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2017 (11) TMI 1073 - AT - Income TaxValidity of reopening of assessment - defective notice - notice u/s. 148 issued in the name of amalgamating company - company no more in existence as on the date of service of notice u/s. 148 due to scheme of amalgamation - as per CIT-A the notices issued by AO for reopening assessment u/s. 148 of the Act is not valid and sec. 292B of the Act does not come to the rescue of the AO - Held that:- Since the AO issued notice for reopening u/s. 148 of the Act only against the amalgamating company M/s. NPPL and not against the assessee company which was the amalgamated/successor company, the assessment though made in the name of assessee company is void because, even after the AO came to know that M/s. NPPL got amalgamated with the assessee company did not care to issue 148 and 143(2) notices to the assessee company which is sine qua non and, therefore, the omission in following the law clearly goes to the root of the matter and makes the order ‘null’ in the eyes of law. Also the case of the Assessee Company and issue raised for reopening was before the Hon'ble Settlement Commission, Kolkata for the subject assessment year, it was beyond the jurisdiction of the A.O. to invoke section 147 on the assessee. In the present case, the notice u/s 148 of the Act was issued in the name of a non- existent company which is clearly a case of jurisdictional defect and not a mere procedural irregularity. Provisions of section 292B of the Act are not applicable. The initiation of proceedings against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity or a technical mistake but a jurisdictional defect as there cannot be any assessment against a 'dead person'. - Decided in favour of assessee.
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