Gaurav India Ltd., Kolkata vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri P. K. Bansal, AM & Shri Mahavir Singh, JM]

I.T.A No.628/Kol/2012 Assessment Year: 2008-09 Income-tax Officer, Wd-7(3), Kolkata. Vs. M/s. Gaurav India Ltd. (PAN:AAACG9494M) (Appellant) (Respondent)

Date of hearing: 26.05.2015 Date of pronouncement: 27.05.2015

For the Appellant: Shri K. L. Kanak, Sr. DR For the Respondent: N o n e

ORDER

Per Shri Mahavir Singh, JM:

This appeal by revenue is arising out of order passed by CIT(A)-VIII, Kolkata vide Appeal No. 197/CIT(A)-VII/Kol/10-11 dated 23.01.2012. Assessment was framed by ITO, Wd-7(3), Kolkata u/s. 143(3)/147 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2008-09 vide his order dated 28.12.2010.

2. At the outset, it is noticed that this appeal is time barred by limitation by 5 days and revenue has filed Condonation petition stating the reason that on 14 th and 15th April, 2012 it was Saturday and Sunday and on 16th & 17th April, 2012 there was a zonal conference of Chief Commissioner of Income-tax and hence, CIT, Kol-3, who was to approve the appeal for filing before ITAT was attending conference, hence appeal papers were prepared on 18.04.2012 and filed before the Tribunal on 19.04.2012. We find that cause given in the petition is reasonable and hence, we condone the delay and admit the appeal.

3. The only issue in this appeal of revenue is against the order of CIT(A) in quashing the reassessment framed u/s. 147 r.w.s. 143(3) of the Act as the assessee is already amalgamated with Dhanani International Ltd. w.e.f. 01.04.2000 by the orders of Hon'ble Calcutta and Gauhati High Courts. For this, revenue has raised following two grounds:

"1. That on the fact and circumstances of the case and in law the Ld. CIT(a)-VIII, Kolkata erred in not considering the fact that the PAN of the present assessee was 2 ITA No.628/K/2012 Gaurav India Ltd.. AY 2008-09

existing on the date of allowing accommodation entries in spite of 'amalgamation' with M/s. Dhanani International Limited on 01.04.2000.

2. That on the fact and circumstances of the case and in law the Ld. CIT(a)-VIII, Kolkata erred in not considering the fact that the assessee had used its PAN for the purpose of accommodation entries when the dates of orders of High court at Calcutta and Guwahati are 07.01.2002 and 20.12.2001 respectively."

4. We have heard Ld. Sr. DR and gone through facts and circumstances of the case. Briefly stated facts are that a notice u/s. 148 of the Act dated 29.03.2010 was issued and served on the assessee on 31.03.2010 by affixation. The reason for reopening was that income to the extent of Rs.16,01,600/- being accommodation entry from Technocom Associates Pvt. Ltd. on 04.04.2002 has escaped assessment. On 08.11.2010, the assessee appeared before the AO and stated that the assessee i.e. Gaurav India Ltd. is amalgamated with Dhanani International Ltd. w.e.f. 01.04.2000 as per the order of Hon'ble Gauhati High Court and no proceedings can be taken up in the case of Dhanani International Ltd. This fact was brought to the notice of ITO, Wd-2, Tinsukia Development Area, Tinsukia, Assam but ITO, Wd-2, Tinsukia sent back the information to the concerned ITO at Kolkata and the relevant fact is noted in the statement of facts of revenue vide para 5, 6 and 7, which read as under:

"5. On 08/11/2010 Sri Anil Sharma, Advocate, appeared and submitted his power of attorney authorized by M/s Dhanani International Limited. He submitted that M/s. Gaurav India Limited has amalgamated with M/s. Dhanani International Ltd. w.e.f. 01/04/2000 by virtue of the Orders of Hon'ble High Court at Guwahati and Calcutta. No separate accounts are prepared and no separate I.T.Return is required to file since then.

(6) A letter No. ITO,Ward-7(3)/Kol/Transfer/2010-11/1011 dated 26.11.2010 'was issued to the I.T.O., Ward-2, Tinsukia, Development Area, Tinsukia-786125 Assam, enclosing copies of note sheets and copies of records/correspondences in all till that day requesting to take necessary steps as per law against M/s. Dhanani International Limited, the amalgamating company assessed under his charge.

(7) In reply, the I.T.O., Ward-2, Tinsukia sent back all the documents with the view that for the assessment year 2003-04 time limit for issuance of notice under section 148 of the Act to M/s. Dhanani International Limited has expired on 31-03-2010. So, nothing could be done at his end at that point of time."

5. This fact was also brought to the notice of the AO during the course of assessment proceedings and this fact has been noted by the AO at para 4, which reads as under:

"In response to the notice u/s.148, Shri Anil Sharma, Advocate, Authorized Representative appeared on 08-11-2010 and submitted his Power of Attorney duly 3 ITA No.628/K/2012 Gaurav India Ltd.. AY 2008-09

authorized by the Director of M/ s. Dhanani International Limited. During the course of hearing, Shri Sharma submitted that M/s. Gaurav India Limited PAN.: AAACG9494M has amalgamated with M/s. Dhanani International Ltd. [AABCD2291A] with effect from 01-04-2000. He further submitted that M/s. Dhanani International Ltd. is assessed in Circle- Tinsukia, Assam. In support of his contention, he also produced photocopies of the certified copy of the orders of Hon'ble High Courts at Guwahati and Calcutta."

But the AO despite this fact made addition of the accommodation entry in the hands of non-existent assessee i.e. Gaurav India Ltd. Aggrieved, assessee preferred appeal before CIT(A), who after going through the order of Hon'ble Gauhati High Court quashed the reassessment proceedings by observing as under:

"After carefully going through the submission of the appellant including the order of the Hon'ble High Court, Guwahati, perusing the assessment order and other materials available on records, I am of the opinion that the A.O. is not justified in not transferring the proceedings to the assessing officer of the amalgamated company and completing the assessment without jurisdiction in respect of a non-existent company in the relevant A.Y. Therefore, the action of the AO is held to be bad in law and ab initio void and thus quashed."

6. Now before us Ld. Sr. DR Shri K. L. Kanak only produced copy down loaded from Income Tax Deptt. Site which shows that Gaurav India Limited is having PAN AAACG9494M whether the PAN exists or not it is not concerned at all. Whether, the assessee exists or not, this is our concerned. Hon'ble Gauhati High Court has allowed amalgamation of the assessee Gaurav India Ltd. with that of Dhanani International Ltd. w.e.f. 01.04.2010. It means that Gaurav India Ltd. ceased to exist from 01.04.2010 and no proceedings can be initiated in this case. Hence, reassessment framed on non- existent person does not survive. Accordingly, the CIT(A) has rightly quashed the reassessment proceedings and we confirm the same. Appeal of revenue is dismissed.

7. In the result, appeal of revenue is dismissed.

8. Order is pronounced in the open court on 27.05.2015.

Sd/- Sd/- (P. K. Bansal) (Mahavir Singh) Accountant Member Judicial Member

Dated : 27th May, 2015

Jd.(Sr.P.S.)

Copy of the order forwarded to: 4 ITA No.628/K/2012 Gaurav India Ltd.. AY 2008-09

1. APPELLANT - ITO, Ward-7(3), Kolkata.

2 Respondent - M/s. Gaurav India Ltd., 119, Park Street, White House, Block-A, Kolkata-700 016. 3. The CIT(A), Kolkata 4. The CIT, Kolkata 5. DR, Kolkata Benches, Kolkata

/True Copy, By order,

Asstt. Registrar.