| COURT: | Delhi High Court |
| CORAM: | Ravindra Bhat J, Vibhu Bakhru J |
| SECTION(S): | 143(3), 170(2) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | amalgamation, dead person, null & void, successor |
| COUNSEL: | Ex-parte |
| DATE: | July 8, 2014 (Date of pronouncement) |
| DATE: | November 7, 2014 (Date of publication) |
| AY: | 2003-04 to 2008-09 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 143(3) assessment on amalgamating company is a nullity. U/s 170(2) assessment has to be on successor. Mistake cannot be cured u/s 292B. Participation by amalgamating company is irrelevant as there is no estoppel against a statute | |
(i) Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that “once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved.
(ii) After the sanction of the scheme, the amalgamating company ceases to exit. Even if the amalgamating company had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said “dead person‟. When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of the amalgamating company which was non existing entity on that day. In such proceedings and assessment order passed in the name of the amalgamating company would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. This is not a mistake that can be cured u/s 292BB.
procedural defect is clearly shows that AO invades on other Acts like companies Act, what so we call these AOs?
obviously AOs think they are some super judges, that itself good enough to discharge such officers as they bring illegal litigation unnecessarily that is a very clear indication the officer action is nothing but unreasonable action under wednesbury principle as also under principle of proportionality too,
my advice to ministry of finance to duly train these officers, else the very ministry would be in trouble with constitutional courts with possible imposition fines by very courts.
care is needed is called ‘discretion is better than valor’ ;
government is a defacto authority while citizen is the dejure sovereign under indian constitution.
Even job of a judge is not easy, when so how AO can usurp the job of a judge to himself, as judges invariably refer to higher judiciary to correct them as also very tribunal members also do , how come ld AOs think they are greatest judges, very funny,
when AO finds his job is difficult better let him resign and yield for one who does a good job, when i went through an income tax inspector from bengal one shankar bose who presented his paper at Ahmedabad Bar tax conference really presented a very good paper on scrutiny cases, so such people need to become AOs that is what i advice the CBDT as also the ministry of finance, after all legal interpretation of statutes is not anybody’s job ; you should have necessary equippment not just some LL.B or LL.M degree but solid court practice that way Apex ct rightly rejected even CAs to represent tax matter before NTT though govt allowed as also ICAI did but court struck down in Madras Bar association v union on NTT Act the result was the very NTT Act is declared ultra vires, i believe itaton line knows!
Even job of a judge is not easy, when so how AO can usurp the job of a judge to himself, as judges invariably refer to higher judiciary to correct them as also very tribunal members also do , how come ld AOs think they are greatest judges, very funny,
when AO finds his job is difficult better let him resign and yield for one who does a good job, when i went through an income tax inspector from bengal one shankar bose who presented his paper at Ahmedabad Bar tax conference really presented a very good paper on scrutiny cases, so such people need to become AOs that is what i advice the CBDT as also the ministry of finance, after all legal interpretation of statutes is not anybody’s job ; you should have necessary equippment not just some LL.B or LL.M degree but solid court practice that way Apex ct rightly rejected even CAs to represent tax matter before NTT though govt allowed as also ICAI did but court struck down in Madras Bar association v union on NTT Act the result was the very NTT Act is declared ultra vires, i believe itaton line knows!