TMI Blog2010 (3) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... for admission of the additional grounds raised by the assessee. Since the Revenue had not filed any objection, the additional grounds to cross-objection were admitted. The additional grounds raised by the assessee in cross-objection read as under: "(1) That on the facts and circumstances of the case the reassessment under section 148 of the Income-tax Act, 1961 ('the Act') is null and void since there was no service of notice under that section ; (2) That on the facts and circumstances of the case, the reassessment framed in the name of Milestone Overseas P. Ltd. Which had since amalgamated with Kuber Aqua Minerals Ltd. and had ceased to exist in the eyes of law, was nonest." First we will take up the cross objection raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) ; (3) CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC) ; (4) R. K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC) ; and (5) CIT v. Eshaan Holding P. Ltd. 2009-TIOL 494-HC-DEL-IT. Shri Vikas Malu had ceased to be a director of MOPL. He was not authorized to receive notice in respect of MOPL. Therefore, the notice under section 148 having been served on a person not authorised in law to receive the same could not be said to be validly served. Hence in the absence of valid service of notice the assessment proceedings and the order of reassessment would be liable to be set aside. He placed reliance on the following decisions : (1) CIT v. Mintu Kalita [2002] 253 ITR 334 (Gauhati) ; (2) P. N. Sasikum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR (S.C.) 59 ; and in the case of ITO v. Ram Prasad [1972] 86 ITR 145 (SC) ; decision in the case of CIT v. Surendra Kumar Bhadani [1987] 164 ITR 323 (Patna) ; R.C. Jain (Decd.) v. CIT [2005] 273 ITR 384 (Delhi) ; 140 Taxman 379 ; CIT v. Prabhawati Gupta [1998] 231 ITR 188 (MP) ; and A. Y. Prabhakar (Late), (Individual) v. Asst. CIT [2006] 105 TTJ (Chennai) 391. The learned authorised representative for the assessee further submitted that a company formed and registered under the Companies Act, 1956 had been included as a person chargeable to tax under section 2(31) of the Act. Once a company is amalgamated into another, the same ceases to be a person in the eye of law and, therefore, no assessment or reassessment is permissible after suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated August 18, 2003. Therefore, with effect from April 1, 2003 there was no company in existence by name, M/s. Milestone Overseas P. Ltd. In the case of Express Newspapers Ltd. [1960] 40 ITR 38 (Mad) the hon'ble Madras High Court has held that apart from the fact that the existence of an assessee is essential for an assessment, there cannot be an assessment of a nonexistent person. The definition of the word "assessee" in section 2(2) would obviously apply to a living person. The rule contained in order 22, rule 6 could not, therefore, be applied to the assessment proceedings. The assessment was made after the name of the company was struck off from the Registrar of Companies and, therefore, the assessment framed could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act on an assessee, which did not exist in the sense that it had merged totally in another company is not a curable defect. It goes to the very root of the assessment. The Income-tax Appellate Tribunal, Delhi Bench in the case of Impsat P. Ltd. [2005] 276 ITR (AT) 136 (Delhi) held has that assessment on a company that had ceased to exist after being dissolved under section 560 of the Companies Act, 1956 is a nullity. If the facts of the case before are examined in the light of the aforesaid decisions we find that in the case before us the notice under section 148 of the Act has been issued in the name of the amalgamated company after expiry of almost four years from the date of order passed by the hon'ble Delhi High Court. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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