TMI Blog2015 (2) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... s void. - assessment in the name of the erstwhile firm is bad in law, void ab-initio and non-est - Decided in favour of assessee. - ITA No.4270/Del/2010, ITA No.4010/Del/2010 - - - Dated:- 22-8-2014 - SHRI G.D. AGRAWAL AND SHRI CHANDRA MOHAN GARG, JJ. For The Revenue by : Smt. Dr. Sudha Kumari, CIT-DR. For The Assessee by : Shri Pradeep Dinodia and Shri R.K. Kapoor, Chartered Accountants. ORDER PER G.D. AGRAWAL, VP : These appeals by the Revenue and the assessee are directed against the order of learned CIT(A)-XXVI, New Delhi dated 28th June, 2010 for the AY 2006-07. 2. At the time of hearing before us, the learned counsel for the assessee stated that since ground No.3 of the assessee s appeal is with regard to validity of the issue of notice under Section 148, it should be decided first and thereafter only, the grounds raised either by the assessee or by the Revenue with regard to various additions deleted/sustained by the learned CIT(A) should be considered. Learned DR has no objection to the above request of the assessee s counsel. Accordingly, we proceed to decide ground No.3 of the assessee s appeal which reads as under:- Without prejudice to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e misguided the Department. That simply mentioning in the letter head as successor to DLF Cyber City cannot be considered to be proper intimation of the dissolution of the firm. She further submitted that the assessee duly participated in the assessment proceedings and, therefore, even if there is any irregularity, that can be rectified by changing the name of the assessee. In support of this contention, she relied upon the following decisions:- (i) CIT Vs. T.V. Sundaram Iyengar and Sons P.Ltd. - [1999] 238 ITR 328 (Madras). (ii) Century Enka Ltd. Vs. DCIT - [2008] 303 ITR (A.T.) 0001 (ITAT Mumbai). (iii) M Corp Global (P) Ltd. Vs. DCIT - ITA No.2024/Del/2008 - A.Y. 2002-03, order dated 29.01.2008. 6. She, therefore, submitted that either the order of learned CIT(A) should be sustained or the matter may be sent to the file of the Assessing Officer to modify the name of the assessee. 7. In the rejoinder, it is stated by the learned counsel that the decision of ITAT Delhi Bench relied upon by the learned DR has been reversed by the Hon'ble Jurisdictional High Court in 247 CTR 500. That another decision of the ITAT is also prior to the above decision of Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the said case were that the above assessee viz., M/s Spice Corporation Ltd. filed the return of income for AY 2002-03 on 30th October, 2002. The assessment was completed under Section 143(3) on 28th March, 2005. Before the CIT(A), the assessee contended that the assessment in the hands of M/s Spice Corporation Ltd. which is a non-entity is not valid because the company stood dissolved consequent upon its amalgamation with M Corp Global (P) Ltd. with effect from 1st July, 2003. The CIT(A) rejected this ground and the assessee was in appeal before the ITAT, Delhi Bench. The ITAT, Delhi Bench restored the matter to the file of the Assessing Officer with the following finding:- 14. In the light of the discussion s made above, we, therefore, hold that the assessment made by the AO, in substance and effect, is not against the non-existent amalgamating company. However, we do agree with the proposition or ratio decided in the various cases relied upon by the learned counsel for the assessee that the assessment made against non-existent person would be invalid and liable to be struck down. But, in the present case, we find that the assessment, in substance and effect. Has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mated company and there was only a procedural defect. After the sanction of the scheme on 11th Feb., 2004, S ceased to exist w.e.f. 1st July, 2003. Even if S had filed the returns, it became incumbent upon the IT authorities to substitute the successor in place of the said dead person . When notice under s. 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the AO made the assessment in the name of S which was non-existing entity on that day. In such proceedings an assessment order passed in the name of S would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 12. Their Lordships further observed :- 18. We may, however, point out that the returns were filed by M/s Spice on the day when it was in existence it would be permissible to carry out the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice under s. 143(2) of the Act. In these circumstances, it would be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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