TMI Blog2015 (4) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this regard. As long as it is a legal issue, and particularly when it does not require any further investigation of facts, it can be taken up even at the stage of the Tribunal for the first time. The authority for this proposition is contained in Hon’ble Supreme Court decision in NTPC vs. CIT ( 1996 (12) TMI 7 - SUPREME Court). The rights of the appellant and the cross objector are essentially similar and what can be raised in the appeal for the first time before the Tribunal can also be taken up for the first time in the cross objection as well. Thus we uphold the grievance so raised in the cross objection. Accordingly, we hold that the impugned assessment was legal nullity. - Decided in favour of assessee. - I.T.A. No.: 4314/Del/2011, C.O. No.354/Del/2011 - - - Dated:- 30-3-2015 - Pramod Kumar And C.M. Garg JJ. For the Appellant : Smt. A. Misra For the Respondent : Saubhagya Agarwal Prakash Gupta ORDER Per Pramod Kumar: 1. This appeal and the cross objection are directed against the order dated 7th July, 2011 passed by the learned CIT(A) in the matter of assessment under section 153A read with section 143(3) of the Income Tax Act, 1961 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist can file the CO? It is a settled law that future proceedings subsequent to merger can only be pursued by the successor company. In short, the CO filed by the company which did not survive has to be rejected at the very thresh-hold. 1.5 Kindly peruse the Verification done in the CO (Form No.36A). Perusal of this form (Verification) will reveal that the verification is found done by one Amit Jain (I, Amit Jain the respondent). Party before the Tribunal is not Amit Jain, Individual but is Mahagun Builders Ltd. Very clearly Verification is not as per law. Kindly appreciate that Amit Jain is a non-actor in the present proceedings. In short, CO is filed by a stranger to the proceedings and hence need to be dismissed. 1.6 Kindly appreciate that the Verification can only be done by the Managing Director or in his absence by any other Director duly authorised for this purpose. Since, this is not done, the CO needs to be dismissed. 6. Learned counsel for the assessee points out that there is no dispute that the appeal was filed by the Assessing Officer on 29.09.2011 and the cross objection was filed by the assessee on 28.10.2011. It is submitted that both of these date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as named by the appellant Assessing Officer, it was not open to the assessee to put any other name in that column. It is important to appreciate that a cross objection is not a standalone instrument, and if one is to look at column 6 in Form 36A, the respondent and cross objector are assumed to be the same. Under these circumstances, there does not seem to any manoeuvring space in this regard for the cross objector. In view of these discussions, in our considered view, the objections taken by the learned Departmental Representative cannot be sustained in law. We, therefore, reject the same and proceed to take up the matter on merits. 9. Coming to the merits of the cross objection, it is pointed out by the learned Counsel that ADR Home Decor Pvt. Ltd. i.e. the assessee named in this appeal and the impugned orders, was merged in Mahagun India Pvt. Ltd. as per Hon ble Delhi High Court s order dated 10th September, 2007, and, as such, it did not have legal existence as on the point of time when the notice was served and even as on the point of time when survey under section 133A of the Act was conducted on assessee s premises on 26.08.2008. Our attention is drawn to answer given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee has failed to show cause as to why this ground could not be raised earlier while filing the CO it needs to be dismissed straight away for the simple reason that unless bonafide reasons and reasonable cause is shown the assessee cannot be allowed to take Hon ble Tribunal for granted for adjudication of this ground. Kindly appreciate that it is a settled law that even by virtue of Rule 11 reasons have to be shown failing which no leave of the Tribunal can be assumed for hearing it during the course of hearing. 3.3. Secondly, kindly appreciate that the additional ground is filed by the Director Mahagun (India) Ltd. whereas the CO in which the additional ground is raised, is as mentioned, filed by one Amit Jain. Since the additional ground is not filed by the Co-objector it cannot be allowed to be proceeded with. 3.4. Thirdly, kindly appreciate that the additional ground does not arise out of order of the CIT(A) and hence it needs to be rejected. 3.5. Fourthly, the additional ground is found raised for the first time before the Tribunal (not raised earlier before the AO or CIT(A) which means that there was waiver of this issue on assessees s part. After having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question here is which entity must the assessment be made on. The text of Section 170(2) makes it clear that the assessment must be made on the successor (i.e., the amalgamated company). 8. The Supreme Court, in Saraswati Industrial Syndicate (supra) held that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. (Emphasis Supplied) 9. With respect to the specific issue of assessment, in Vived Marketing Servicing Pvt. Ltd. No. (supra) the Court observed that: When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies u/s 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessmsent order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. (Emphasis Supplied) 10. Vived Marketing Servicing Pvt. Ltd. (supra) also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in fact in the name of amalgamated company and there was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved. 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said dead person‟. When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment but is a procedural defect covered by Section 292B of the Act. (Emphasis Supplied) 20. This Court rejected this argument, holding that it [becomes] incumbent upon the Income Tax Authorities to substitute the successor in place of the said dead person . Such a defect cannot be treated as procedural defect once it is found that assessment is framed in the name of nonexisting entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. (Emphasis Supplied) 21. In Spice (supra) the reason for the inapplicability of Section 292-B was additionally premised on the decision of the Punjab Haryana High Court in CIT v. Norton Motor, 275 ITR 595, that while Section 292B can cure technical defects, it cannot cure a jurisdictional defect in the assessment notice. In Spice (supra), therefore, this Court expressly classified the framing of assessment against a non-existing entity/person as a jurisdictional defect. This has been a consistent position. As early as 1960, in CIT v. Express Newspapers, 1960 (40) ITR 38 (Mad), the Madras High Court held that there cannot be an assessment of non-exis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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