TMI Blog2012 (8) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... section 234D – Held that:- Section 234D was inserted by the Finance Act, 2003 with effect from 1.6.2003. Thus the same would be applicable with effect from the assessment year 2004-05 - CIT(A) rightly deleted the interest under section 234D imposed by the Assessing Officer - ground raised by the Revenue is dismissed - ITA No.663/Mds/2011, ITA No.559 /Mds/2011 - - - Dated:- 17-4-2012 - O K Narayanan, Vikas Awasthy, JJ. For Appellant: Mr Sriram Seshadri, CA For Respondent: Mr A Rai, CIT DR Mr K E B Rangarajan, Jr. Standing Counsel ORDER Per: Vikas Awasthy: These two cross appeals filed by the assessee and the Revenue are directed against the order of CIT(A), Chennai dated 14.01.2011 relating to the assessment year 2000-01. Since both the appeals are arising out of the common order, and issues involved are the same, they are taken up together for adjudication and disposed of by this common order. 2. The facts of the case are that the assessee company is engaged in the manufacture of automative industrial chains. The assessee filed return of income for the assessment year 2000-01 on 27.11.2000 admitting total income of Rs.4,66,18,700/- and claimed refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defective notice of the assessee. The next issue with regard to not passing a separate order disposing of objection of the assessee by the Assessing Officer, the CIT(A) relying upon the judgement of Hon ble Supreme Court in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers P.Ltd., reported as 291 ITR 500(SC) dismissed the ground of the assessee. The learned CIT(A) also dismissed the contention of the assessee that if the Assessing Officer does not assess the income for which notice under section 148 was issued, he cannot assess other income under section 147. Similarly, the learned CIT(A) dismissed the appeal of the assessee on the ground of exclusion of 90% of total expenses under section 80HHC. However, the learned CIT(A) allowed the issue pertaining to omission to give credit for TDS certificates submitted along with the return of income as well as levy of interest under section 234D and the appeal filed by the assessee was partly allowed by the CIT(A) in the above terms. 5. Now both the revenue and assessee have come in appeal against the impugned order of the CIT(A). The revenue has impugning the order of the CIT(A) in ITA No.559/Mds/2011 on the ground that the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment. 8. The CIT(A) had failed to appreciate while upholding the order of the Assessing Officer excluding 90% of total export benefits by invoking the amended proviso to section 80HHC(3)(1) of the Act which was introduced by Taxation Law (2nd Amendment bill) 2005 with retrospective effect from 1st April, 1998 when such provisions do not exist at the time of filing the original return for the subject assessment year 2000-01. 9. The CIT(A) has failed to appreciate that advance license would not be covered under the new proviso to section 80HHC(3)(1) of the Act, which was introduced by Taxation Law (2nd Amendment bill) 2005, with retrospective effect from 1st April, 1998. 10. The CIT(A) has erred in upholding the order of the Assessing Officer excluding 90% of export benefits comprising of Rs. 66.55 lakhs being profits on captive consumption of DEPB licence by invoking the new proviso to section 80HHC(3)(1) of the Act, which was introduced by Taxation Law (2nd Amendment bill) 2005, with retrospective effect from 1st April, 1998 which was not a subject matter of reopening the assessment. 11. The CIT(A) has failed to appreciate that captive consumption of DEPB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion void, illegal and totally without any jurisdiction. The learned A.R. also relied on the judgement of Hon ble Allahabad High Court in the case of Nath Suresh Chand Ram Naresh Vs. CIT., reported as 280 ITR 396 (All) to show that notice served to the wrong person and the proceedings arising out of the sent notice are null and void. Similar view was taken by the Hon ble Delhi High Court in the case of CIT Vs. Vived Marketing in ITA No.273 of 2009 decided on 17.9.2009, wherein it has been held that in case of company which has been dissolved and struck off the register of the Registrar of Companies under the provisions of the Companies Act, there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. 7. The second contention of the learned AR is that the reasons mentioned in the notice under section 148 for reopening of assessment were later dropped. Once the ground on which the assessment was reopened has been dropped, the other incomes cannot be assessed in the reopening proceedings. The learned A.R. for the assessee stated that the issue on which the assessment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the ground that notice was defective on account of merger of M/s. T.I. Diamonds Chain Ltd. with M/s. Tube Investments India Ltd.. He submitted that in view of the provisions of section 292B notice cannot be treated as invalid since the notice was in substance and effect according to the intent and purpose of the Act and was meant for the assessee only. He strongly supported the order passed by the CIT(A) on this issue. 9. We have gone through the submissions made by both the parties. First we take up the appeal of the assesse. The first ground raised by the assesse is regarding validity of reopening of assessment and notice issued to the assessee. Notice under section 148 was issued to the assessee in the name of T.I. Diamond Chain Ltd. on 6.6.2006. After merger of TI Diamond Chain Ltd. with M/s. Tube Investments of India Ltd. with effect from 1.4.2004, M/s. TI Diamond Chain Ltd. lost its identity and ceased to be juristic person. Since the notice was issued in the wrong name it cannot be said that notice was valid. Thus, subsequent proceedings arising therefrom are null and void. Once it has been held that notice itself is bad in law, the proceedings arising therefrom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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