M/s Aditi Vintrade Pvt. Ltd., Kolkata v. Pr.CIT-4,, Kolkata

ITA 1411/KOL/2019 | 2012-2013
Pronouncement Date: 22-11-2019 | Result: Allowed

Appeal Details

RSA Number 141123514 RSA 2019
Assessee PAN AADCD2076R
Bench Kolkata
Appeal Number ITA 1411/KOL/2019
Duration Of Justice 5 month(s) 15 day(s)
Appellant M/s Aditi Vintrade Pvt. Ltd., Kolkata
Respondent Pr.CIT-4,, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 22-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-11-2019
Last Hearing Date 26-08-2019
First Hearing Date 15-10-2019
Assessment Year 2012-2013
Appeal Filed On 07-06-2019
Judgment Text
1 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI A. T. VARKEY JM & DR. (SHRI) ARJUN L AL SAINI AM] I.TA NO.1408/KOL/2019 A.Y 2012-13 M/S. DURJA VINIMAY PVT. LTD PAN: AADCD2076R VS. PR.CIT KOLKATA-4 KOLKATA APPELLANT RESPONDENT I.TA NO.1409/KOL/2019 A.Y 2012-13 M/S. GYAN MANDIR TRADECOM PVT. LTD PAN: AAECG5505H VS. PR.CIT KOLKATA-4 KOLKATA APPELLANT RESPONDENT I.TA NO.1410/KOL/2019 A.Y 2012-13 M/S. PARAMTMA VINIMAY PVT. LTD PAN: AAFCP1334G VS. PR.CIT KOLKATA-4 KOLKATA APPELLANT RESPONDENT I.TA NO.1411/KOL/2019 A.Y 2012-13 M/S. ADITI VINTRADE PVT. LTD PAN: AAJCA1785C VS. PR.CIT KOLKATA-4 KOLKATA APPELLANT RESPONDENT I.TA NO.1412/KOL/2019 A.Y 2012-13 M/S. LIGHT HOUSE MERCHANTS PVT. LTD PAN: AACCL1461F VS. PR.CIT KOLKATA-4 KOLKATA APPELLANT RESPONDENT DATE OF HEARING 15.10.2019 DATE OF PRONOUNCEMENT 22.11.2018 FOR THE APPELLANT/ASSESSEE S/SHRI S.K. TULSIAN SR. ADVOCATE & PUJA SOMANI ADVOCATE LD.ARS FOR THE RESPONDENT SHRI RADHEY SHYAM CIT LD. SR. DR ORDER PER SHRI A.T. VARKEY JM ALL THE AFORESAID APPEALS ARE PREFERRED BY DIFFERENT ASSESSEES ( AS CAPTIONED IN THE CAUSE LIST ABOVE ) ARE AGAINST THE SEPARATE ORD ERS OF LD. PRCIT KOLKATA-4 DATED 12-03-2019 14-03-2019 FOR THE ASSESSMENT YEAR 20 12-13. 2 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 2. MAIN GRIEVANCES OF THE ASSESSEES/ CORPORATE LEGAL ENTITIES ARE THAT THE IMPUGNED REVISIONAL ORDER PASSED UNDER SECTION 263 OF THE IN COME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY THE LD. PR.CIT KOLKAT A 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 HONBLE NATIONAL CO MPANY 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 F ILED BEFORE US THE FOLLOWING CHARTS IN RESPECT OF ALL THE FIVE DIFFERENT ASSESSEES/LEGAL ENTITIES FROM WHICH WE CAN GET A BIRDS EYE VIEW ABOUT THE FACTS NECESSARY TO ADJUDICATE TH E LEGAL ISSUE:- ITA NO. 1408/KOL/2019 A.Y 2012-13 M/S. DURJA VINIMAY PVT. LTD [ MERGED WITH NIHON IMP EX PVT. LTD ON 21- 12-2018 SR. NO. DATE FACTS 1. 17-09-2012 ROI FILED ON 17-09-2012 DECLARING INC OME OFRS.560/- 2. 25.03.2015 ASSESSMENT OF THE COMPANY FOR A.Y. 20 12-13 WAS COMPLETED VIDE ORDER U/S. 143(3) OF THE ACT DATED 25.03.2015 DETERMINING THE TOTAL INCOME OF RS.22 36 50 560/-. 3. 27-07-2016 NOTICE U/S 263 OF THE ACT WAS ISSUED ON THE ASSESSEE 4. 27.09.2016 THE ASSESSMENT ORDER DATED 25-03-2015 WAS SET ASIDE VIDE ORDER U/S. 263 OF THE ACT DATED 27.09.2016 FOR D E NOVO ASSESSMENT AFTER DETAILED ENQUIRY ON THE ISSUE O F SHARE ALLOTMENT BY THE APPELLANT- COMPANY. 5. 28.10.2016 IN PURSUANCE OF THE SAID ORDER PASSED U/S. 263 OF THE ACT THE LD. A.O. PASSED ASSESSMENT ORDER U/S. 263/143( 3) ON 28.10.2016 DETERMINING TOTAL INCOME OFRS.14 960/- . 6. 21.12.2018 BY VIRTUE OF ORDER OF HON'BLE NCLT K OLKATA BENCH DATED 21.12.2018 THE COMPANY M/S. DURJA VINIMAY PVT. LTD . STOOD AMALGAMATED WITH M/S. NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 AND FORMED PART OF ROC RECORDS 7. 31.12.2018 THE LD. PR. C.I.T. KOLKATA-4 THEREAF TER AGAIN INITIATED PROCEEDING U/S. 263 FOR THE SECOND TIME ON THE N ON- EXISTING ENTITY (DURJA VINIMAY PVT. LTD.) VIDE SHO W CAUSE NOTICE DATED 31.12.2018. HE PASSED ORDER U/S. 263 OF THE ACT DATED 12.03.2019 AND DIRECTED THE A.O. TO PA SS A FRESH ASSESSMENT ORDER. 8. 3L.0L.2019 ASSESSEE INTIMATED THE LEARNED AO IT O WARD - 11(2) THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M /S. 3 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. NIHON IMPEX PVT. LTD. W.E.F. 0L.04.2017. AMALGAMATION ORDER COPY WAS ENCLOSED. 9. 12.03.2019 THE LEARNED PR.CIT PASSED ORDER U/S. 263 OF THE A CT DATED 12.03.2019 IN THE NAME OF NON-EXISTING ENTITY DURJ A VINIMAY PVT. LTD. WHEREIN THE A.O. WAS DIRECTED TO PASS A FRESH ASSESSMENT ORDER. 10. 07-06-2019 APPEAL FILED BEFORE THE HON'BLE ITAT KOLKATA ON 07-06- 2019 ITA NO. 1409/KOL/2019 A.Y 2012-13 M/S. GYAN MANDIR PVT. LTD [ MERGED WITH NIHON IMPEX PVT. LTD ON 21-10- 2018 SR. NO. DATE FACTS 1. 13-06-2012 ROI FILED DECLARING INCOME OF RS. 31 0/- 2. 26.03.2015 ASSESSMENT OF THE COMPANY FOR A.Y. 20 12-13 WAS COMPLETED VIDE ORDER U/S. 143(3) OF THE ACT DATED 20.03.2015 DETERMINING THE TOTAL INCOME OF RS. 19 10 50 516/-. 3. 03-06-2016 THE ASSESSMENT ORDER DATED 26-03-2015 WAS SET ASIDE VIDE ORDER U/S. 263 OF THE ACT DATED 17-10-2016 FOR DE NOVO ASSESSMENT AFTER DETAILED ENQUIRY ON THE ISSUE O F SHARE ALLOTMENT BY THE APPELLANT- COMPANY. 4. 03-11-2016 IN PURSUANCE OF THE SAID ORDER PASSED U/S. 263 OF THE ACT THE LD. A.O. PASSED ASSESSMENT ORDER U/S. 263/143( 3) ON 03.11.2016 DETERMINING TOTAL INCOME OF RS.310/-. 5. 21.10.2018 BY VIRTUE OF ORDER OF HON'BLE NCLT K OLKATA BENCH DATED 21.10.2018 THE COMPANY M/S. GYAN MANDIR TRADECOM P VT. LTD. STOOD AMALGAMATED WITH M/S. NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 AND FORMED PART OF ROC RECORDS 6. 30-01-2019 THE LD. PR. C.I.T. KOLKATA-4 THEREAF TER AGAIN INITIATED PROCEEDING U/S. 263 FOR THE SECOND TIME ON THE N ON- EXISTING ENTITY (GYAN MANDIR TRADECOM PVT. LTD.). HE PASSED ORDER U/S. 263 OF THE ACT DATED 12.03.2019 A ND DIRECTED THE A.O. TO PASS A FRESH ASSESSMENT ORD ER. 7. 09.02.2019 ASSESSEE INTIMATED THE LEARNED AO IT O WARD - 11(2) THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M /S. NIHON IMPEX PVT. LTD. W.E.F. 0L.04.2017. 8. 12.03.2019 THE LEARNED PR.CIT PASSED ORDER U/S. 263 OF THE A CT DATED 12.03.2019 IN THE NAME OF NON-EXISTING ENTITY GYAN MANDIR TRADECOM PVT. LTD WHEREIN THE A.O. WAS DIRECTED T O PASS A FRESH ASSESSMENT ORDER. 9. 07-06-2019 APPEAL FILED BEFORE THE HON'BLE ITAT KOLKATA ON 07-06- 2019 4 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. ITA NO. 1410/KOL/2019 A.Y 2012-13 M/S. PARAMTMA VINIMAY PVT. LTD [ MERGED WITH WARNE R DEALCOM PVT. LTD ON 25-10-2018] SR. NO. DATE FACTS 1. 17-09-2012 ROI FILED ON 17-09-2012 DECLARING INC OME OF RS.550/- 2. 25.03.2015 ASSESSMENT OF THE COMPANY FOR A.Y. 20 12-13 WAS COMPLETED VIDE ORDER U/S. 143(3) OF THE ACT DATED 25.03.2015 DETERMINING THE TOTAL INCOME OF RS.25.67 CR. 3. 27-07-2016 NOTICE U/S 263 OF THE ACT WAS ISSUED ON THE ASSESSEE 4. 17-10-2016 THE ASSESSMENT ORDER DATED 25-03-2015 WAS SET ASIDE VIDE ORDER U/S. 263 OF THE ACT DATED 27.10.2016 FOR D E NOVO ASSESSMENT AFTER DETAILED ENQUIRY ON THE ISSUE O F SHARE ALLOTMENT BY THE APPELLANT- COMPANY. 5. 28.10.2016 IN PURSUANCE OF THE SAID ORDER PASSED U/S. 263 OF THE ACT THE LD. A.O. PASSED ASSESSMENT ORDER U/S. 263/143( 3) ON 28.10.2016 DETERMINING TOTAL INCOME OFRS.14 960/- . 6. 25.10.2018 BY VIRTUE OF ORDER OF HON'BLE NCLT K OLKATA BENCH DATED 25.10.2018 THE COMPANY M/S. PARAMTMA VINIMAY PVT. LTD STOOD AMALGAMATED WITH M/S. WARNER DEALCOM PVT. L TD W.E.F. 01.04.2017 AND FORMED PART OF ROC RECORDS 7. 31.12.2018 THE LD. PR. C.I.T. KOLKATA-4 THEREAF TER AGAIN INITIATED PROCEEDING U/S. 263 FOR THE SECOND TIME ON THE N ON- EXISTING ENTITY (M/S. PARAMTMA VINIMAY PVT. LTD ) V IDE SHOW CAUSE NOTICE DATED 31.12.2018. 8. 30.01.2019 ASSESSEE INTIMATED THE LEARNED AO IT O WARD - 11(2) THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M /S. WARNER DEALCOM PVT. LTD W.E.F. 0L.04.2017. AMALGAMATION ORDER COPY WAS ENCLOSED. 9. 12.03.2019 THE LEARNED PR.CIT PASSED ORDER U/S. 263 OF THE A CT DATED 12.03.2019 IN THE NAME OF NON-EXISTING ENTITY M/S . PARAMTMA VINIMAY PVT. WHEREIN THE A.O. WAS DIRECTE D TO PASS A FRESH ASSESSMENT ORDER. 10. 07-06-2019 APPEAL FILED BEFORE THE HON'BLE ITAT KOLKATA ON 07-06- 2019 ITA NO. 1411/KOL/2019 A.Y 2012-13 M/S. ADITI VINTRADE PVT. LTD [ MERGED WITH UTKARSH DEALER PVT. LTD ON 23-10- 2018 SR. NO. DATE FACTS 1. 30-11-2012 ROI FILED ON 30-11-2012 DECLARING INC OME OF RS.340/- 5 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 2. 20.03.2015 ASSESSMENT OF THE COMPANY FOR A.Y. 20 12-13 WAS COMPLETED VIDE ORDER U/S. 143(3) OF THE ACT DATED 20.03.2015 DETERMINING THE TOTAL INCOME OF RS.21 89 00 340/-. 3. 03-06-2016 THE ASSESSMENT ORDER DATED 20-03-2015 WAS SET ASIDE VIDE ORDER U/S. 263 OF THE ACT DATED 03-06-.2016 FOR DE NOVO ASSESSMENT AFTER DETAILED ENQUIRY ON THE ISSUE O F SHARE ALLOTMENT BY THE APPELLANT- COMPANY. 4. 14-07-2016 IN PURSUANCE OF THE SAID ORDER PASSED U/S. 263 OF THE ACT THE LD. A.O. PASSED ASSESSMENT ORDER U/S. 263/143( 3) ON 14-07-2016 DETERMINING TOTAL INCOME OF RS.340/-. 5. 23.10.2018 BY VIRTUE OF ORDER OF HON'BLE NCLT K OLKATA BENCH DATED 23-10-2018 THE COMPANY M/S. ADITI VINTRADE PVT. LT D. STOOD AMALGAMATED WITH M/S. UTKARSH DEALER PVT. L TD. W.E.F. 01.04.2017 AND FORMED PART OF ROC RECORDS 6. 30-01-2019 THE LD. PR. C.I.T. KOLKATA-4 THEREAF TER AGAIN INITIATED PROCEEDING U/S. 263 FOR THE SECOND TIME ON THE N ON- EXISTING ENTITY (ADITI VINTRADE PVT. LTD.) . HE P ASSED ORDER U/S. 263 OF THE ACT DATED 14.03.2019 AND DIRECTED T HE A.O. TO PASS A FRESH ASSESSMENT ORDER. 7. 15-01-2019 ASSESSEE INTIMATED THE LEARNED AO IT O WARD - 11(2) THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M /S. UTKARSH DEALER PVT. LTD. W.E.F. 0L.04.2017. 8. 14-03-2019 THE LEARNED PR.CIT PASSED ORDER U/S. 263 OF THE A CT DATED 14.03.2019 IN THE NAME OF NON-EXISTING ENTITY ADIT I VINTRADE PVT. LTD. WHEREIN THE A.O. WAS DIRECTED T O PASS A FRESH ASSESSMENT ORDER. 9. 07-06-2019 APPEAL FILED BEFORE THE HON'BLE ITAT KOLKATA ON 07-06- 2019 ITA NO. 1412/KOL/2019 A.Y 2012-13 M/S. LIGHT HOUSE MERCHANTS PVT. LTD [ MERGED WITH HIPOLINE COMMERCE PVT. LTD ON 17-12-2018 SR. NO. DATE FACTS 1. 13-09-2012 ROI FILED DECLARING INCOME OF RS.330/ - 2. 26.03.2015 ASSESSMENT OF THE COMPANY FOR A.Y. 20 12-13 WAS COMPLETED VIDE ORDER U/S. 143(3) OF THE ACT DATED 26.03.2015 DETERMINING THE TOTAL INCOME OF RS.20.72 CR. 3. 06-06-2016 THE ASSESSMENT ORDER DATED 26-03-2015 WAS SET ASIDE VIDE ORDER U/S. 263 OF THE ACT DATED 06-06-2016 FOR DE NOVO ASSESSMENT AFTER DETAILED ENQUIRY ON THE ISSUE O F SHARE ALLOTMENT BY THE APPELLANT- COMPANY. 4. 14-07-2016 IN PURSUANCE OF THE SAID ORDER PASSED U/S. 263 OF THE ACT THE LD. A.O. PASSED ASSESSMENT ORDER U/S. 263/143( 3) ON 6 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 14-07-2016 DETERMINING TOTAL INCOME OF RS.330/-. 5. 17-12-2018 BY VIRTUE OF ORDER OF HON'BLE NCLT K OLKATA BENCH DATED 17.12.2018 THE COMPANY M/S. LIGHTHOUSE MERCHANTS PVT. LTD. STOOD AMALGAMATED WITH M/S. HIPOLINE COMMERC E PVT. LTD. W.E.F. 01.04.2017 AND FORMED PART OF R OC RECORDS 6. 30-01-2019 THE LD. PR. C.I.T. KOLKATA-4 THEREAF TER AGAIN INITIATED PROCEEDING U/S. 263 FOR THE SECOND TIME ON THE N ON- EXISTING ENTITY (LIGHTHOUSE MERCHANTS PVT. LTD.) 7. 08-03-2019 INTIMATION TO THE LEARNED AO ITO WAR D-11(2) THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M/S. HIPOLINE COMMERCE PVT. LTD. W.E.F 01.04.2017. 8. 12-03-2019 THE LEARNED PR.CIT PASSED ORDER U/S. 263 OF THE A CT DATED 12.03.2019 IN THE NAME OF NON-EXISTING ENTITY LIG HTHOUSE MERCHANTS PVT. LTD. WHEREIN THE A.O. WAS DIRECTED TO PASS A FRESH ASSESSMENT ORDER. 9. 07-06-2019 APPEAL FILED BEFORE THE HON'BLE ITAT KOLKATA ON 07-06- 2019 3. FROM A PERUSAL OF THE AFORE-STATED CHART IT IS CLEAR THAT THE IMPUGNED REVISIONAL ORDER(S) U/S. 263 OF THE ACT HAS BEEN PASSED BY THE LD. PR. CIT AGAINST THE AFORESAID CAPTIONED ASSESSEES WHO ARE NOT EXISTING IN THE E YES OF LAW. MOREOVER WE ALSO NOTE THAT NOTICE INFORMING PROPOSED ACTION OF REVISION U /S. 263 OF THE ACT WAS ISSUED TO THEM AFTER THEY/ASSESSEES HAD ALREADY AMALGAMATED WITH DIFFERENT ENTITIES. THEREFORE WE FIND THE FOLLOWING FACTS EMERGING FRO M THE AFORESAID CHART(S). SL. NO. NAME OF ASSESSEE DATE OF MERGER/AMALGAMATIO N VIDE ORDER OF NCLT/W.E.F. MERGED/AMALGAMAT ED LEGAL ENTITY SHOW CAUSE NOTICE PROPOSING 263 ACTION BY PCIT& DATE OF 263 ORDER 1 M/S.DURJA VINIMAYP.LTD 21-12- 2018/01.04.2017 M/S. NIHON IMPEX P.LTD 31-12-2018/ 12.03.2019 2 M/S. GYAN MANDIR TRADECOM P.LTD 21-10- 2018/01.04.2017 M/S. NIHON IMPEX P.LTD 30-01-2019/ 12.03.2019 3 M/S. PARAMATMA VINIMAY P.LTD 25-10- 2018/01.04.2017 M/S. WARNER DEALCOM P.LTD 31-12-2018/ 12.03.2019 4 M/S. ADITI VINTRADE P.LTD 23-10- 2018/01.04.2017 M/S. UTKARSH DEALER P.LTD 30-01-2019/ 14.03.2019 5 M/S. LIGHT 17-12- M/S. HIPOLINE 30-01-2019/ 7 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. HOUSE MERCHANTS P.LTD 2018/01.04.2017 COMMERCE P.LTD 12.03.2019 4. WE ALSO NOTE THAT THE IMPUGNED ORDERS HAVE BEEN PASSED BY THE LD. PR. CIT AFTER THE ASSESSEES INFORMED THEIR RESPECTIVE AOS ABOUT THE PASSING OF NCLT ORDER BY VIRTUE OF WHICH THE ASSESSEES/COMPANY(IES) HAD MER GED WITH THE OTHER CORPORATE ENTITIES AS SHOWN IN THE ABOVE MENTIONED CHART (SUP RA). THUS WE FIND THAT ALL THE ASSESSEES BEFORE US HAD ALREADY MERGED WITH OTHER CORPORATE ENTITIES BY VIRTUE OF HONBLE NCLT ORDERS PRIOR TO THE NOTICE ISSUED BY T HE PR. CIT PROPOSING REVISIONAL JURISDICTION U/S. 263 OF THE ACT FOR THE AY 2012-13 AND THE IMPUGNED ORDERS HAVE BEEN PASSED BY THE LD. PR. CIT ON NON-EXISTING ASSESSEE S WHICH HAD CEASED TO EXIST IN THE EYES OF LAW. SINCE FACTS ARE SIMILAR FOR ADJUDICAT ING THE LEGAL ISSUE WE TAKE UP THE LEAD CASE AS THAT OF M/S. DURGA VINIMAY PVT. LTD. [ ITA NO. 1408/KOL/2019] FOR A.Y 2012-13 FOR THE PURPOSE OF ADJUDICATING THE LEGAL I SSUE RAISED BEFORE US. SINCE FACTS ARE SIMILAR THE RESULT IN RESPECT OF OTHER CASES WILL FOLLOW THE RESULT OF THE LEAD CASE. 5. BRIEF FACTS OF THE CASE OF M/S. DURJA VINIMAY P. LTD WHICH MERGED WITH M/S. NIHON IMPACTS P. LTD ON 21-12-2018 W.E.F 01.04.201 7 ARE GIVEN BELOW: 6. IN THE PRESENT CASE WE NOTE THAT THE ASSESSEE C OMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 17-09-2012 DECLA RING TOTAL INCOME AT RS.560/-. DURING THE YEAR THE ASSESSEE RAISED SHARE CAPITAL OF RS.22 36 50 000/- (SHARE CAPITAL RS.11 18 2501- AND SHARE PREMIUM OFRS.22 25 31 750/ - ). THE CASE WAS LATER SELECTED FOR SCRUTINY AND ASSESSMENT ORDER WAS FRAMED UNDER SECTION 143(3) OF THE ACT WAS PASSED ON 25-03-2015 WHEREIN ADDITION OF RS. 22 36 50 000/- WAS MADE UNDER SECTION 68 OF THE ACT AND THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT RS.22 36 50 560/- SUBSEQUENTLY NOTICE U/S. 263 OF THE ACT WAS ISSUED BY THE LD PRINCIPAL COMMISSIONER OF INCOME-TAX ON 27-07-2016 ON THE GROUND THAT THE AO DID NOT EXAMINE THE DETAILS SUBMITTED BY THE ASSESSEE AND COMPLETED THE ASSESSM ENT (DT. 25.03.2015) WITHOUT CARRYING OUT PROPER ENQUIRIES. THUS THE FIRST ORDE R U/S. 263 OF THE ACT WAS PASSED ON 27-09-2016 SETTING ASIDE THE ASSESSMENT ORDER PASSE D U/S. 143(3) OF THE ACT ON 25-03- 2015 TO BE FRAMED DE NOVO WITH A DIRECTION TO THE AO TO CARRY OUT PROPER EXAMINATION OF BOOKS OF ACCOUNTS AND BANK ACCOUNTS OF ASSESSEE AS WELL AS THAT OF INVESTORS. 8 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. THEREAFTER THE AO WHILE GIVING EFFECT TO THE ORDER OF THE LD. PRINCIPAL COMMISSIONER U/S. 263 OF THE ACT INITIATED REASSESSMENT PROCEEDI NGS IN THE LIGHT OF THE DIRECTIONS ISSUED BY THE LD. PRCIT IN THE 263 ORDER DATED 27. 09.2016. CONSEQUENTLY THE AO ISSUED NOTICE U/S.142(1) OF THE ACT AND AFTER SERV ING THE SAME ON THE ASSESSEE THE AO NOTES THAT THE AR OF THE ASSESSEE APPEARED PURSUAN T TO THE NOTICE U/S. 142(1) OF THE ACT AND PRODUCED THE BOOKS OF ACCOUNTS FOR THE CURR ENT YEAR FILED THE DETAILS OF 2 ND SOURCE OF FUNDS AND ALSO PRODUCED THE BANK STATEMEN TS. AND THE AO NOTES THAT THESE DOCUMENTS WERE VERIFIED ON A TEST CHECK BASIS AND NO ADVERSE INFERENCE WAS FOUND. IT WAS ALSO NOTED BY THE AO THAT SUMMONS U/S. 131 OF T HE ACT WAS ALSO SERVED ON SHRI RAJEEV KUMAR DIRECTOR OF THE COMPANY AND IN RESPON SE SHRI RAJEEV KUMAR HAD PERSONALLY APPEARED BEFORE HIM AND HIS STATEMENT WA S RECORDED. THE AO HAS ALSO RECORDED THE FACT THAT HE HAD EXAMINED AND VERIFIED THE BOOKS OF ACCOUNTS AND THE BANK STATEMENTS OF THE SUBSCRIBER COMPANIES FILED BY THO SE COMPANIES BEFORE THE PREDECESSOR AO IN RESPONSE TO THE NOTICE ISSUED U/S . 133(6) OF THE ACT BY HIM. THUS AFTER EXAMINATION AND RE-EXAMINATION OF RECORDS NO ADVERSE INFERENCE WAS DRAWN BY THE AO. IN VIEW OF THE ENQUIRY CARRIED OUT DURING R E-ASSESSMENT THE AO WAS PLEASED NOT TO MAKE ADDITION OF RS.22 36 50 000/- U/S.68 OF THE ACT WHICH WAS EARLIER MADE IN THE ORIGINAL ASSESSMENT ORDER DATED 25-03-2015. THU S THE AO WHILE CARRYING OUT THE DE NOVO RE-ASSESSMENT PURSUANT TO THE ORDER OF LD. CIT U/S. 263 OF THE ACT WAS PLEASED TO ACCEPT THE EXPLANATION FURNISHED BY THE ASSESSEE IN RESPECT OF CAPITAL INFUSED IN THE FORM OF SHARES AND SHARE PREMIUM TO THE TUNE OF RS. 22 36 50 000/- AND ORDER U/S.263/143(3) OF THE ACT WAS PASSED BY AO ON 28-10 -2016 WHEREIN THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT RS.14 960/-. IN THE SAID ORDER A FRESH ADDITION OF RS.14 400/- WAS MADE U/S. 14A OF THE ACT. SUBSEQUEN TLY BY VIRTUE OF ORDER OF HONBLE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH DATED 21.12.2018 THE ASSESSEE COMPANY M/S. DURJA VINIMAY PVT LTD. STOOD AMALGAMAT ED WITH M/S. NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 AND WHICH FACT WAS INCO RPORATED IN THE ROC RECORDS. ASSESSEE INTIMATED THIS FACT TO THE AO ITO WARD - 11(2) ON 31-01-2019 THAT THE ASSESSEE COMPANY HAS BEEN AMALGAMATED WITH M/S. NIH ON IMPEX PVT. LTD. W.E.F. 01.04.2017. MEANWHILE WITH REGARD TO THE ORDER PA SSED BY AO U/S. 263/143(3) OF THE ACT ON 28-10-2016 THE LEARNED PCIT-4 KOLKATA HAS ISSUED A SHOW CAUSE NOTICE U/S. 263 OF THE ACT DATED 31-12-2018 IN THE NAME OF ERST WHILE COMPANY M/S DURJA 9 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. VINIMAY PVT LTD. AND THEREAFTER THE ORDER U/S. 263 OF THE ACT DATED 12-03-2019 WAS ALSO PASSED IN THE NAME OF THE NON-EXISTENT COMPANY M/S DURJA VINIMAY PVT. LTD. THOUGH THE FACT OF AMALGAMATION WITH THE M/S. NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 WAS BROUGHT TO THE NOTICE OF AO 31.01.20 19 AND THE LD. PR. CIT HAS PASSED THE IMPUGNED ORDER ONLY ON 12.03.2019 IN THE NAME OF CEASED COMPANY I.E. M/S. DURJA VINIMAY PVT. LTD. AGGRIEVED BY THE OR DER OF THE LD. PR. CIT U/S. 263 OF THE ACT THE ASSESSEE HAS FILED THIS APPEAL BEFORE US RAISING THE LEGAL ISSUE WHICH ARE AS FOLLOWS: 1. THAT THE LD. PR. C.I.T. KOLKATA-4 HAS ERRED O N FACTS AND IN LAW IN HAVING ISSUED NOTICE U/S.263 ON THE ERSTWHILE DISSOLVED COMPANY M /S.DURJA VINIMAY PVT. LTD. AND PASSED ORDER DATED 12.03.2019 ON THE SAID NON-EXIST ING COMPANY IN SPITE OF THE FACT THAT BY VIRTUE OF ORDER OF HON'BLE NCLT KOLKATA BENCH D ATED 21.12.2018 THE SAID COMPANY STOOD AMALGAMATED WITH NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 AND ALSO FORMS PART OF ROC RECORDS. 2. THAT THEREFORE AS TSHE IMPUGNED SECOND ORDER O F LD. PR. C.IT. U/S. 263 OF THE ACT DATED 12.03.2019 PASSED ON A NON-EXISTENT AND ERSTW HILE DISSOLVED ENTITY BEING VOID AND AN INCURABLE DEFECT IN THE EYES OF LAW THE SAME SH OULD BE QUASHED MORE SO WHEN THE INFORMATION ABOUT THE MERGER AND SURRENDER OF PAN O F THE AMALGAMATING COMPANY WAS GIVEN TO ITO WARD-12(1) KOLKATA VIDE LETTER DATED 31.01.2019. 7. THE LD. AR ASSAILING THE DECISION OF THE LD. PR . CIT CONTENDED IN RESPECT OF THE LEGAL ISSUE THAT THE IMPUGNED ORDER PASSED U/S. 263 OF THE ACT DATED 12-03-2019 IS A NULLITY SINCE IT IS PASSED AGAINST A NON-EXISTING L EGAL ENTITY. ACCORDING TO HIM THE RE- ASSESSMENT ORDER PASSED BY AO IN THE SECOND ROUND U /S. 263/143(3) OF THE ACT ON 28- 10-2016 THE LEARNED PCIT-4 KOLKATA HAD ERRED IN I SSUING THE SHOW CAUSE NOTICE U/S 263 OF THE ACT DATED 31-12-2018 IN THE NAME OF ERST WHILE COMPANY M/S DURJA VINIMLAY PVT. LTD. AND SINCE THE NOTICE WAS ISSUED IN THE NAME OF M/S DURJA VINIMAY PVT LTD WHICH IS ADMITTEDLY A NON-EXISTENT COMPANY AS ON THE DATE WHEN THE NOTICE U/S. 263 WAS ISSUED THE ASSESSEE DID NOT PARTICIPA TE IN THE REVISION PROCEEDINGS. THEREAFTER THE ASSESSEE ALSO DULY INTIMATED THE AO ITO WARD - 11(2) ON 31-01-2019 THAT THE ASSESSEE COMPANY HAD BEEN AMALGAMATED WITH M/S. NIHON IMPEX PVT. LTD. W.E.F. 01.04.2017 BY VIRTUE OF THE ORDER OF HON'BL E NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH DATED 21.12.2018. HOWEVER IT WAS POI NTED OUT BY THE LD. AR THAT DESPITE THE SAID COMMUNICATION THE IMPUGNED ORDER U/S. 263 OF THE ACT WAS PASSED ON 12-03-2019 IN THE NAME OF THE NON-EXISTENT COMPANY M/S DURJA VINIMAY PVT. LTD. WHICH MAKES THE ORDER BAD IN THE EYES OF LAW. 10 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 8. ACCORDING TO THE LD. AR SINCE THE IMPUGNED ORD ER U/S. 263 OF THE ACT WAS PASSED IN THE NAME OF M/S.DURJA VINIMAY PVT LTD. WH ICH HAD BEEN AMALGAMATED WITH M/S. NIHON IMPEX PRIVATE LIMITED UNDER AN APPROVED SCHEME OF AMALGAMATION W.E.F 01-04-2017 AND WAS NOT IN EXISTENCE AT THE TIME THE SECTION 263 ORDER WAS PASSED DATED 12-03-2019 THE SAID ORDER IS A NULLITY. ACC ORDING TO LD. AR IT IS TRITE LAW THAT ON AMALGAMATION THE AMALGAMATING COMPANY CEASES TO EXIST IN THE EYES OF LAW. ACCORDING TO HIM THE SAID PROPOSITION OF THE ASSES SEE GETS FORTIFIED BY THE RECENT DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F PCIT VS MARUTI SUZUKI INDIA LIMITED (CIVIL APPEAL NO. 5409 OF 2019) PRONOUNCED ON 25TH JULY 2019. IN THIS JUDGMENT OF THE HON'BLE APEX COURT ACCORDING TO LD . AR THE HONBLE SUPREME COURT HAS ELABORATELY DISCUSSED THE FACTS AND THE J UDGMENT DELIVERED BY THE HON'BLE DELHI HIGH COURT IN THE CASES OF M/S. SPICE INFOTAI NMENT LTD. VS. CIT (DELHI) (2012) 247 CTR 500 (AFFIRMED BY THE APEX COURT VIDE ORDER DATED 02-11-2017) WHICH IS IN FAVOUR OF ASSESSEE AND DISTINGUISHED THE CASE OF M /S. SKYLIGHT HOSPITALITY LLP V ACIT (2018) 405 ITR 0296 (DELHI) RELIED UPON BY THE LD. CIT DR FOR THE DEPARTMENT. ACCORDING TO LD. AR IN THIS CASE I.E M/S MARUTI SUZUKI (SUPRA) THE FACTS OF M/S. SKYLIGHT HOSPITALITY LLP (SUPRA) WERE DISTINGUISHED BY THE HON'BLE APEX COURT AND BY PLACING RELIANCE ON THE DECISION IN TH E CASE OF M/S. SPICE INFOTAINMENT (SUPRA) IT WAS HELD THAT 'IN THE PRESENT CASE DESPITE THE FACT THAT THE ASS ESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RE SULT OF THE APPROVED SCHEME OF AMALGAMATION THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME. THE BASIS ON WHICH JURISDICTION WAS INVOKED WAS FUNDAMENTALLY AT ODDS WITH THE LEGAL PRINCIPLE THAT THE AMALGAMATING ENTITY CEASES TO EXIST UPON THE APPROV ED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT I N THE CIRCUMSTANCES CANNOT OPERATE AS AN ESTOPPEL AGAINST LAW. THIS POSITION NOW HOLDS THE F IELD IN VIEW OF THE JUDGMENT OF A CO- ORDINATE BENCH OF TWO LEARNED JUDGES WHICH DISMISSE D THE APPEAL OF THE REVENUE IN SPICE ENFOTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SP ICE ENFOTAINMENT HAS BEEN FOLLOWED IN THE CASE OF THE RESPONDENT WHILE DISMISSING THE SPE CIAL LEAVE PETITION FOR AY 2011-2012. IN DOING SO THIS COURT HAS RELIED ON THE DECISION IN SPICE ENFOTAINMENT. ' 9. THE LD. AR DREW OUR ATTENTION TO THE DECISION RE NDERED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF M/S. SPICE INFOTAINMENT L TD. VS. CIT (DELHI) (2012) 247 CTR 500 WHEREIN IT WAS HELD THAT 'NO DOUBT S WAS AN ASSESSEE AND AN INCORPORATED CO MPANY AND WAS IN EXISTENCE WHEN IT FILED THE RETURNS IN RESPECT OF TWO ASSESSMENT YEARS IN Q UESTION. HOWEVER BEFORE THE CASE COULD BE SELECTED FOR SCRUTINY AND ASSESSMENT PROCEEDINGS CO ULD BE INITIATED S GOT AMALGAMATED WITH 11 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. MC LTD. IT WAS THE RESULT OF THE SCHEME OF THE AMAL GAMATION FILED BEFORE THE COMPANY JUDGE OF THIS COURT WHICH WAS DULY SANCTIONED VIDE ORDERS DT. 11TH FEB. 2004. WITH THIS AMALGAMATION MADE EFFECTIVE FROM 1ST JULY 2003 S CEASED TO EXIST. THAT IS THE PLAIN AND SIMPLE EFFECT IN LAW. THE SCHEME OF AMALGAMATION IT SELF PROVIDED FOR THIS CONSEQUENCE INASMUCH AS SIMULTANEOUS WITH THE SANCTIONING OF TH E SCHEME S WAS ALSO STOOD DISSOLVED BY SPECIFIC ORDER OF THIS COURT. WITH THE DISSOLUTION OF THIS COMPANY ITS NAME WAS STRUCK OFF FROM THE ROLLS OF COMPANIES MAINTAINED BY THE ROC. A COM PANY INCORPORATED UNDER THE INDIAN COMPANIES ACT IS A JURISTIC PERSON. IT TAKES ITS BI RTH AND GETS LIFE WITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW THAT ON AMALGAMATION THE AMALGAMATING COMPANY CEASES TO EX IST IN THE EYES OF LAW. IN VIEW OF THE AFORESAID CLINCHING POSITION IN LAW IT IS DIFFICUL T TO DIGEST THE CIRCUITIOUS ROUTE ADOPTED BY THE TRIBUNAL HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMATED COMPANY AND THERE WAS ONLY A PROCEDURAL DEFECT. AFTER THE SANCT ION OF THE SCHEME ON 11TH FEB. 2004 S CEASED TO EXIST W. E.F 1ST JULY 2003. EVEN IF S HA D FILED THE RETURNS IT BECAME INCUMBENT UPON THE IT AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN P LACE OF THE SAID DEAD PERSON'. WHEN NOTICE U/S. 143(2) WAS SENT THE APPELLANT/AMALGAMATED COM PANY APPEARED AND BROUGHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE HOWEVER DID NOT SUBST ITUTE THE NAME OF THE APPELLANT ON RECORD. INSTEAD THE AO MADE THE ASSESSMENT IN THE NAME OF S WHICH WAS NON- EXISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AN ASSESSMENT ORDER PASSED IN THE NAME OF S WOULD CLEARLY BE VOID. SUCH A DEFECT CANNOT BE TREATED AS PROCEDURAL DEFEC T. MERE PARTICIPATION BY THE APPELLANT WOULD BE OF NO EFFECT AS THERE IS NO ESTOPPEL AGAIN ST LAW. ' 10. ACCORDING TO LD AR THE HONBLE APEX COURT DIST INGUISHED THE FACTS OF M/S. SKYLIGHT HOSPITALITY LLP (SUPRA) IN THE JUDGEMENT OF MARUTI SUZUKI (SUPRA) AND WAS PLEASED TO CONCUR WITH THE DECISION OF THE HONBLE DELHI HIGH COURT IN M/S SPICE INFOTAINMENT. ACCORDING TO LD AR IN M/S. SKYLIGHT HOSPITALITY LLP(SUPRA) THE HONBLE COURT DEALT WITH A SITUATION WHERE A NOTIC E UNDER SECTION 148 WAS ISSUED IN THE NAME OF ERSTWHILE PRIVATE LIMITED COMPANY WHICH GOT CONVERTED TO AN LLP [ LIMITED LIABILITY PARTNERSHIP] AND NOT A CASE OF AM ALGAMATION. THE HONBLE DELHI COURT TAKING NOTE THAT SINCE AS SUCH NO PREJUDICE W AS CAUSED TO THE ASSESSEE THE DEFECT IN NOT RECORDING THE NAME OF THE CONVERTED LLP IN T HE IMPUGNED NOTICE UNDER SECTION 148 WAS A PROCEDURAL DEFECT OR MISTAKE CURABLE UNDE R SECTION 292B IT WAS POINTED OUT BY THE LD AR THAT IN SKYLIGHT HOSPITALITY LLP THE HONBLE DELHI HIGH COURT DISTINGUISHED THE DECISION IN SPICE INFOTAINMENT ON THE GROUND THAT IN THAT CASE ( SPICE INFOTAINMENT )EVEN THE FINAL ASSESSMENT ORDER WAS IN THE NAME OF THE AMALGAMATING COMPANY WHICH WAS A NON-EXISTENT COMPANY ON THE DAT E THE ASSESSMENT ORDER WAS PASSED. 11. THUS ACCORDING TO LD. AR THE FACTS OF CASES DECIDED IN M/S MARUTI SUZUKI AND M/S SPICE INFOTAINMENT ARE SQUARELY APPLICABLE TO T HE FACTS OF THE PRESENT CASE. IT WAS BROUGHT TO OUR KNOWLEDGE THAT IN THE CASE OF BOTH M ARUTI SUZUKI AND SPICE INFOTAINMENT THE ASSESSMENT ORDER WAS PASSED IN TH E NAME OF THE NON-EXISTENT 12 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. AMALGAMATING COMPANY AND THE SAID ORDER PASSED WAS HELD TO BE A NULLITY BY THE HON'BLE APEX COURT. AND IN THE PRESENT CASE OF THE ASSESSEE ALSO THE IMPUGNED ORDER U/S 263 OF THE ACT DATED 12-03-2019 WAS PASSED IN T HE NAME OF THE AMALGAMATING COMPANY M/S DURJA VINIMAY PVT LTD WHICH WAS INDISP UTABLY NOT IN EXISTENCE AT THE TIME WHEN THE SECTION 263 ORDER WAS PASSED AND AS S UCH THE IMPUGNED ORDER PASSED U/S 263 OF THE ACT IS A NULLITY IN LAW AND PRAYED THAT THE IMPUGNED ORDERS BE QUASHED. 12. PER CONTRA LD. CIT DR SUPPORTING THE IMPUGNED O RDER OF LD. PR. CIT DREW OUR ATTENTION TO CHART DRAWN IN THE CASE OF M/S. LIGHT HOUSE MERCHANTS PVT. LTD I.E. ITA NO. 1412/KOL/2019 FOR THE A.Y 2012-13 AND POINTED O UT THAT THE ASSESSEE ONLY INTIMATED THE AO ABOUT THE FACT OF AMALGAMATION ON 08-03-2019 WHEREAS ON 17-12- 2018 THE ASSESSEE COMPANY WAS MERGED WITH M/S. HIP OLINE PVT. LTD. AND IT WAS POINTED OUT BY THE LD. CIT DR THAT THE IMPUGNED ORD ER WAS PASSED ON 12-03-2019 U/S. 263 OF THE ACT. THEREFORE IT WAS CONTENDED THAT EF FECTIVELY THE LD. PR. CIT GOT PRIOR NOTICE OF ONLY FOUR DAYS ABOUT THE FACT THAT THE AS SESSEE MERGED WITH ANOTHER LEGAL ENTITY. ACCORDING TO HIM THE LD PR CIT HAS PASSED THE IMPUGNED ORDER BY ONLY SETTING ASIDE THE RE-ASSESSMENT ORDER AND REMANDED IT BACK TO AO FOR FRAMING OF DE- NOVO ASSESSMENT WHICH IN NO CASE IS GOING TO PREJUDICE THE ASSESSEE. ACCORDING TO THE LD. CIT DR SINCE NO REASSESSMENTS HAVE BEEN FRAMED U/S . 143(3) OF THE ACT AGAINST THE NONEXISTENT COMPANIES NO PREJUDICE IS CAUSED TO TH E ASSESSEE AND THE LD. PR. CIT HAS ONLY SET ASIDE THE ASSESSMENT ORDER AND THEREFORE IT WAS A MERE PROCEDURAL DEFECT AND CAN BE CURED. THE LEARNED CIT DR HAS RELIED ON THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S. SKYLIGHT HOUSPITALITY LLP [ WHICH DECISION HAS BEEN UPHELD BY THE HONBLE APEX COURT] AND SUBMITTED THAT THE 263 SHOW CAUSE NOTICE PROPOSING REVISION OF REASSESSMENT ORDER AS WELL AS THE IMP UGNED ORDER U/S. 263 WILL IN NO WAY PREJUDICE THE ASSESSEE. ACCORDING TO HIM SINCE NO REASSESSMENT LEVYING TAX HAS BEEN FRAMED/MADE AGAINST THE ASSESSEE HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S. ELECTRO HOUSE [19 71]82ITR824(SC) AND ALSO THE CASE OF GITA DEVI AGARWAL VS. CIT [1970]76ITR496(S C) AND DOES NOT WANT US TO INTERFERE IN THE ORDER OF THE LD. PR. CIT WHICH IS IMPUGNED BEFORE US. 13 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 13. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE NOTE THAT M/S. DURJA VINIMAY PVT. LTD. FILED THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION (AY 2012-13) ON 17.09.2012 DECLARING AN INCOME OF R S.560/-. LATER THE CASE OF ASSESSEE WAS SCRUTINIZED BY THE AO WHO WAS PLEASED TO FRAME AN ASSESSMENT ORDER DATED 25.03.2015 UNDER SECTION 143(3) OF THE ACT DE TERMINING TOTAL INCOME OF RS. 22 36 50 560/-. THEREAFTER ON 27.07.2016 THE LD. PR. CIT ISSUED SHOW CAUSE NOTICE DATED 27.07.2016 INTIMATING HIS DESIRE TO EXERCISE HIS REVISIONAL JURISDICTION U/S. 263 OF THE ACT AND THEREAFTER BY ORDER DATED 27.09.2016 LD . PR. CIT WAS PLEASED TO SET ASIDE THE ORDER OF THE AO DATED 25.03.2015 AND DIRECTED D E NOVO ASSESSMENT AS WELL AS DIRECTING HIM TO CARRY OUT PROPER EXAMINATION OF BO OKS OF ACCOUNT AND BANK ACCOUNTS OF ASSESSEE AS WELL AS INVESTORS. 14. THEREAFTER THE AO RECORDS IN THE REASSESSMENT ORDER DATED 28.10.2016 [ IN THE SECOND ROUND OF RE-ASSESSMENT ORDERED BY LD. PR. CI T] THAT THE LD. PR. CIT -4 HAS ALSO DIRECTED THAT THE PROCEEDINGS SHOULD BE INITIATED A T THE EARLIEST AND THE SAME SHOULD BE COMPLETED WITHOUT WAITING FOR THE TIME BARRING DATE . THE AO ALSO OBSERVES THAT THE LD. PR. CIT KOL-4 KOLKATA HAS ALSO DIRECTED HIM T O FOLLOW THE DIRECTION OF LD. PR. CCIT KOLKATA DATED 17.03.2015 IN CONNECTION WITH B OARDS CIRCULAR AND OFFICE MEMORANDUM DATED 07.11.2014 OF CBDT IN RESPECT OF STEPS TOWARDS A NON ADVERSARIAL TAX REGIME. THEN THE AO RECORDS THE F ACT THAT NOTICE U/S. 142(1) DATED 07.10.2016 WAS ISSUED AND SERVED UPON THE ASSESSEE THROUGH SPEED POST AND FIXING DATE OF HEARING ON 17.10.2016 AND IN RESPONSE TO TH E NOTICE U/S. 142(1) DATED 17.10.2016 SHRI MUKESH KR. JHYAWAR FCA THE AUTHO RISED REPRESENTATIVE (HEREINAFTER REFERRED TO AS AR) OF THE ASSESSEE APPEARED AND FIL ED POWER OF ATTORNEY THE DETAILS OF DIRECTORS NAME AND ADDRESS ALONG WITH PAN DATE OF APPOINTMENT AND PRODUCED THE BOOKS OF ACCOUNTS FOR THE AY 2012-13 RELEVANT TO FY 2011-12; AND THE AO ACKNOWLEDGES THAT THE DETAILS OF 2 ND SOURCE OF FUND AND ALSO PRODUCED THE DETAILS OF BANK STATEMENT OF THE ASSESSEE COMPANY WHICH IS MAI NTAINED FROM 01.04.2011 TO 31.03.2012 AND THE AO FINDS THAT ALL THE TRANSACTIO NS WERE DULY REFLECTED IN THE BANK STATEMENT AND THAT ALL THE RELEVANT DOCUMENTS WERE VERIFIED BY HIM ON TEST CHECK BASIS AND THAT THERE WAS NO ADVERSE INFERENCE NEED TO BE DRAWN AGAINST THE ASSESSEE. 14 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 15. THEREAFTER THE AO RECORDS THAT SUMMONS U/S. 13 1 OF THE ACT WAS ISSUED ON 24.10.2016 TO THE DIRECTOR OF THE ASSESSEE COMPANY FIXING THE DATE OF HEARING ON 27.07.2016. AND PURSUANT TO THE SUMMONS THE DIREC TOR SHRI RAJEEV KUMAR APPEARED WITH PHOTO IDENTITY PROOF AND HIS STATEMENT WAS RE CORDED BY THE AO AND PLACED IN THE RECORDS. ACCORDING TO AO (WHICH HE RECORDS IN THE R EASSESSMENT ORDER DATED 28.10.2016) THAT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS U/S 143(3)/263 THE FOLLOWING FEATURES HE NOTED WHICH ARE AS STATED BEL OW:- [ REPRODUCED FROM REASSESSMENT ORDER DATED 28.10.2016] A. DISCHARGE OF ONUS OF LIABILITY BY M/S. DURJA VINIMA Y PVT. LTD. AS UNDER: I) ASSESSEE COMPANY FURNISHED ALL DOCUMENTS AS REQU ISITIONED EARLIER. [II] INFORMATION PROVIDED BY ASSESSEE COMPANY LATER ON TURNED TO BE CORRECT ONE. (ILL) ATTENDANCE OF ONE OF THE PRESENT DIRECTOR OF COMPANY AGAINST SUMMON ISSUED U/S.131 AND RECORDING HIS STATEMENT IS SUFFICIENT. B . RESPONSES OF INVESTORS COMPANIES:- (I) SUBSCRIBING COMPANIES HAS SUFFICIENT CAPITAL FO R INVESTMENTS. (II] SUBSCRIBING COMPANIES ALSO INVESTED IN EQUITY SHARES RELATED TO OTHER COMPANIES. (III) REFERENCE OF CASH DEPOSITS IS NOT FOUND IN TH E STATEMENT OF BANK ACCOUNTS FILED BY INVESTOR COMPANIES. (IV) FINANCIAL TRANSACTIONS MADE DURING FINANCIAL Y EAR 2011-12 BETWEEN M/S. DURJA VINIMAY PVT. LTD. AND INVESTORS COMPANIES FOUND RE PORTED TO REVENUE. (V) NOTICE U/S. 133(6) ISSUED BY THE PREDECESSOR TO ALL THE SHARE HOLDER BEFORE THE ASSESSMENT PROCEEDING /S. 143(3) AND ALL THE SHARE HOLDERS REPLY WAS RECEIVED AND AVAILABLE IN THE RECORDS. C. ON EXAMINATION AND RE-EXAMINATION OF RECORDS CON CLUSION AS STATED ABOVE HAS BEEN MADE : [BY AO] (I) SUBSCRIBING COMPANIES HAD SUFFICIENT CAPITAL AS ON 31.03.2012 AND INVESTMENTS MADE WAS NOT CONFINED TO ASSESSEE COMPANY. [II] BOOKS OF ACCOUNTS MAINTAINED BY THOSE COMPANIE S WERE DULY AUDITED. (III) INVESTING COMPANIES ARE PAN HOLDERS AND FILED THEIR RETURNS. (IV) INFORMATION AS FURNISHED AGAINST NOTICES WERE CROSS VERIFIED AND MATCHED. (VI) FINANCIAL TRANSITIONS WERE DONE THROUGH BANK A CCOUNTS. THEREAFTER THE AO CONCLUDES AND RECORDS HIS FINDING IN VIEW OF FACTS AS STATED ABOVE FINANCIAL TRANSACTIONS RELATED TO RELEVANT PREVIOUS YEAR AS CLAIMED BY ASSESSEE COMPANY APPEARS LEGALLY IN ORDER. REPORTS OF TRANSA CTIONS AND PARTIES INVOLVED IN IT 15 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. ARE ALREADY IN THE NOTICE OF REVENUE. ALL SHARE HOL DER FILES THEIR RETURNS REGULARLY. IN VIEW OF THE FACTS AS STATED ABOVE IT APPEARS THAT A SSESSEE COMPANY DISCHARGED THE BURDEN OF PROOF. ALL TRANSACTIONS ARE ALREADY IN TH E NOTICE OF REVENUE. DURING THE COURSE OF RE-EXAMINATION OF CASE AND INQUIRY IN CO NSIDERATION OF AFORESAID FACTS NO ADVERSE INFERENCE COULD BE DRAWN. TOTAL INCOME ON VERIFICATION OF ACCOUNTS INQUIRIES AND AFTER PROVIDING SUFFICIENT OPPORTUNITY TO ASSES SEE COMPANY IS CONSIDERED AS UNDER. AND THEREAFTER THE AO COMPUTED THE TOTAL INCOME O N 28.10.2016 AT RS.14 960/-. 17. AFTER THE AO HAS GIVEN EFFECT ON 28.10.2016 (SU PRA) AND FRAMED THE RE- ASSESSMENT ORDER IN THE LIGHT OF THE LD PR. CIT ORD ER DATED 27.07.2016 THE ASSESSEE COMPANY GOT AMALGAMATED WITH M/S. NIHON IMPEX PRIVA TE LTD. WE NOTE THAT IT WAS THE RESULT OF THE SCHEME OF AMALGAMATION FILED BEFO RE THE HONBLE NCLT WHICH WAS DULY SANCTIONED VIDE ORDER DATED 21.12.2018. WITH THIS AMALGAMATION MADE EFFECTIVE FROM 01.04.2017 THE ASSESSEE COMPANY [M/S. DURJA V INIMAY PVT. LTD.] CEASED TO EXIST. THAT IS THE PLAIN AND SIMPLE EFFECT IN LAW AS HELD BY THE HONBLE DELHI HIGH COURT IN M/S. SPICE INFOTAINMENT LT.DS VS. CIT (SUP RA). IT IS NOTED THAT THE SCHEME OF AMALGAMATION ITSELF PROVIDED FOR THIS CONSEQUENCES IN AS MUCH AS SIMULTANEOUS WITH THE SANCTIONING OF THE SCHEME THE ASSESSEE M/S. DU RJA VINIMAY PVT. LTD. STOOD DISSOLVED BY SPECIFIC ORDER OF HONBLE NCLT. WITH THE DISSOLUTION OF M/S. DURJA VINIMAY ITS NAME WAS STRUCK OFF FROM THE ROLLS OF T HE COMPANIES MAINTAINED BY THE ROC. THE HONBLE DELHI HIGH COURT IN M/S. SPICE IN FOTAINMENT HAS EXPLAINED THE EFFECT OF DISSOLUTION OF A COMPANY A COMPANY INCOR PORATED UNDER THE INDIAN COMPANIES ACT IS A JURISTIC PERSON. IT TAKES ITS B IRTH AND GETS LIFE WITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW THAT ON AMALGAMATION THE AMALGAMATI NG COMPANY CEASES TO EXIST IN THE EYES OF LAW . THEREFORE THE IMPUGNED ORDER PASSED BY THE LD. PR. CIT IN THE NAME OF M/S. DURJA VINIMAY PVT. LTD. I.E IN THE NAME OF AS SESSEES WHICH CEASED TO EXIST AFTER THE SANCTION OF SCHEME ON 21.12.2018 WITH EFFECT FR OM 01.04.2017 BY THE IMPUGNED ORDER DATED 12.03.209 IS VOID. SINCE THE ASSESSEE S BEFORE US WAS NOT AN EXISTING ENTITY WHEN THE IMPUGNED ORDER WAS PASSED BY THE LD. PR. C IT AND THE FACT WAS THAT THE 16 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. ASSESSEES HAD INFORMED THEIR AOS ABOUT THE ORDER OF DISSOLUTION AND SANCTIONING OF SCHEME BY HONBLE NCLT W.E.F. 01.04.2017 ON THE FOL LOWING DATES: SL. NO. NAME OF COMPANIES DATE OF AMALGAMATION DATE OF INTIMATION TO AO DATE OF 263 ORDER 1. 2. 3. 4. 5. M/S. DURJA VINIMAY PVT. LTD. (MERGED WITH M/S. NIHON IMPEX P. LTD. M/S. GYAN MANDIR TRADECOM P. LTD. (MERGED WITH M/S. NIHON IMPEX P. LTD.) M/S. PARAMATMA VINIMAY P. LTD. (MERGED WITH M/S. WARNER DEALCOM P. LTD.) M/S. ADITI VINTRADE P. LTD. (MERGED WITH M/S. UTKARSH DELER P. LTD.) M/S. LIGHT HOUSE MERCHANTS P. LTD. (MERGED WITH M/. HIPOLINE COMMERCE P. LTD.) 21.12.2018 21.12.2018 25.10.2018 23.10.2018 17.12.2018 31.01.2019 09.02.2019 15.01.2019 15.01.2019 08.03.2019 12.03.2019 12.03.2019 12.03.2019 14.03.2019 12.03.2019 SO WHEN THE DEPARTMENT WAS AWARE OF THE DISSOLUTIO N OF ASSESSEES COMPANIES IT WAS INCUMBENT UPON THE LD. PR. CIT TO TAKE NOTICE OF TH IS FACT AND SUBSTITUTE THE SUCCESSOR COMPANY WHILE PASSING THE IMPUGNED ORDER AFTER GIV ING 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 TH E LD. PR. CIT THE IMPUGNED ORDER PASSED AGAINST THE NON-EXISTING ENTITIES WHICH CEA SED TO EXIST ON THE DATE OF THE IMPUGNED ORDER IS VOID. 18. COMING TO THE LD. CIT DR RELIANCE ON THE ORDER OF M/S SKY LIGHT LLP (SUPRA) WE NOTE THAT IT WAS A CASE OF CONVERSION OF A PRIVA TE LIMITED COMPANY TO LIMITED LIABILITY PARTNERSHIP [LLP] AND NOT A CASE OF DISSO LUTION & AMALGAMATION WITH ANOTHER CORPORATE ENTITY AS IN THIS CASE. THEREFORE THE C ASE M/S. SKY LIGHT LLP IS CLEARLY DISTINGUISHABLE AND THEREFORE THE RATIO IS NOT APP LICABLE TO THIS CASE. WE NOTE THAT IN THIS PRESENT CASES/APPEALS THE RATIO OF HONBLE DE LHI HIGH COURT IN M/S. SPICE INFOTAINMENT IS APPLICABLE WHICH ORDER OF HONBLE DELHI HIGH COURT HAS BEEN UPHELD BY THE HONBLE SUPREME COURT BY ORDER DATED 02.11.2 017 REPORTED IN 247 CTR 500 (SC) WHEREIN WE NOTE THAT THE HONBLE SUPREME COURT HAS DISTINGUISHED THE CASE OF M/S. SKY LIGHT HOSPITALITY LLP (SUPRA) IN PCIT V. M ARUTI SUZUKI INDIA LTD. [CIVIL APPEAL NO. 5409 OF 2019] ORDER DATED 25.07.2019. 17 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 19. ON BEHALF OF THE REVENUE RELIANCE HAS BEEN PLA CED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GITA DEVI AGGARWAL VS. CIT (1970) 76 ITR 496 (SC). THAT WAS A CASE WHEREIN THE ASSESSEE HAD CHALLENGED THAT SHE DID NOT RECEIVE THE NOTICE ISSUED BY THE COMMISSIONER WHILE EXERCISING HIS REV ISIONARY POWER U/S. 33B OF 1922 ACT (AS PER 1961 ACT IT IS SEC. 263) AND HAD FILED A WRIT PETITION BEFORE THE HONBLE CALCUTTA HIGH COURT WHICH HAS BEEN DISMISSED BY THE HONBLE HIGH COURT. AND THE SAME WAS CHALLENGED BEFORE THE HONBLE SUPREME COUR T WHEREIN THEIR LORDSHIP CONFIRMED THE ORDER OF THE HONBLE CALCUTTA HIGH CO URT BY OBSERVING THAT SECTION 33B OF 1922 ACT DOES NOT IN EXPRESS TERMS REQUIRE A NOT ICE TO BE SERVED. AND IT WAS ALSO OBSERVED THAT SECTION 33B ONLY REQUIRES THE COMMISS IONER TO GIVE AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND THAT NO NOTICE IS CONTE MPLATED BY SECTION 33B OF THE 1922 ACT. THE SAME VIEW HAS BEEN REITERATED IN THE ORDE R OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S. ELECTRO HOUSE (SUPRA). WE ALSO HAVE NO QUARREL THAT NOTICE TO ASSESSEE IS NOT A CONDITION PRECEDENT FOR INVOKING JURISDICTION U/S. 263 OF THE ACT SO THE SCN FORWARDED IN THE PRESENT CASE BY LD. PR. C IT IN THE NAME OF ERSTWHILE CEASED AMALGAMATING ASSESSEE COMPANIES DOES NOT DENT THE J URISDICTION OF LD. PR. CIT. HOWEVER IT HAS TO BE KEPT IN MIND THAT U/S. 263 GI VING AN OPPORTUNITY TO ASSESSEE BEFORE PASSING ORDER U/S. 263 OF THE ACT IS A NECES SITY AND FAILURE TO GIVE OPPORTUNITY TO ASSESSEE BEFORE PASSING THE ORDER U/S. 263 OF THE A CT WILL MAKE THE ORDER PASSED UNDER SECTION 263 FRAGILE FOR VIOLATION OF NATURAL JUSTIC E AND THUS ILLEGAL. MOREOVER ACCORDING TO US THE ACTION OF THE PR CIT TO HAVE PASSED THE IMPUGNED ORDER UNDER SECTION 263 IN THE NAME OF NON-EXISTENT/AMALGAMATING COMPANIES IS BAD IN LAW AND THEREFORE THESE TWO DECISIONS CITED BY THE LD. CIT DR DO NOT COME TO THE AID OF THE DEPARTMENT AND SINCE WE HAVE ALREADY TAKEN NOTE THAT THE RATIO DEC IDENDI OF THE HONBLE DELHI HIGH COURT IN M/S. SKYLIGHT HOSPITALITY LLP VS. ACIT IS DISTINGUISHABLE ON THE FACTS OF THESE CASES AND THE HONBLE SUPREME COURT HAS DISTI NGUISHED THE ORDER OF THE HONBLE DELHI HIGH COURT IN M/S. SKYLIGHT HOSPITALITY LLP V IS-A-VIS THAT OF THE HONBLE DELHI HIGH COURT DECISION IN SPICE INFOTAINMENT LTD. WE NOTE THAT THE FACTS OF CASES DECIDED IN M/S MARUTI SUZUKI AND M/S SPICE INFOTAIN MENT ARE SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASES BEFORE US. WE NOTE T HAT IN BOTH MARUTI SUZUKI AND SPICE INFOTAINMENT THE ASSESSMENT ORDER WAS PASSED IN TH E NAME OF THE NON-EXISTENT AMALGAMATING COMPANIES AND THE SAID ORDERS PASSED W ERE HELD TO BE A NULLITY BY THE 18 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. HON'BLE APEX COURT. AND IN THE PRESENT CASE OF THE ASSESSEE ALSO THE IMPUGNED ORDER U/S 263 OF THE ACT DATED 12-03-2019 WAS PASSED IN T HE NAME OF THE AMALGAMATING COMPANY M/S DURJA VINIMAY PVT LTD WHICH WAS UNDISP UTEDLY NOT IN EXISTENCE AT THE TIME WHEN THE SECTION 263 ORDER WAS PASSED AND AS S UCH THE IMPUGNED ORDER PASSED U/S 263 OF THE ACT IS A NULLITY IN LAW WE NOTE THAT THE HONBLE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LTD. WAS ADJUDICATING A JUDGMENT OF THE DIVISION BENCH OF THE HONBLE DELHI HIGH COURT WHICH UPHELD THE DECIS ION OF THE INCOME TAX APPELLATE TRIBUNAL. THE TRIBUNAL HELD THAT THE ASSESSMENT MA DE IN THE NAME OF M/S. SUZUKI POWERTRAIN INDIA LTD. FOR THE AY 2012-13 IS A NULLI TY SINCE THE ENTITY HAS BEEN AMALGAMATED WITH M/S. MARUTI SUZUKI INDIA LTD. UNDE R AN APPROVED SCHEME OF AMALGAMATION AND WAS NOT IN EXISTENCE. THE HONBLE SUPREME COURT NOTED THE FACTS OF THE CASE AS UNDER: 5.THE ASSESSEE WAS A JOINT VENTURE BETWEEN M/S. S UZUKI MOTOR CORPORATION AND MARUTI SUZUKI INDIA LTD. THE SHAREHOLDING OF THE TW O COMPANIES IN THE ASSESSEE WAS 70% AND 30%. THE ASSESSEE WAS KNOWN UPON INCORPORAT ION AS SUZUKI METAL INDIA LIMITED. SUBSEQUENTLY WITH EFFECT FROM 8 JUNE 2005 ITS NAME WAS CHANGED TO SPIL. 6. ON 28 NOVEMBER 2012 THE ASSESSEE FILED ITS RETU RN OF INCOME DECLARING AN INCOME OF RS. 212 51 51 156/-. THE RETURN OF INCOME WAS FI LED IN THE NAME OF SPIL (NO AMALGAMATION HAVING TAKEN PLACE ON THE RELEVANT DAT E). 7. ON 29 JANUARY 2013 A SCHEME FOR AMALGAMATION OF SP IL AND MSIL WAS APPROVED BY THE HIGH COURT WITH EFFECT FROM 1 APRIL 2012. THE TERMS OF THE APPROVED SCHEME PROVIDED THAT ALL LIABILITIES AND DUTIES OF THE TRANSFEROR COMPANY SHALL STAND TRANSFERRED TO THE TRANSFEREE COMPANY WITHOUT ANY F URTHER ACT OR DEED. ON THE SCHEME COMING INTO EFFECT THE TRANSFEROR WAS TO STAND DIS SOLVED WITHOUT WINDING UP. THE SCHEME STIPULATED THAT THE ORDER OF AMALGAMATION WI LL NOT BE CONSTRUED AS AN ORDER GRANTING EXEMPTIONS FROM THE PAYMENT OF STAMP DUTY OR TAXES OR ANY OTHER CHARGES IF PAYABLE IN ACCORDANCE WITH LAW. 8 ON 2 APRIL 2013 MSIL INTIMATED THE ASSESSING OFFIC ER OF THE AMALGAMATION. THE CASE WAS SELECTED FOR SCRUTINY BY THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) ON 26 SEPTEMBER 2013 FOLLOWED BY A NOTICE UNDER SE CTION 142(1) TO THE AMALGAMATING COMPANY. 9 ON 22 JANUARY 2016 THE TRANSFER PRICING OFFICER 8 PASSED AN ORDER UNDER SECTION 92CA (3) DETERMINING THE ARMS LENGTH PRICE OF ROYALTY AT 3 PER CENT AND MAKING AN ADJUSTMENT OF RS. 78.97 CRORES IN RESPECT OF ROYALTY PAID BY THE ASSESSEE FOR THE RELEVANT PREVIOUS YEAR. 10 ON 11 MARCH 2016 A DRAFT ASSESSMENT ORDER WAS PASS ED IN THE NAME OF SUZUKI POWERTRAIN INDIA LIMITED (AMALGAMATED WITH MARUTI SUZUKI INDIA LIMITED). THE DRAFT ASSESSMENT ORDER SOUGHT TO INCREASE THE T OTAL INCOME OF THE ASSESSEE BY RS. 78.97 CRORES IN ACCORDANCE WITH THE ORDER OF THE TP O IN ORDER TO ENSURE THAT THE INTERNATIONAL TRANSACTIONS WITH REGARD TO THE PAYME NT OF ROYALTY TO THE ASSOCIATED ENTERPRISES IS AT ARMS LENGTH. 19 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. 11 MSIL PARTICIPATED IN THE ASSESSMENT PROCEEDINGS OF THE ERSTWHILE AMALGAMATING ENTITY SPIL THROUGH ITS AUTHORIZED R EPRESENTATIVES AND OFFICERS. THIS IS EVIDENT FROM THE COPIES OF THE ORDER SHEETS OF T HE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER FOR AY 2012-13. POST AMALGAMA TION ON 30 SEPTEMBER 2013 THE CHARTERED ACCOUNTANTS ADDRESSED A COMMUNICATION TO THE COMMISSIONER OF INCOME TAX CIRCLE 9(1) PURSUANT TO THE NOTICE UNDER SECT ION 143(2) FOR AN ADJOURNMENT OF THE ASSESSMENT PROCEEDINGS FOR AY 2012-13 UNTIL THE ASSESSMENT PROCEEDINGS FOR AY 2010-11 AND AY 2011-12 WERE COMPLETED. ON 27 OCTOBE R 2014 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 9 (1) ADDRESSED A COMMUNICATION TO THE PRINCIPAL OFFICER SPIL SEEKING A RESPONSE TO A DET AILED QUESTIONNAIRE. THEREAFTER ON 4 SEPTEMBER 2015 THE DEPUTY COMMISSIONER OF INC OME TAX CIRCLE 16(1) CALLED FOR DISCLOSURE OF INFORMATION IN THE COURSE OF THE ASSESSMENT FOR AY 2012-13. THE COMMUNICATION WAS ADDRESSED TO: THE PRINCIPAL OFFICER M/S SUZUKI POWER TRAIN INDIA LIMITED (NOW KNOWN AS M/S MARUTI SUZUKI INDIA LIMITED). 12 ON 8 OCTOBER 2015 A COMMUNICATION WAS ADDRESSED BY THE DGM (FINANCE) FOR MSIL IN RESPONSE TO THE NOTICE UNDER SECTION 14 2 (1) ADVERTING TO THE CASE OF SPIL FOR AY 2012-13. 13. ON 12 APRIL 2016 MSIL FILED ITS APPEAL BEFORE THE DISPUTE RESOLUTION PANEL 9 AS SUCCESSOR IN INTEREST OF THE ERSTWHILE SPIL SINCE AMALGAMATED. FORM 35A WAS VERIFIED BY MR KENICHI AYUKAWA MANAGING DIRECTOR & CEO OF MSIL. THE GROUNDS OF APPEAL BEFORE THE DRP DID NOT ALLUDE TO THE OBJE CTION THAT THE DRAFT ASSESSMENT ORDER WAS PASSED IN THE NAME OF SPIL (AMALGAMATED W ITH MSIL) OR THAT THIS DEFECT WOULD RENDER THE ASSESSMENT PROCEEDINGS INVALID. 14 ON 14 OCTOBER 2016 THE DRP ISSUED ITS ORDER IN THE NAME OF MSIL (AS SUCCESSOR IN INTEREST OF ERSTWHILE SPIL SINCE AMALG AMATED). 15 THE FINAL ASSESSMENT ORDER WAS PASSED ON 31 OCTOBER 2016 IN THE NAME OF SPIL (AMALGAMATED WITH MSIL) MAKING AN ADDITION OF RS. 78.97 CRORES TO THE TOTAL INCOME OF THE ASSESSEE. WHILE PREFERRING AN APPEAL BEFORE THE TRIBUNAL THE ASSESSEE RAISED THE OBJECTION THAT THE ASSESSMENT PROCEEDING S WERE CONTINUED IN THE NAME OF THE NON-EXISTENT OR MERGED ENTITY SPIL AND THAT THE FINAL ASSESSMENT ORDER WHICH WAS ALSO ISSUED IN THE NAME OF A NON-EXISTENT ENTITY W OULD BE INVALID. 16 BY ITS DECISION DATED 6 APRIL 2017 THE TRIBUNAL SE T ASIDE THE FINAL ASSESSMENT ORDER ON THE GROUND THAT IT WAS VOID AB INITIO HAVING BEEN PASSED IN THE NAME OF A NON-EXISTENT ENTITY BY THE ASSESSING OFFI CER. THE DECISION OF THE TRIBUNAL WAS AFFIRMED IN AN APPEAL UNDER SECTION 260A BY THE DELHI HIGH COURT ON 9 JANUARY 2018 FOLLOWING ITS EARLIER DECISION IN THE CASE OF THE ASSESSEE FOR AY 2011-12. THAT HAS GIVEN RISE TO THE PRESENT APPEAL. 20. THE REVENUES CONTENTION HAS BEEN NOTED BY THE HONBLE SUPREME COURT IN PARA 17 OF THE ORDER WHICH IS AS UNDER: 20 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. (I) THE HIGH COURT WAS NOT JUSTIFIED IN QUASHING THE FI NAL ASSESSMENT ORDER UNDER SECTION 143 (3) ONLY ON THE GROUND THAT THE A SSESSMENT WAS FRAMED IN THE NAME OF THE AMALGAMATING COMPANY WHICH WAS NOT IN EXISTENCE IGNORING THE FACT THAT THE NAMES OF BOTH THE AMALGAMATED COMPANY AND THE AMALGAMATING COMPANY WERE MENTIONED IN THE ASSESSMENT ORDER; (II) EVEN ON THE HYPOTHESIS THAT THE ASSESSMENT ORDER WA S FRAMED INCORRECTLY IN THE NAME OF THE AMALGAMATING COMPANY IT WOULD A MOUNT TO A MISTAKE DEFECT OR OMISSION WHICH IS CURABLE UNDER SECTION 292B WH EN THE ASSESSMENT IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDI NG TO THE INTENT AND PURPOSE OF THE ACT; (III) DURING THE ASSESSMENT PROCEEDINGS AND THE SUBSEQUEN T PROCEEDINGS IN APPEAL THE AMALGAMATING COMPANY WAS DULY REPRESENT ED BY THE AMALGAMATED COMPANY. NO PREJUDICE WAS CAUSED TO ANY OF THE PART IES BY THE ASSESSMENT ORDER AND HENCE RENDERING THE ASSESSMENT ORDER INVALID ON A MERE TECHNICALITY WOULD BE INCORRECT IN LAW. THERE WAS EFFECTIVE PARTICIPAT ION OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS AND THERE WAS NO DOUBT IN TH E MINDS OF THOSE WHO PARTICIPATED ABOUT THE ENTITY IN RELATION TO WHICH THE ASSESSMENT PROCEEDINGS TOOK PLACE; (IV) IN SPICE ENTERTAINMENT LTD. V COMMISSIONER OF SERVICE TAX 10 ( SPICE ENTERTAINMENT ) 11 THE FINAL ASSESSMENT ORDER ONLY REFERRED TO THE N AME OF THE ERSTWHILE ENTITY WHICH WAS NON-EXISTENT AND THERE W AS NO REFERENCE TO THE RESULTING COMPANY. IN DISTINCTION IN THE PRESENT C ASE IN BOTH THE DRAFT AND THE FINAL ASSESSMENT ORDERS THE NAMES OF BOTH THE AMAL GAMATING AND AMALGAMATED COMPANIES WERE MENTIONED; (V) IN PARAGRAPH 11 OF THE DECISION OF THE DELHI HIGH C OURT IN SPICE ENTERTAINMENT IT WAS HELD THAT: 11. AFTER THE SANCTION OF THE SCHEME ON 11 TH APRIL 2004 THE SPICE CEASES TO EXIST W.E.F. 1 ST JULY 2003. EVEN IF SPICE HAD FILED THE RETURNS I T BECAME INCUMBENT UPON THE INCOME TAX AUTHORITIES TO SUBSTI TUTE THE SUCCESSOR IN PLACE OF THE SAID DEAD PERSON. WHEN NOTICE UNDER SECTION 143(2) WAS SENT THE APPELLANT/AMALGAMATED COMPANY APPEARED AN D BROUGHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE HOWEVER DID NOT SU BSTITUTE THE NAME OF THE APPELLANT ON RECORD. INSTEAD THE ASSESSING OFF ICER MADE THE ASSESSMENT IN THE NAME OF M/S SPICE WHICH WAS NON E XISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AND ASSESSMENT ORDER PASSE D IN THE NAME OF M/S SPICE WOULD CLEARLY BE VOID. SUCH A DEFECT CANNOT B E TREATED AS PROCEDURAL DEFECT. MERE PARTICIPATION BY THE APPELL ANT WOULD BE OF NO EFFECT AS THERE IS NO ESTOPPEL AGAINST LAW. FROM THE ABOVE EXTRACT IT WOULD EMERGE THAT IF AN ASSESSMENT ORDER HAD BEEN PASSED ON THE RESULTING COMPANY IT WOULD NOT BE VO ID. HENCE IN THE PRESENT CASE THE ISSUANCE OF A NOTICE UNDER SECTION 143 (2) TO S PIL CANNOT BE CONSIDERED TO BE A JURISDICTIONAL EFFECT WHEN THE ASSESSMENT ORDER C ATEGORICALLY MENTIONS THE NAMES OF THE AMALGAMATED AND AMALGAMATING COMPANIES ; (VI) THE DECISION OF THE DELHI HIGH COURT IN SKYLIGHT HOSPITALITY LLP V ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-28(1) NEW DELHI 12 ( SKYLIGHT HOSPITALITY LLP ) WHICH WAS CONFIRMED BY THIS COURT ON 6 APRIL 20 18 13 DEALT WITH A SITUATION WHERE A NOTICE UNDER SECTION 148 W AS ISSUED IN THE NAME OF A 21 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. NON-EXISTENT PRIVATE LIMITED COMPANY. THE COURT HEL D THAT THE DEFECT IN RECORDING THE NAME OF A NON-EXISTENT COMPANY IN A NOTICE UNDE R SECTION 148 WAS A PROCEDURAL DEFECT OR MISTAKE CURABLE UNDER SECTION 292B SINCE NO PREJUDICE WAS CAUSED TO THE ASSESSEE. THE DELHI HIGH COURT DISTIN GUISHED THE DECISION IN SPICE ENTERTAINMENT ON THE GROUND THAT IN THAT CASE EVEN THE FINAL ASS ESSMENT ORDER WAS IN THE NAME OF A NON-EXISTENT COMPANY; (VII) IN THE PRESENT CASE BOTH THE DRAFT ASSESSMENT ORDE R AND THE FINAL ASSESSMENT ORDER CONTAINED THE NAMES OF THE AMALGAM ATED AND AMALGAMATING COMPANIES AND HENCE IT CANNOT BE HELD THAT THE FINA L ORDER IS IN THE NAME OF A NON-EXISTENT COMPANY. THE ORDER OF THE TPO IS NOT T HE SUBJECT OF A CHALLENGE BY THE ASSESSEE BEFORE ANY FORUM. THE DIRECTIONS OF TH E TPO WERE IMPLEMENTED BY THE ASSESSING OFFICER IN THE DRAFT ASSESSMENT ORDER IN ACCORDANCE WITH SECTION 144C(1) WHICH WAS THEN CHALLENGED BY THE ASSESSEE B EFORE THE DRP UNDER SECTION 144C(2). SINCE THE NAMES OF BOTH THE AMALGAMATED AN D AMALGAMATING COMPANIES WERE MENTIONED IN THE DRAFT ASSESSMENT ORDER AND FI NAL ASSESSMENT ORDER THERE IS NO JURISDICTIONAL DEFECT; (VIII) IN VIEW THE DECISION OF THIS COURT IN KUNHAYAMMED V STATE OF KERALA 14 ( KUNHAYAMMED ) THOUGH THE DOCTRINE OF MERGER DOES NOT APPLY WH EN A SPECIAL LEAVE PETITION IS DISMISSED BEFORE THE GRANT OF LEA VE TO APPEAL WHERE AN ORDER REJECTING A SPECIAL LEAVE PETITION IS A SPEAKING OR DER AND REASONS HAVE BEEN ASSIGNED FOR REJECTING THE PETITION THE LAW STATED OR DECLARED IN SUCH AN ORDER WILL ATTRACT ARTICLE 141; AND (IX) CONSEQUENTLY IN THE ALTERNATIVE IN VIEW OF THE OR DER PASSED BY THIS COURT ON 6 APRIL 2018 IN SKYLIGHT HOSPITALITY LLP ON THE ONE HAND AND THE ORDER DATED 16 JULY 2018 IN THE CASE OF THE PRESENT ASSESSEE FO R AY 2011-12 AND THE EARLIER ORDER DATED 2 NOVEMBER 2017 IN CIT NEW DELHI V SPICE ENFOTAINMENT LTD. 15 ( SPICE ENFOTAINMENT LTD ) THERE APPEARS TO BE A DIRECT CONFLICT OF VIEWS ON THE PRINCIPLE WHETHER A NOTICE ISSUED TO A NON-EXISTENT COMPANY WOULD SUFFER FROM A JURISDICTIONAL ERROR OR WHETHER IT IS A MERE DEFECT OR MISTAKE WHICH WOULD BE GOVERNED BY SECTION 292B. 21. AFTER HEARING THE LD. COUNSEL FOR THE ASSESSEE THE HONBLE SUPREME COURT HAS ADVERTED TO CERTAIN SIGNIFICANT FACETS OF THE PRESE NT CASE (MARUTI SUZUKIS CASE) (I) FIRSTLY THE INCOME WHICH IS SOUGHT TO BE SUBJECTED TO THE CHARGE OF TAX FOR AY 2012-13 IS THE INCOME OF THE ERSTWHILE ENTITY (SPIL ) PRIOR TO AMALGAMATION. THIS IS ON ACCOUNT OF A TRANSFER PRICING ADDITION OF RS. 78.97 CRORES; (II) SECONDLY UNDER THE APPROVED SCHEME OF AMALGAMATION THE TRANSFEREE HAS ASSUMED THE LIABILITIES OF THE TRANSFEROR COMPANY INCLUDING TAX LIABILITIES; (III) THIRDLY THE CONSEQUENCE OF THE SCHEME OF AMALGAMAT ION APPROVED UNDER SECTION 394 OF THE COMPANIES ACT 1956 IS THAT THE A MALGAMATING COMPANY CEASED TO EXIST. IN SARASWATI INDUSTRIAL SYNDICATE LTD. THE PRINCIPLE HAS BEEN FORMULATED BY THIS COURT IN THE FOLLOWING OBSERVATI ONS: 5. GENERALLY WHERE ONLY ONE COMPANY IS INVOLVED I N CHANGE AND THE RIGHTS OF THE SHAREHOLDERS AND CREDITORS ARE VARIED IT AMOUN TS TO RECONSTRUCTION OR REORGANISATION OF SCHEME OF ARRANGEMENT. IN AMALGAM ATION TWO OR MORE 22 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. COMPANIES ARE FUSED INTO ONE BY MERGER OR BY TAKING OVER BY ANOTHER. RECONSTRUCTION OR AMALGAMATION HAS NO PRECISE LEG AL MEANING. THE AMALGAMATION IS A BLENDING OF TWO OR MORE EXISTING UNDERTAKINGS INTO ONE UNDERTAKING THE SHAREHOLDERS OF EACH BLENDING COMP ANY BECOME SUBSTANTIALLY THE SHAREHOLDERS IN THE COMPANY WHICH IS TO CARRY O N THE BLENDED UNDERTAKINGS. THERE MAY BE AMALGAMATION EITHER BY THE TRANSFER OF TWO OR MORE UNDERTAKINGS TO A NEW COMPANY OR BY THE TRANSFER OF ONE OR MORE UNDERTAKINGS TO AN EXISTING COMPANY. STRICTLY AMALGAMATION DOES NOT COVER THE MERE ACQUISITION BY A COMPANY OF THE SHARE CAPITAL OF OTHER COMPANY WHICH REMAINS IN EXISTENCE AND CONTINUES ITS UNDERTAKING BUT THE CONTEXT IN WHICH THE TERM IS USED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISITION. SEE: HALSBURY'S LAWS OF ENGLAND (4TH EDITION VOLUME 7 PARA 1539). TWO COMPA NIES MAY JOIN TO FORM A NEW COMPANY BUT THERE MAY BE ABSORPTION OR BLENDIN G OF ONE BY THE OTHER BOTH AMOUNT TO AMALGAMATION. WHEN TWO COMPANIES ARE MERG ED 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. (IV) FOURTHLY UPON THE AMALGAMATING COMPANY CEASING TO EXIST IT CANNOT BE REGARDED AS A PERSON UNDER SECTION 2(31) OF THE ACT 1961 AGAINST WHOM ASSESSMENT PROCEEDINGS CAN BE INITIATED OR AN ORDER OF ASSESSM ENT PASSED; (V) FIFTHLY A NOTICE UNDER SECTION 143 (2) WAS ISSUED ON 26 SEPTEMBER 2013 TO THE AMALGAMATING COMPANY SPIL WHICH WAS FOLLOWED BY A NOTICE TO IT UNDER SECTION 142(1); (VI) SIXTHLY PRIOR TO THE DATE ON WHICH THE JURISDICTIO NAL NOTICE UNDER SECTION 143 (2) WAS ISSUED THE SCHEME OF AMALGAMATION HAD BEEN APPROVED ON 29 JANUARY 2013 BY THE HIGH COURT OF DELHI UNDER THE COMPANIES ACT 195 6 WITH EFFECT FROM 1 APRIL 2012; (VII) SEVENTHLY THE ASSESSING OFFICER ASSUMED JURISDICTI ON TO MAKE AN ASSESSMENT IN PURSUANCE OF THE NOTICE UNDER SECTION 143 (2). THE NOTICE WAS ISSUED IN THE NAME OF THE AMALGAMATING COMPANY IN SPITE OF THE FACT THAT ON 2 APRIL 2013 THE AMALGAMATED COMPANY MSIL HAD ADDRESSED A COMMUNICATION TO THE ASSESSING OFFICER INTIMATING THE FACT OF AMALGAMATION. IN THE ABOVE CONSPECTUS OF THE FACTS THE INITIATION OF ASSESSMENT PROCEEDINGS AGAINST AN ENTITY WHICH HAD CEASED TO EXIST WAS VOI D AB INITIO. 22. THEREAFTER THE HONBLE SUPREME COURT HAS DISTI NGUISHED THE HONBLE DELHI HIGH COURT DECISION IN SKYLIGHT HOSPITALITY LLP WHICH WA S AFFIRMED BY THE HONBLE SUPREME COURT ON 6 TH APRIL 2018 BY OBSERVING AS UNDER: THE SUBMISSION HOWEVER WHICH HAS BEEN URGED ON BE HALF OF THE REVENUE IS THAT A CONTRARY POSITION EMERGES FROM THE DECISION OF THE DELHI HIGH COURT IN SKYLIGHT HOSPITALITY LLP WHICH WAS AFFIRMED ON 6 APRIL 2018 BY A TWO JUDGE B ENCH OF THIS COURT CONSISTING OF HONBLE MR JUSTICE A K SIKRI AND HON BLE MR JUSTICE ASHOK BHUSHAN 33 . IN ASSESSING THE MERITS OF THE ABOVE SUBMISSION IT IS NECESSARY TO EXTRACT THE ORDER DATED 6 APRIL 2018 OF THIS COURT: IN THE PECULIAR FACTS OF THIS CASE WE ARE CONVINC ED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTE D UNDER SECTION 292B OF THE INCOME TAX ACT. 23 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. THE SPECIAL LEAVE PETITION IS DISMISSED. PENDING APPLICATIONS STAND DISPOSED OF. NOW IT IS EVIDENT FROM THE ABOVE EXTRACT THAT IT W AS IN THE PECULIAR FACTS OF THE CASE THAT THIS COURT INDICATED ITS AGREEMENT THAT THE WRONG N AME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR CAPABLE OF BEING CORRECTED UNDER SE CTION 292B. THE PECULIAR FACTS OF SKYLIGHT HOSPITALITY EMERGE FROM THE DECISION OF TH E DELHI HIGH COURT 34 . SKYLIGHT HOSPITALITY AN LLP HAD TAKEN OVER ON 13 MAY 2016 AND ACQUIRED THE RIGHTS AND LIABILITIES OF SKYLIGHT HOSPITALITY PVT. LTD UPON C ONVERSION UNDER THE LIMITED LIABILITY PARTNERSHIP ACT 2008 35 . IT INSTITUTED WRIT PROCEEDINGS FOR CHALLENGING A NOTICE UNDER SECTIONS 147/148 OF THE ACT 1961 DATED 30 MARCH 201 7 FOR AY 2010-2011. THE REASONS TO BELIEVE MADE A REFERENCE TO A TAX EVASION REPOR T RECEIVED FROM THE INVESTIGATION UNIT OF THE INCOME TAX DEPARTMENT. THE FACTS WERE ASCERT AINED BY THE INVESTIGATION UNIT. THE REASONS TO BELIEVE REFERRED TO THE ASSESSMENT ORDER FOR AY 2013-2014 AND THE FINDINGS RECORDED IN IT. THOUGH THE NOTICE UNDER SECTIONS 14 7/148 WAS ISSUED IN THE NAME OF SKYLIGHT HOSPITALITY PVT. LTD. (WHICH HAD CEASED TO EXIST UPON CONVERSION INTO AN LLP) THERE WAS AS THE DELHI HIGH COURT HELD SUBSTANTIA L AND AFFIRMATIVE MATERIAL AND EVIDENCE ON RECORD TO SHOW THAT THE ISSUANCE OF TH E NOTICE IN THE NAME OF THE DISSOLVED COMPANY WAS A MISTAKE. THE TAX EVASION REPORT ADVER TED TO THE CONVERSION OF THE PRIVATE LIMITED COMPANY INTO AN LLP. MOREOVER THE REASONS TO BELIEVE RECORDED BY THE ASSESSING OFFICER ADVERTED TO THE APPROVAL OF THE P RINCIPAL COMMISSIONER. THE PAN NUMBER OF THE LLP WAS ALSO MENTIONED IN SOME OF THE DOCUMENTS. THE NOTICE UNDER SECTIONS 147/148 WAS NOT IN CONFORMITY WITH THE REA SONS TO BELIEVE AND THE APPROVAL OF THE PRINCIPAL COMMISSIONER. IT WAS IN THIS BACKGROU ND THAT THE DELHI HIGH COURT HELD THAT THE CASE FELL WITHIN THE PURVIEW OF SECTION 29 2B FOR THE FOLLOWING REASONS: 18THERE WAS NO DOUBT AND DEBATE THAT THE NOTICE W AS MEANT FOR THE PETITIONER AND NO ONE ELSE. LEGAL ERROR AND MISTAKE WAS MADE IN ADDRE SSING THE NOTICE. NOTICEABLY THE APPELLANT HAVING RECEIVED THE SAID NOTICE HAD FILE D WITHOUT PREJUDICE REPLY/LETTER DATED 11.04.2017. THEY HAD OBJECTED TO THE NOTICE BEING I SSUED IN THE NAME OF THE COMPANY WHICH HAD CEASED TO EXIST. HOWEVER THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE THAT THE NOTICE WAS FOR THEM. IT WAS REPLIED AND DEALT WITH BY THEM. THE FACT THAT NOTICE WAS ADDRESSED TO M/S. SKYLIGHT HOSPITALITY PVT. LTD. A COMPANY WHICH HAD BEEN DISSOLVED WAS AN ERROR AND TECHNICAL LAPSE ON THE PART OF THE RESPONDENT. NO PREJUDICE WAS CAUSED. 28 THE DECISION IN SPICE ENTERTAINMENT WAS DISTINGUISHED WITH THE FOLLOWING OBSERVATIONS: 19. PETITIONER RELIES ON SPICE INFOTAINMENT LTD. V . COMMISSIONER OF SERVICE TAX (2012) 247 CTR 500.SPICE CORP. LTD. THE COMPA NY THAT HAD FILED THE RETURN HAD AMALGAMATED WITH ANOTHER COMPANY. AFTER NOTICE UNDER SECTION 147/148 OF THE ACT WAS ISSUED AND RECEIVED IN THE N AME OF SPICE CORP. LTD. THE ASSESSING OFFICER WAS INFORMED ABOUT AMALGAMATION B UT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF THE AMALGAMATED COMPANY A ND NOT IN THE NAME OF AMALGAMATING COMPANY. IN THE SAID SITUATION THE AM ALGAMATING COMPANY HAD FILED AN APPEAL AND ISSUE OF VALIDITY OF ASSESSMENT ORDER WAS RAISED AND EXAMINED. IT WAS HELD THAT THE ASSESSMENT ORDER WAS INVALID. THIS WAS NOT A CASE WHEREIN NOTICE UNDER SECTION 147/148 OF THE AC T WAS DECLARED TO BE VOID AND INVALID BUT A CASE IN WHICH ASSESSMENT ORDER WA S PASSED IN THE NAME OF AND AGAINST A JURISTIC PERSON WHICH HAD CEASED TO EXIST AND STOOD DISSOLVED AS PER 24 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. PROVISIONS OF THE COMPANIES ACT. ORDER WAS IN THE N AME OF NON-EXISTING PERSON AND HENCE VOID AND ILLEGAL. FROM A READING OF THE ORDER OF THIS COURT DATED 6 A PRIL 2018 IN THE SPECIAL LEAVE PETITION FILED BY SKYLIGHT HOSPITALITY LLP AGAINST THE JUDGMENT OF THE DELHI HIGH COURT REJECTING ITS CHALLENGE IT IS EVIDENT THAT THE PEC ULIAR FACTS OF THE CASE WEIGHED WITH THIS COURT IN COMING TO THIS CONCLUSION THAT THERE WAS O NLY A CLERICAL MISTAKE WITHIN THE MEANING OF SECTION 292B. 23. THE HONBLE SUPREME COURT IN THIS CASE AFTER TA KING NOTE OF THE PROVISIONS OF SECTION 292B OF THE ACT IN PARA 31 HELD THAT IN THIS CASE THE NOTICE UNDER SECTION 143(2) UNDER WHICH JURISDICTION WAS ASSUMED BY THE ASSESSING OFF ICER WAS ISSUED TO A NON-EXISTENT COMPANY. THE ASSESSMENT ORDER WAS ISSUED AGAINST TH E AMALGAMATING COMPANY. THIS IS A SUBSTANTIVE ILLEGALITY AND NOT A PROCEDURAL VIOLATI ON OF THE NATURE ADVERTED TO IN SECTION 292B. THEREAFTER THE HONBLE SUPREME COURT CONCL UDED THE ORDER BY HOLDING AS UNDER: IN THE PRESENT CASE DESPITE THE FACT THAT THE AS SESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RE SULT OF THE APPROVED SCHEME OF AMALGAMATION THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME. THE BASIS ON WHICH JURISDICTION WAS INVOKED WAS FUNDAMENTALLY AT ODDS WITH THE LEGAL PRINCIPLE THAT THE AMALGAMATING ENTITY CEASES TO EXIST UPON THE APPROV ED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT I N THE CIRCUMSTANCES CANNOT OPERATE AS AN ESTOPPEL AGAINST LAW. THIS POSITION NOW HOLDS TH E FIELD IN VIEW OF THE JUDGMENT OF A CO- ORDINATE BENCH OF TWO LEARNED JUDGES WHICH DISMISSE D THE APPEAL OF THE REVENUE IN SPICE ENFOTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENFOTAINMENT HAS BEEN FOLLOWED IN THE CASE OF THE RESPONDENT WHILE DISMISSING THE SPECIAL LEAVE PETITION FOR AY 2011-2012. IN DOING SO THIS COURT HAS RELIED ON TH E DECISION IN SPICE ENFOTAINMENT . WE FIND NO REASON TO TAKE A DIFFERENT VIEW. THERE IS A VALUE WHICH THE COURT MUST ABIDE BY IN PROMOTING THE INTEREST OF CERTAINTY IN TAX LITIG ATION. THE VIEW WHICH HAS BEEN TAKEN BY THIS COURT IN RELATION TO THE RESPONDENT FOR AY 201 1-12 MUST IN OUR VIEW BE ADOPTED IN RESPECT OF THE PRESENT APPEAL WHICH RELATES TO AY 2 012-13. NOT DOING SO WILL ONLY RESULT IN UNCERTAINTY AND DISPLACEMENT OF SETTLED EXPECTATION S. THERE IS A SIGNIFICANT VALUE WHICH MUST ATTACH TO OBSERVING THE REQUIREMENT OF CONSIST ENCY AND CERTAINTY. INDIVIDUAL AFFAIRS ARE CONDUCTED AND BUSINESS DECISIONS ARE MADE IN TH E EXPECTATION OF CONSISTENCY UNIFORMITY AND CERTAINTY. TO DETRACT FROM THOSE PRI NCIPLES IS NEITHER EXPEDIENT NOR DESIRABLE. 24. IN THE LIGHT OF THE AFORESAID DISCUSSIONS AND R ELYING ON THE DECISION OF THE HONBLE APEX COURT IN MARUTI SUZUKI (SUPRA) AND SPICE INFOT AINMENT LTD.(SUPRA) WE 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 25 ITA NOS. 1408 TO 1412/KOL/2019 A.Y 2012-13 M/S. DURGA VINIMAY P. LTD & ORS. NULLITY AND THEREFORE WE ARE INCLINED TO QUASH A LL THE IMPUGNED ORDERS AS SHOWN IN THE CAPTIONED APPEALS. 25. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER 2019 SD/- SD/- DR. ARJUN LAL SAINI A.T. VARKEY ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED 22 -11-201 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: M/S. DURJA VINIMAY P.LTD (MERGE D WITH NIHON IMPLEX LTD) 9 CROOKED LANE 1 ST FL ROOM NO. 7A KOLKATA-69/ M/S. GYAN MANDIR TRADECOM P.LTD (MERGED WITH NIHON IMPEX P.LT D) 9 CROOKED LANE 1 ST FL. ROOM NO. 7A KOLKATA-69/ M/S. PARAMTMA VINIMA Y P.LTD (MERGED WITH WARNER DEALCOM P.LTD 9 CROOKED LANE 1 ST FL. ROOM NO. 7A KOLKATA-69/M/S. ADITI VINTRADE P.LTD (MERGED WI TH UTKARSH DEALER P.LTD) 9 CROOKED LANE 1 ST FL. ROOM NO. 7A KOLKATA-69/M/S. LIGHT HOUSE MERCHANTS P.LTD (MERGED WITH HIPOLINE COMMERC E P.LTD) 27A WATERLOO ST. 1 ST FL. KOLKATA-69. 2 RESPONDENT/REVENUE: THE PR. CIT KOL-4 KOLKATA 3. CIT 4. CIT(A) KOLKATA. 5. DR KOLKATA BENCHES KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA