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| The Tax Publishers2020 TaxPub(DT) 3027 (Mad-HC) INCOME TAX ACT, 1961
Section 260A
By virtue of scheme of amalgamation all the existing and future litigation of the transferor company will be transferred and continued in the name of transferee company who subsequently merged with assessee and by virtue of this merger, all litigations pursued against or by both companies should automatically be transferred and would be continued in the name of assessee, since, Tribunal had simply rejected the appeal, on the ground that appeal was filed in the name of non-existing person, therefore, Tribunal was directed to decide the appeals of assessee and Revenue on merits.
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Appeal (High Court) - Maintainability of appeal - Memo of appeal filed in the name of the company which lost its identity after its merger -
The only grievance made by assessee was that Tribunal had erred in rejecting the appeal filed by assessee on the technical ground that the memo of appeal was filed in the name of the company M/s. Z which lost its identity after its merger with M/s. A with effect from 1-4-2012 under a scheme duly sanctioned by High Court under the provisions of the Companies Act. It was also brought to notice that M/s. A had subsequently merged with assessee. Assessee claimed that M/s. Z was not in existence on the date of the order passed by AO, TPO and DRP, it was not known as to how the assessee could file an appeal in the name of the non-existent company. Tribunal was of the considered opinion that order passed by AO against the non-existent company on the date of the order cannot stand in the eyes of law. Similarly an appeal filed by the non-existent company also cannot tie treated as a valid appeal. When an appeal is filed in the name of a non-existent company, there cannot be any substitution during the pendency of the proceedings. Held: By virtue of scheme of amalgamation all the existing and the future litigation of the transferor company will be transferred and continued in the name of transferee company viz., M/s.A. This company had subsequently merged with assessee and by virtue of this merger, all the litigations pursued against or by both M/s. Z and M/s. A should automatically be transferred and would be continued in name of assessee. When such being the position, without considering the order of High Court in the matter of amalgamation and the automatic transfer of litigations of transferor companies into transferee company, the Tribunal had simply rejected the appeal, on the ground that appeal was filed in the name of non-existing person. Therefore, Tribunal was directed to decide the appeals of assessee and Revenue on merits.
REFERRED :
FAVOUR : Directions issued
A.Y. :
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