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2020 (12) TMI 814 - AT - Income TaxNotice u/s 143 to non existing company - scheme or merger adopted - notice in the name of company being merged - HELD THAT:- In the present facts of case, notice under section 143(2) was issued to M/s. Serendipity Infolabs Pvt. Ltd., much prior to date of approval of merger by Hon'ble NCLT, and that, the merger was approved during pendency of assessment before Ld.AO. One more fact brought to our notice by Ld. Sr. DR is that, replies to 143(2) notice are filed by assessee much after the date of approval of merger, and assessee never intimated the same to Ld.AO. She submitted that in final reply dated 21/12/2017 in an internal paragraph assessee intimated it the form of passing reference. Assessment order passed is passed within 4 days of filing of reply dated 21/12/2017. We also note that, even when subsequently assessee filed rectification application before Ld.AO, the same has not been brought to the notice of Ld.AO for correcting the name. We fail to understand the reason, why assessee never brought to notice of Ld.AO regarding the merger and non-existence of M/s. Serendipity Infolabs Pvt. Ltd., immediately after 31/07/2017 in accordance with law. We find the assessment order being passed by Ld.AO in the name of M/s. Serendipity Infolabs Pvt. Ltd., is mere irregularity, which is rectifiable under 292B of the Act. Ld.AO is directed to take necessary steps to rectify the same. Addition u/s 56 (2)(viib) - As submitted by Ld.AR that assessee is a venture capital Undertaking receiving monies from other Venture Capital Funds - as assessee is governed by Regulation 2 of the Venture Capital Regulations as per section 10(23FB) and that provisions of section 56(viib) do not apply to assessee as the funds are received from non resident Venture Capital Funds - HELD THAT:- Authorities below have not considered the materials available on record to decide the issue on merits. We are therefore remanding the issue back to Ld.AO. Assessee is directed to file all necessary documents and evidences in support of its claim and to establish itself to be a Venture Capital Company. Ld.AO shall then consider the issue afresh in light of evidences/documents filed in accordance with law. Needless to say that, proper opportunity shall be granted to assessee in accordance with law.
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