92 TTJ (DEL) 552 IS RE PRODUCED HEREUNDER:- HELD ASSESSMENT VALIDITY- ASSESSMENT ON DISSOLVED COM PANY- ASSESSMENT ON A COMPANY WHICH HAS BEEN DISSOLVED AN D STRUCK OFF THE REGISTER OF COMPANIES U/S 560 OF THE COMPAN IES ACT 1956 IS INVALID EVEN THOUGH THE COMPANY PART ICIPATED IN ASSESSMENT PROCEEDINGS- THERE IS NO PROVISION IN TH E IT ACT TO MAKE ASSESSMENT ON A DISSOLVED COMPANY-IT IS NOT A CASE OF DISCONTINUANCE OF BUSINESS SO AS TO ATTRACT SECTION 176 NOR DOES SECTION 159 CURE THE LACUNA CONCLUSION: ASSESSMENT ON A COMPANY WHICH HAS BEEN DISSOLVED AN D STRUCK OFF THE REGISTER OF COMPANIES U/S 560 OF THE COMPAN IES ACT 1956 IS INVALID EVEN THOUGH THE COMPANY PARTI CIPATED IN ASSESSMENT PROCEEDINGS; IT IS NOT A CASE OF DISCONT INUANCE OF BUSINESS SO AS TO ATTRACT SECTION 176 NOR DOES SECT ION 159 CURE THE LACUNA. I HAVE ALSO GONE THROUGH A JUDGMENT DATED 03.08.201 1 IN THE CASE OF SPICE ENTERTAINMENT LTD. VS CIT IOTA 475 & 476 OF 2011 DELHI HIGH COURT WHEREIN IT HAS BEEN HELD : PARA 16 WHEN WE APPLY THE RATIO OF AFORESAID CASES TO THE FACTS OF THIS CASE THE IRRESISTIBLE CONCLUSION WOULD BE PROVISIONS OF ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 8 SECTIONS 292B OF THE ACT ARE NOT APPLICABLE IN SUCH CASE. THE FRAMING OF ASSESSMENT AGAINST A NON EXISTING ENTITY /PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. 17. IN VIEW OF THE ABOVE STATED FACTS OF THE CASE A ND KEEPING IN MIND THE VIEWS OF VARIOUS COURTS AND TRIBUNALS P ARTICULARLY JURISDICTIONAL HIGH COURT AND TRIBUNAL AS DISCUSSED ABOVE IN MY CONSIDERED OPINION I AGREE WITH THE APPELLANT T HAT ASSESSMENT ON A COMPANY WHICH HAS BEEN DISSOLVED/ AMALGAMATED UNDER SECTION 391 AND 394 OF THE COMPAN IES ACT 1956 IS INVALID. THERE IS NO PROVISION IN THE I T A CT TO MAKE ASSESSMENT ON AN AMALGAMATING COMPANY (TRANSFEROR/D ISSOLVED COMPANY) EVEN THOUGH THE APPELLANT COMPANY PARTICI PATED IN ASSESSMENT PROCEEDINGS. THE JUDGMENT IN THE CASES O F A) IMPSAT (P) LTD. VS INCOME TAX OFFICER ITAT DELHI A BEN CH ITA NO.1430/DEL/2004 DATED 28.07.2004; 2005 TTJ (DEL) 5 52: (2004) 91 ITD 354 (DEL) B) COMMISSIONER OF INCOME T AX VS. VIVED MARKETING SERVICING PVT. LTD. ITA NO. 273/200 9 AND C) SPICE ENTERTAINMENT LTD. VS CIT ITA 475 & 476 OF 20 11 BY THE HONBLE DELHI COURT ARE APPLICABLE TO THE PRESE NT FACTS OF THE CASE. THE APPELLANT COMPANY STOOD DISSOLVED ON 07.12.2009 ON AMALGAMATION WITH M/S B. S. INFRATECH PVT. LTD. IN VIEW OF THE ABOVE I ACCEPT THE CONTENTION OF THE APPELLANT COMPANY AND HOLD THAT THE ASSESSMENT ORDER PASSED ON THE APPELL ANT COMPANY IS A NULLITY. THEREFORE THIS GROUND OF APPEAL IS D ECIDED IN FAVOUR OF THE APPELLANT. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US IN RES PECT OF ALL YEARS AND ASSESSEE HAS FILED CROSS OBJECTIONS TO THESE APPEAL S. 4. AT THE OUTSET THE LD. AR SUBMITTED THAT THIS IS SUE RAISED IN GROUND NO.1 IN ALL THE REVENUES APPEAL IS COVERED BY THE DECISION OF ITAT DELHI BENCH B IN THE ASSESSEES SISTER CONCERN IN THE C ASE OF ACIT VS. ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 9 DIMENSION APPARELS PVT. LTD. IN ITA NOS.571 TO 576/ DEL/2012 DATED 21.06.2013. LD. DR WAS NOT HAVING ANY CONTRARY VIEW IN THIS REGARD. 5. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE ITAT IN THE CASE OF ACIT VS. DIMENSION APPARELS PVT. LTD. CITED SUPRA HAS CONFIRMED THE ORDER OF THE CIT (A) BY HOLDING AS UNDER :- AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US IN RE SPECT OF ALL YEARS AND ASSESSEE HAS FILED CROSS OBJECTIONS TO TH ESE APPEALS. AT THE OUTSET THE LD DR SUBMITTED THAT LD CIT(A) H AD WRONGLY RELIED UPON THE CASE LAW OF MICRA INDIA PVT. LTD. A S IN THAT CASE THIS GROUND WAS NEVER TAKEN. IT WAS FURTHER ARGUED THAT IN RESPONSE TO NOTICE U/S 153C READ WITH SECTION 153A THE ASSESSEE HAD FILED RETURNS IN ITS OWN NAME AND HAD ALSO PART ICIPATED IN THE PROCEEDINGS AND THEREFORE THE STAND TAKEN BY TH E ASSESSEE BEFORE THE LD CIT(A) THAT THE COMPANY WAS NOT IN EX ISTENCE WAS NOT JUSTIFIED. SHE FURTHER SUBMITTED THAT THE ASSE SSING OFFICER HAD USED CORRECT NOMENCLATURE IN WHICH HE HAS WRITT EN THE NAME OF ASSESSEE ALONG WITH THE FACT THAT THE COMPANY HA D AMALGAMATED WITH M/S BS INFRATECH PVT. LTD. IN VIEW OF THE ABOVE SHE ARGUED THAT SINCE NAME OF AMALGAMATED COM PANY WAS ALSO THERE IN THE ASSESSMENT ORDER THEREFORE I T CAN BE CONCLUDED THAT PROCEEDINGS WERE RIGHTLY STARTED AND CONCLUDED. CONTINUING HER ARGUMENTS SHE FURTHER STATED THAT TH E ASSESSING OFFICER HAD USED THE CORRECT ADDRESS OF AMALGAMATED COMPANY M/S BS INFRATECH PVT. LTD. AND IN THIS RESPECT SHE INVITED OUR ATTENTION TO THE ASSESSMENT ORDER AND ALSO APPEAL D OCUMENTS FILED BEFORE LD CIT(A). SHE FURTHER STATED THAT AS SESSEE HAS BEEN CHANGING ITS STATUS AS PREVIOUSLY IT WAS KNOWN AS PSTC & IP LTD. AND AFTER THAT AMALGAMATED WITH M/S BS INFR ATECH PVT. LTD. AND NOW AMALGAMATED WITH SURIDHI INFRACON PVT. LTD. IN VIEW OF THE ABOVE FACTS SHE ARGUED THAT LD CIT(A) HAD IGNORED ALL THESE FACTS WHILE NULLIFYING THE ASSESSMENT ON PURELY ACADEMIC BASIS AND FURTHER ARGUED THAT THE CASE LAW RELIED UPON BY THE LD CIT(A) ARE NOT SIMILAR TO THE FACTS AND C IRCUMSTANCES ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 10 OF THE PRESENT APPEALS. ON MERITS OF THE CASE SHE DISTINGUISHED WITH THE CASE LAW RELIED UPON BY LD AR AND IN VIEW OF THESE ARGUMENTS SHE SUBMITTED THAT THE APPEALS OF THE REV ENUE BE ADMITTED AND CROSS OBJECTIONS FILED BY THE ASSESSEE BE DISMISSED. THE LD AR ON THE OTHER HAND SUBMITTED THAT THE FA CT OF ASSESSEE HAVING MERGED WITH ANOTHER COMPANY WAS DUL Y INTIMATED TO THE ASSESSING OFFICER AND IN THIS RESP ECT OUR ATTENTION WAS INVITED TO PARA 19 OF LD CIT(A)S ORD ER WHERE THE LD CIT(A) HAS MADE FINDINGS OF FACT. THEREFORE HE ARGUED THAT ASSESSING OFFICER SHOULD HAVE INITIATED PROCEEDINGS AGAINST THE AMALGAMATED COMPANY AS THE ASSESSEE HAD BECOME NON EXISTENT AT THE TIME OF ISSUE OF NOTICE U/S 153C READ WITH S ECTION 153A OF THE ACT. OUR ATTENTION WAS INVITED TO PAGE 2 OF ASSESSMENT ORDER WHERE ASSESSING OFFICER HIMSELF ADMITS THE FA CT THAT COMPANY HAD ALREADY MERGED WITH M/S B. S. INFRASTRU CTURE (PVT.) LTD. W.E.F.01.04.2008. REGARDING CONTENTION OF LD DR THAT LD CIT(A) HAD WR ONGLY RELIED UPON THE CASE LAW OF M/S MICRA INDIA PVT. LT D HE SUBMITTED AND CITED FROM THE RELEVANT PARAGRAPHS OF ITAT ORDER IN THIS RESPECT. HE FURTHER SUBMITTED THAT RETURNS WERE FILED BY THE NON EXISTENT COMPANY JUST TO COMPLY THE NOTICES ISSUED IN THIS BEHALF AND RETURNS WERE FILED IN PROTEST WHICH WAS NOTED ON THE ACKNOWLEDGEMENT ITSELF WHEREIN IT WAS CONTESTED THAT THE NOTICES WERE BAD AND ILLEGAL AND WITHOUT JURISDICTI ON. REGARDING ARGUMENT OF LD DR THAT ASSESSEE HAS BEEN CHANGING I TS STATUS FREQUENTLY THE LD AR SUBMITTED THAT THESE OBSERVAT IONS HAVE NO BEARING ON THE FINDING OF THE IMPUGNED ORDER. TH E LD AR FURTHER RELIED UPON THE CASE LAW AND ON MERITS ALSO BUT HIS BASIC ARGUMENT REMAINED THAT THE ASSESSMENT ORDER WAS NUL L AND VOID AB INITIO AS THE COMPANY WAS NON EXISTENT. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE OBSERVE THAT NOTICE U/S 153C WAS ISSUED ON 31.12.2010 FOR A SSESSMENT YEAR 2003-04 AS IS APPARENT FROM PAPER BOOK PAGE 1 FILED BY THE ASSESSEE. THE ASSESSEE IN REPLY TO LETTER DATED 01. 11.2010 OF ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 11 ACIT CENTRAL CIRCLE-21 NEW DELHI AT PAGE 68 OF PAPER BOOK HAD SUBMITTED AS UNDER: THE ASSESSEE COMPANY WOULD LIKE TO SUBMIT IT HAS A LREADY BEEN AMALGAMATED WITH M/S BS INFRATECH PVT. LTD. VIDE DE LHI HIGH COURT DATED 07.12.2009 PASSED U/S391(2) AND 394 OF COMPANIES ACT 1956 COPY OF THE SAME HAS BEEN ENCLOSED WHILE FILING REPLY TO ASSESSING YEAR 003-04. THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER HAS N OTED THAT COMPANY HAD MERGED WITH M/S BS INFRATECH PVT. LTD. W.E.F. 1.4.2008. THEREFORE IT WAS VERY MUCH IN THE KNOWLE DGE OF ASSESSING OFFICER THAT THE ASSESSEE WAS NON EXISTEN T. THEREFORE HE SHOULD HAVE INITIATED THE PROCEEDINGS AGAINST TH E AMALGAMATED COMPANY ONLY. MOREOVER THE ASSESSEE HAS ALSO INDICATED ON THE ACKNOWLEDGEMENTS OF RETURNS THAT RETURNS ARE BEING FILED UNDER PROTEST. THE LD CIT (A) AFTER RELYING UPON A NUMBER OF CASE LAWS HAS RIGHTLY HELD THAT THE ASSESSMENT ORDER PAS SED ON THE APPELLANT COMPANY WAS A NULLITY. DURING PROCEEDINGS BEFORE US THE LD AR HAS ALSO FILED A COPY OF ORDER PASSED BY DELHI BENCH G IN I.T.A. NO.S 565 TO 570DELL/2012 IN RESPECT O F SPN MILK PRODUCT INDUSTRIES (P) LTD. THE PROCEEDINGS IN THIS CASE WAS ALSO INITIATED UNDER SAME CIRCUMSTANCES BY VIRTUE O F SEARCH AND SEIZURE OPERATION ON THE SAME PERSON AS IN THE CASE OF PRESENT APPEALS. MOREOVER IN THIS CASE ALSO THE ASSESSEE H AD AMALGAMATED WITH ANOTHER COMPANY AND ASSESSEE HAD PARTICIPATED IN ASSESSMENT PROCEEDINGS BUT EVEN THE N HON'BLE TRIBUNAL HAD HELD THE ASSESSMENT PROCEEDINGS TO BE NULL AND VOID AFTER RELYING UPON A NUMBER OF CASE LAWS. THE HON'BLE TRIBUNAL IN PARA 5 HAD ALSO CONSIDERED THE FACT THA T ASSESSEE HAD FILED RETURNS OF INCOME AND HAD ALSO PARTICIPATED I N THE PROCEEDINGS. THEREFORE THE ARGUMENT OF LD DR THAT ASSESSEE HAD PARTICIPATED IN THE PROCEEDINGS AND THEREFORE T HE PRESENT APPEALS WERE DISTINGUISHABLE CANNOT BE ACCEPTED AS TRIBUNAL UNDER SIMILAR CIRCUMSTANCES HAD ALREADY CONSIDERED THIS ARGUMENT AND HAD DECIDED AGAINST IT. THEREFORE FOL LOWING THE VARIOUS JUDICIAL PRONOUNCEMENTS IN THIS REGARD WE U PHOLD THE ORDER OF LD CIT(A) ON THIS POINT AND REJECT GROUND NO.1 OF THE REVENUES APPEALS. ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 12 SINCE THE FACTS HAVE BEEN THE SAME WE HAVE NO ALTE RNATE BUT TO CONFIRM THE ORDER OF THE CIT (A) BY FOLLOWING THE AFORESAID ORD ER OF COORDINATE BENCH IN THE CASE OF DIMENSION APPARELS PVT. LTD. 6. IN OTHER GROUNDS OF APPEALS THE REVENUE HAS CHA LLENGED THE VARIOUS ADDITIONS DELETED BY THE LD CIT(A) ON MERITS. HOWEV ER ONCE WE HAVE QUASHED THE ASSESSMENT ORDER ITSELF THE VARIOUS ADD ITIONS MADE BY THE ASSESSING OFFICER DO NOT SURVIVE THEREFORE THE OT HER GROUNDS OF REVENUE APPEALS HAVE BECOME INFRUCTUOUS. ACCORDINGLY THE S AME ARE DISMISSED. 7. AS REGARDS TO CROSS OBJECTIONS FILED BY THE ASSE SSEE NO SPECIFIC ARGUMENTS WERE ADVANCED BY THE LD COUNSEL FOR THE A SSESSEE. WE THEREFORE PRESUME THAT THE CROSS OBJECTIONS OF THE ASSESSEE A RE NOT PRESSED AND ACCORDINGLY THE SAME ARE DISMISSED AS NOT PRESSED. 8. IN THE RESULT THE APPEALS FILED BY THE REVENUE AS WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF JULY 2013. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 19 TH DAY OF JULY 2013 TS ITA NOS.539 TO 544/DEL/2012 C.O.NOS.74 TO 79/DEL/2012 13 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.