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HIGH COURT OF DELHI
19,20,22-24
HIGH COURT OF DELHI
19,20,22-24
ITA 745/2015
PR. COMMISSIONER OF INCOME TAX (CENTRAL-2) Appellant
Through: Ms. Suruchi Aggarwal, Senior Standing counsel with Ms. Lakshmi Gurung, Junior
Standing counsel &Ms. Radhika Gupta, Advocate.
PR. COMMISSIONER OF INCOME TAX (CENTRAL-2) Appellant
Through: Ms. Suruchi Aggarwal, Senior Standing counsel with Ms. Lakshmi Gurung, Junior
Standing counsel &Ms. Radhika Gupta, Advocate.
VERSUS
MIS MIEVRON PROJECTS PVT. LTD. Respondent with jY4 -< 746/2015 TAX (CENTRAL-2), Appellant
VERSUS
M/S MEVRON PROJECTS PVT. LTD. Respondent
Through
Through
WITH
ITA 748/2015
TAX (CENTRAL-2) Appellant ITA Nos. 745,746,748,749 & 750 of 2015
2015:DHC:11448-DB
TAX (CENTRAL-2) Appellant ITA Nos. 745,746,748,749 & 750 of 2015
2015:DHC:11448-DB
VERSUS
M/S MEVRON PROJECTS PVT. LTD Respondent
WITH
ITA 749/2015
PR. COMMISSIONER OF iNCOME TAX (CENTRAL-2), Appellant
PR. COMMISSIONER OF iNCOME TAX (CENTRAL-2), Appellant
VERSUS
M/S MEVRON PROJECTS PVT. LTD. Respondent And
ITA 750/2015
TAX (CENTRAL-2) .... Appellant
TAX (CENTRAL-2) .... Appellant
VERSUS
M/S MEVRON PROJECTS PVT. LTD.
CORAM:
HON'BLE DR. JUSTICE S.M1JRALIDHAR
HON'BLE MR. JUSTICE VIBHU BAKIIRU
29.09.2015 Respondent CM APPL No.21516 of 2015(exemption) in ITA 748 of 2015
CM APPL No.21517 of 2015(exemption) in ITA 749 of 2015
CM APPL No.21518 of 2015(exemption) in ITA 750 of 2015
Allowed, subject to all just exceptions.
ITA Nos. 745 of 2015, 746 of 2015, 748 of 2015. 749 of 2015 & 750 of 2015
These five appeals by the Revenue are directed against the common order dated 201h
February 2015 passed by the Income Tax Appellate Tribunal
('ITAT') for the Assessment Years ('AYs') 2003-04, 2005-05, 2006-07, 2007-
A search and seizure operation under Section 132 of the Act was carried out in the case of B.K. Dhingra, Poonam Dhingra and Madhusudan Buildcon Pvt.
Ltd on 20th October 2008. Certain documents were purportedly recovered from the residential premises of B.K.Dhingra which were said to belong to the
Respondent Assessee. A notice was issued under Section 153C of the Act to the Assessee first on 81h
July 2010. In response thereto the Assessee filed a return on 18th September 2010 for AY 2003-04 declaring its income. The
Assessing Officer ('AO') by order dated St December 2010 assessed the income as Rs.32,25,180.
In the appeal filed before the Commissioner of Income Tax (Appeals) [CIT
(A)], the Assessee pointed out that following its amalgamation with
H
Windchimes Construction Pvt. Ltd ('WCPL') with effect from 1St April 2008 as per the order of the High Court dated 16th August 2010, the assessment was required to be made on WCPL. Inter alia, reliance was placed on the decisions of this Court in Spice Entertainment Ltd. v. CIT (ITA No. 475 of 2000) and
Pampasar Distillery Ltd. v. ACIT (2007) 15 SOT 331 (ITAT1Kolkj).
The CIT (A), however, noted that in response to the notice under Section
153C the Director of the Assessee had used the letterhead of the Assessee in writing a letter dated I 01h November 2010, in which there was no mention of amalgamation. The CIT (A) also noted that a return of income was filed in the name of the Assessee itself without disclosing the above fact and rejected the ground of the Assessee. The ITAT, however, accepted the contention of the
Assessee that a notice issued under Section 153C of the Act to an entity which had already become non-existent on account of its merger with other company could not be a valid basis for framing an assessment against the Assessee.
This Court has, by a detailed order dated I 9th August 2015 in Pr.
Commissioner of Income Tax v. Images Credit & Portfolio PvL Ltd (ITA
Nos. 582, 584 and 431 of 2015), negatived the challenge by the Revenue to a similar order of the ITAT, which affirmed the order of the CIT (A) and held that continuing proceedings under Section 1 53C of the Act against an entity
ITA JVos. 745,746,748,749 & 750 of 2015 which was not in existence in law deserved to be quashed. The only distinguishing feature in the present case is that while the entity to which the notice was issued under Section 153 C of the Act was in existence on the date of the notice i.e. 61h
July 2010, it ceased to be in existence on the date of framing the assessment pursuant to such notice.
In the present case the defect of the AO in framing an assessment on 31 st
December 2010 against the Assessee by which time it was not in existence on account of its merger with WPCL (effective April 2008) was not a curable defect. Consequently, the impugned order of the ITAT setting aside the order of the CIT (A) does not suffer from any legal infirmity.
No substantial question of law arises for consideration. The appeal is dismissed
SEPTEMBER 29, 2015 S.MURALIDHAR, J q ~~ W Z.
VIBHU BAKHRU, J ITA Nos. 745,746,748,749 & 750 of 2015 Page5of5
HON'BLE MR. JUSTICE VIBHU BAKIIRU
29.09.2015 Respondent CM APPL No.21516 of 2015(exemption) in ITA 748 of 2015
CM APPL No.21517 of 2015(exemption) in ITA 749 of 2015
CM APPL No.21518 of 2015(exemption) in ITA 750 of 2015
Allowed, subject to all just exceptions.
ITA Nos. 745 of 2015, 746 of 2015, 748 of 2015. 749 of 2015 & 750 of 2015
These five appeals by the Revenue are directed against the common order dated 201h
February 2015 passed by the Income Tax Appellate Tribunal
('ITAT') for the Assessment Years ('AYs') 2003-04, 2005-05, 2006-07, 2007-
A search and seizure operation under Section 132 of the Act was carried out in the case of B.K. Dhingra, Poonam Dhingra and Madhusudan Buildcon Pvt.
Ltd on 20th October 2008. Certain documents were purportedly recovered from the residential premises of B.K.Dhingra which were said to belong to the
Respondent Assessee. A notice was issued under Section 153C of the Act to the Assessee first on 81h
July 2010. In response thereto the Assessee filed a return on 18th September 2010 for AY 2003-04 declaring its income. The
Assessing Officer ('AO') by order dated St December 2010 assessed the income as Rs.32,25,180.
In the appeal filed before the Commissioner of Income Tax (Appeals) [CIT
(A)], the Assessee pointed out that following its amalgamation with
H
Windchimes Construction Pvt. Ltd ('WCPL') with effect from 1St April 2008 as per the order of the High Court dated 16th August 2010, the assessment was required to be made on WCPL. Inter alia, reliance was placed on the decisions of this Court in Spice Entertainment Ltd. v. CIT (ITA No. 475 of 2000) and
Pampasar Distillery Ltd. v. ACIT (2007) 15 SOT 331 (ITAT1Kolkj).
The CIT (A), however, noted that in response to the notice under Section
153C the Director of the Assessee had used the letterhead of the Assessee in writing a letter dated I 01h November 2010, in which there was no mention of amalgamation. The CIT (A) also noted that a return of income was filed in the name of the Assessee itself without disclosing the above fact and rejected the ground of the Assessee. The ITAT, however, accepted the contention of the
Assessee that a notice issued under Section 153C of the Act to an entity which had already become non-existent on account of its merger with other company could not be a valid basis for framing an assessment against the Assessee.
This Court has, by a detailed order dated I 9th August 2015 in Pr.
Commissioner of Income Tax v. Images Credit & Portfolio PvL Ltd (ITA
Nos. 582, 584 and 431 of 2015), negatived the challenge by the Revenue to a similar order of the ITAT, which affirmed the order of the CIT (A) and held that continuing proceedings under Section 1 53C of the Act against an entity
ITA JVos. 745,746,748,749 & 750 of 2015 which was not in existence in law deserved to be quashed. The only distinguishing feature in the present case is that while the entity to which the notice was issued under Section 153 C of the Act was in existence on the date of the notice i.e. 61h
July 2010, it ceased to be in existence on the date of framing the assessment pursuant to such notice.
In the present case the defect of the AO in framing an assessment on 31 st
December 2010 against the Assessee by which time it was not in existence on account of its merger with WPCL (effective April 2008) was not a curable defect. Consequently, the impugned order of the ITAT setting aside the order of the CIT (A) does not suffer from any legal infirmity.
No substantial question of law arises for consideration. The appeal is dismissed
SEPTEMBER 29, 2015 S.MURALIDHAR, J q ~~ W Z.
VIBHU BAKHRU, J ITA Nos. 745,746,748,749 & 750 of 2015 Page5of5
JUDGMENT