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2015 (6) TMI 601 - ITAT DELHI

2015 (6) TMI 601 - ITAT DELHI - TMI - Search and Seizure - Notice u/s 153C - Statutory requirement of filing statement of facts with Form No. 35 was not complied with - whether CIT(A) has erred in law in adjudicating the appeal filed by the assessee? - Held that:- arguments raised by the ld. DR are devoid on merit. Defects in the return of income filed, defects on Form No. 35 which is the form of appeal etc. are to be considered by the respective authorities before whom these are filed and the m .....

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e above facts and respectfully following the decision of Hon'ble Jurisdictional High Court in the case of M/s Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT ] wherein held that the framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person, we hold that the issue of notice under Section 153C in the name of M/s Computer Engineerin .....

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& 252/Del/2014 - Dated:- 29-5-2015 - S. V. Mehrotra, AM And A. T. Varkey, JM,JJ. For the Appellant : Shri Kapil Goel, Adv. For the Respondent : Shri Ramesh Chander, CIT (DR) ORDER Per Bench: 1. These are 22 cross appeals directed against orders passed by the CIT(Appeals)-II, New Delhi pertaining to the Assessment years 2003-04 to 2007-08 in the case of M/s Computer Engineering Services India Pvt. Ltd. and Assessment Years 2003-04 to 2008-09 in the case of M/s Foryu Overseas (P) Ltd. 2. Since the .....

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eas (P) Ltd. in which an additional ground against admission of Cross-Objection preferred by the assessee is challenged by the Revenue, which we dealt with as a preliminary objection and has adjudicated on 30-01-2015. 3. Taking up Assessment year 2003-04 of M/s Computer Engineering Services India (P) Ltd. (ITA No. 5874/D/2013 (Assessee) and 5975/D/2013 (Deptt.) and an additional ground raised by the Revenue in M/s Foryu Overseas (P) Ltd. 4. At the outset, the Ld. CIT, DR, Sri Ramesh Chander, opp .....

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her hand, Ld. AR, Sri Kapil Goel submitted that the assessee have received the notice of Revenue's appeal on 12.09.2014 and promptly has filed the CO on 19.09.2014. So it is well within the time as prescribed by law, so CO is not hit by limitation as contented by the Ld. DR. In the light of the aforesaid submissions of both parties we thought it prudent to find out the question of fact raised before us, so vide order-sheet entry dated 16.01.2015, we have passed the following order:- "Th .....

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eport before 23/Jan/2015 on this written synopsis and also to explain the delay in dispatching the notice/memorandum of appeal (Form 36) to the respondent-assesses. This matter will be heard on 30/Jan/2015." 5. On 21.01.2015, the report of the registry was placed on record as under: "The appeal of the revenue was received in this office on 31/01/2014 and acknowledgement was generated by the computer section 04.02.2014. No notice was issued from 31.01.2014 to 11.09.2014. The grounds of .....

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granted by the Hon'ble Vice President (DZ) on 30.10.2014. Thereafter the cases were fixed for hearing on 11.12.2014 and notice for hearing was generated on 31.10.2014 and issued on 03.11.2014." 6. On 30.01.2015, vide order-sheet entry dated 30.01.2015 after perusing the records and after satisfying ourselves about the veracity of the claim made by the assessee to the objection raised by the Revenue in this regard, we have recorded the finding in this respect as under:- "We have per .....

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of facts with Form No. 35 was not complied with." 9. The ld CIT DR submitted passionately that the assessee as per the statutory Form No. 35 was under a statutory obligation to file statement of fact and this was not complied with. In the absence of this compliance of statutory requirement the appeal was defective in as much as not maintainable and hence ought not to have been adjudicated upon. For non compliance of this statutory requirement the adjudication gets vitiated and argued at len .....

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powers to decide the appeal. It was contended that grounds has been raised in the appeal memo which is self-explanatory. It was submitted that separate filing of facts cannot come in the way in any manner or disabled the CIT(A) while deciding the issue before him. The ld. AR of the assessee pointed that the ld. CIT(A) has called for the remand report and non filing of the statement of facts in no way will affect the lis at hand before the ld. CIT(A). At best it can be called an irregularity whi .....

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of both sides, perused the material placed before us. We are not reproducing the lengthy argument note of the ldDR, because we take note that a Coordinate Bench of this Tribunal in the case of SVP Builders (India) Ltd. vs. DCIT ITA No. 4674/D/2014 dated 19.2.2015 has adjudicated this issue and held as under: "15 Rival contention heard. On a careful consideration of the facts and circumstances of the case, a perusal of the papers on record and the order of the authorities below, as well as .....

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efect in Form No. 35 In our view the arguments raised by the ld. DR are devoid on merit. Defects in the return of income filed, defects on Form No. 35 which is the form of appeal etc. are to be considered by the respective authorities before whom these are filed and the maintainability of the appeal before us cannot be challenged. The right of appeal is a substantive right. Procedural issues can not take away substantial rights of a person. This cannot be a ground for the revenue to challenge th .....

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of assessment in pursuance thereto, reads as under. "5. That on the facts and circumstances of the case and the provision of law, the Ld.CIT(Appeals) has failed to appreciate that initiation of proceedings under Section 153C including issue of notice and also completion of assessment on the company which has already become nonexistent on account of its merger with other company is illegal and bad in law as such the assessment being bad in law deserves to be quashed." 13. An interrelat .....

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under Section 132 of the Income Tax Act (the Act) in the cases of Shri BK Dhingra, Smt.Poonam Dhingra and M/s Madhusudan Buildcon Pvt.Ltd., New Delhi on 20th October,2008. On the basis of documents found from the residential premises of Shri BK Dhingra, which were belonging to the assessee company, proceedings under Section 153C read with S.153A were initiated in the case of the assessee vide notice dated 6th October, 2010. The Assessing Officer completed the assessment vide order dated 31st De .....

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hearing before us, the Ld.Counsel for the assessee first referred and argued ground no.5 of the assessee's appeal. Therefore, we have taken up ground no.5 of the assessee's appeal first for hearing and adjudication. It was stated by the ld. Counsel for the for the assessee that there was amalgamation of the assessee company with M/s Instronics Ltd., the Hon'ble Jurisdictional High Court sanctioned the amalgamation vide order dt. 30.10.2007. That after the order of the amalgamation b .....

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153C is also a nullity. The reliance was placed on the following decision of the various Benches of the ITAT: a) Impsat (P) Ltd. Vs Income Tax Officer, (2004) 91 ITD 354 (Del) b) ACIT Vs SPN Milk Products Industries Pvt. Ltd., ITA No. 565 to 578/Del/2012 order dated 22.01.2012 of ITAT Delhi Benche 'G' New Delhi. c) ACIT Vs Dimension Apparels Pvt. Ltd., ITA No. 571 to 576/Del/2012, order dated 21.06.2013 of ITAT Delhi Bench 'B' New Delhi. d) ACIT Vs Micra India Pvt. Ltd., ITA No. .....

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013 A.Y(s) 2003-04 to 2008-09 dated 11.4.2014 j) Mayank Traders (P) Ltd. vs. ACIT ITA No. 5307/D/2013 A.Y.s 2005-06 dated 28.11.2014 k) M/s Images Credit and Portfolio (P) Ltd. vs. ACIT ITA No. 53010 to 5306/D/2013 A.Y. 2004-05 to 2008-09 15. The reliance was placed on the following judgments of the various Hon'ble High Courts/Hon'ble Supreme Courts: a) Spice Entertainment Ltd. Vs CIT, ITA No. 475 of 2011 judgment dated 08.08.2011 of Hon'ble Delhi High Court b) CIT Vs Express Newspap .....

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axman 75 (Guj.) h) Torrent Pvt. Ltd. Vs CIT, SCA No. 5857 of 2004, judgment dated 29.04.2013 of Hon'ble Gujarat High Court i) CIT vs. Dimension Apparels (P) Ltd. ITA No. 327/2014 (Del) dated 8.7.2014 j) CIT vs. M/s Chanakaya Exports (P) Ltd. ITA No. 684/2014 (Del) dated 12.11.2014 k) CIT vs. Satwant Exports ITA No. 725/2014 (Del) dated 26.11.2014 dated 26.11.2014 l) CIT vs. Micra India (P) Ltd. ITA No. 441, 444 to 446, 452 & 461/2013 dated 22.1.2013 16. Further, as regarding the plea tha .....

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ide a jurisdictional fact and thereafter proceed to impose a levy on a citizen" b) secondly, Hon'ble Supreme Court in Saraswati Industrial Syndicate 1990 Supp. 1 SCR 3/ (186 ITR 278)has 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." c) thirdly, as .....

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in remand report or otherwise it is stated by the ld. AO or ld. CIT(A) that fact of amalgamation was not intimated to ld. AO and on the contrary a express and loud finding is recorded by ld. CIT(A) in impugned orders, that intimation to ld. AO about amalgamation was made late at fag end of assessment proceedings which is sufficient to known of the revenue's instant plea. Further nobody can make exception to order passed by Hon'ble High Court in amalgamation proceedings which is public p .....

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the notice u/s 153C of the Act. Whether the assessee intimated or not the fact remains that M/s Images Credit and Portfolio (P) Ltd. ceased to exist after the approval of amalgamation by the Hon'ble Knowledge of the revenue or not any notice issued in the name of a non existent person is a nullity." e) Sixthly, in recent decision on similar facts, it is held by Hon'ble jurisdictional High Court held as under: The Hon'ble High Court of Delhi decided on 22.1.2015 in the case of Mi .....

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in the proceedings. The AO, in fact took note of the change resultant from the amalgamation and reflected that in the assessment order. The revenue further argues that having participated in the assessment proceedings, it is not open to the assessee to contest their validity; it relies upon section 292B of the Act in support of this contention." f) The learned counsel for the assessee argued that the proceedings against assessee company abated with its dissolution, consequent upon its amal .....

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isturbed. g) The learned counsel for the assessee relied upon two rulings of Hon'ble High Court: Spice Entertainment Ltd. vs. CIT (ITA No. 475/2011; reported in 2012 (280) ELT 43) and CIT vs. Vivid Marketing Services Pvt. Ltd. (ITA 273/2009). h) It was submitted that in the case of Vivid Marketing (supra), it has been held as under: "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 .....

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solution. It was further held that section 159 of the Act, which provides for tax liability to be attached to the legal representatives of a deceased person, is also inapplicable. The language of sectioni 159 ex-facie applies to natural persons, and cannot be extended, through a legal fiction to the dissolution of companies. There is another aspect in these appeals, which is the applicability of section 292B of the Act. Section 292B, interalia prescribes that proceedings etc. initiated cannot be .....

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370 ITR 288. In that case after noticing section 292B, the Court discussed the ruling in Spice Entertainment (supra) wherein it had been held that since the assessment made in such cases is against an amalgamated company in respect of income of the amalgamating company for the period prior to the amalgamation, the income tax authorities are nevertheless under an obligation to substitute the successor in place of the amalgamated company. Thus, "such a defect cannot be treated as procedural d .....

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feree as the company which had to be assessed. Instead, he restored to a peculiar procedure of describing the original assessee as the one in existence; the order also mentioned the transferee's name below that of M/s Micra India Pvt. Ltd. Now, that did not lead to the assessment being completed in the name of the transferee company. According to the AO, M/s Micra India Pvt. Ltd. was still in existence. Clearly, this was a case where the assessment was contrary to law as having being complet .....

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IT-A through supervision Add CIT. In that report, Ld AO has firstly confirmed the factum of amalgamation and secondly has not raised any sort of objection what so ever. This is besides the fact that in Computer case assessee has duly filed a letter to Ld AO specifically communicating fact of amalgamation. On basis of the overwhelming material on records, Ld CIT-A adjudicated the issue which is sought to be complained by revenue on flimsy grounds. In view of above, Ld. Counsel of the assessee veh .....

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no explanation forthcoming as to under what circumstance Ld AO was prevented from raising this ground in original appeal memo which clearly indicates that all is not well with revenue here. Merely because remand report in extant filed by Ld AO supported assessee's case, cannot be a grounds to ignore it or treat is as unreliable. He prayed that validity and sanctity of remand report which is validly filed by Ld AO through official channel to Ld Add CIT, may please be addressed in juxtapositio .....

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can only be at the cost of the national exchequer and must necessarily result in loss of revenue…" 19 He submitted that so volte face and vacillating grounds by revenue, in view of available and speaking remand report, cannot be accepted and deserves to be rejected in limine being sans merit. 20. The ld. CIT, DR on other hand relied upon the order of the authorities below and stated that return of income in response to the notice u/s 153C dated 4.10.2010 was filed on 22.11.2010 in th .....

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ot; for Computer Engineering Services (P) Ltd.". It is also stated that the previous letter dated 26.10.2010 mentioning the amalgamation (referred by the appellant in its written submission) was not addressed to the AO of the appellant and also did not bear the receipt stamp of the Department. It was stated that when the appellant itself filed the return of income in the name of Computer Engineering Services (P) Ltd. and used the letter head of Computer Engineering Services (P) Ltd. to resp .....

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-33, Hastsak Vihar Uttam Nagar, New Delhi Sir/madam, In pursuance of the provisions of section 153C of the Income Tax Act, 1961, inserted by the Finance Act, 2003 with effect from 1 st June 2003, you are required to furnish return of income in respect of assessment year 2003-04 in respect of which you are assessable as company. 2 The return shall be in Form' as prescribed in sub-rule (1) 12 of Income Tax Rules, 1962 and shall be delivered in this office within 15 days of service of this noti .....

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roving the amalgamation of the assessee company with M/s Instronics Ltd. The relevant finding of their Lordships held as under. "THIS COURT DOTH HEREBY SANCTION THE SCHME OF AMALGAMATION set forth in Schedule I annexed hereto and Doth hereby declare the same to be binding on all the shareholders & creditors of the Transferor and Transferee Companies and all concerned and doth approve the said Scheme of Amalgamation with effect from the appointed date i.e. 01.04.2007." 23. Thus thei .....

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ed on 4.10.2010 after the date when M/s Computer Engineering Services (P) Ltd. ceased to exist. The Hon'ble Jursidictional High Court has considered the validity of notice issued under Section 143(2) of the Act after amalgamation in the case of M/s Spice Entertainment Ltd. vide ITA; nos. 475 and 576/2000. Their Lordships held as under. "11. After the sanction of the scheme on 11th April,2004, the Spice ceases to exist w.e.f. 1st July,2003. Even if Spice had filed the returns, it became .....

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the name of M/s Spice 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 estoppels against law." 24. The ratio of the above decision would be squarely applicable to the case of the assessee because the facts are identical. In the above mentioned case notice under section 143(2) of the Act was sent to the company which was not in existence on the date of the issue of notice. Similarly in the ca .....

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els Pvt. Ltd. ITA No. 4956/2015 dated 18.3.2015 whereby it has been held as under: "1. The Revenue is aggrieved by the order of the Income Tax Appellate Tribunal (ITAT) dated 15th July, 2014 in appeals pertaining to Assessment Years 2003-2004 to 2008-2009 (in ITA Nos.5488-5493/Del/ 2011). The ITAT upheld the order of the CIT, inter alia, holding that the assessment in respect of the company which was amalgamated under Sections 391/394 of the Companies Act was invalid. 2. Briefly the necessa .....

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he original assessee (i.e. the transferor under the scheme of amalgamation) had been dissolved pursuant to the amalgamation scheme and approved by the Court and that consequently the return for Assessment Year 2009-2010 had not been filed by the original assessee. A reply to the Revenue's questionnaire was given by the assessee on 12th November, 2010, again bringing to the notice of the authorities that the scheme of amalgamation had dissolved the original assessee in whose shoes the transfe .....

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t the ITAT followed the ruling of this Court in M/s. Spice Entertainment Ltd. vs. CIT, ITA No.475/2011 decided on 3rd August, 2011, subsequently followed in other rulings (refer to Additional Commissioner of Income Tax vs. Micra India Pvt. Ltd., ITA No.446/2013). 4. In view of this consistent view expressed by this Court we are of the opinion that no substantial question of law arises. 5. The appeals are accordingly dismissed." 25. Also Karnataka High Court in the case of CIT vs. M/s Intel .....

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ainment Ltd. (supra) these appeals are dismissed and we decide the substantial questions of law in favour of the assessee and against the revenue. 26 On a similar issue, the Hon'ble Calcutta High Court in the case of I.K. Agencies Pvt. Ltd. vs. CWT 20 taxmann.com 731 has held as under: "That the initiation of the proceedings for reopening of assessment depends upon the service of valid notice in terms of section 17 upon the assessee. A notice issued to a person who is not in existence a .....

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st the assessee who had taken over the liability of A' earlier to the issue of such notice and such fact was also made known to the revenue. Thus, the reassessment proceedings were to be set aside on that ground alone." 27. Similarly, the Hon'ble Jurisdictional High Court vide order dated 17.9.2009 in ITA No. 273/2009 in the case of CIT vs. Vived Marketing Services Pvt. Ltd. (supra) held as under: "When the AO passed the order of assessment against the respondent company, it ha .....

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rfectly valid and in accordance with law. No substantial question of law arises dismissed." 28. Same view has been expressed by the Hon'ble Gujarat High Court on a similar issue in the case of Khurana Engineering Ltd. Vs DCIT (OSD) (2013) 217 Taxman 75 wherein it has been held that the assessment proceedings could not be resorted to in case of amalgamated company. 29. In view of the aforesaid discussion and keeping in view the ratio laid down in the above said judicial pronouncements, w .....

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ation of the assessee company with M/s Instronics Ltd. and also furnished a copy of the order of the Hon'ble Jurisdictional High Court. At that time the Assessing Officer could have issued the notice under Section 153C in the name of the transferor company i.e. M/s Instronics Ltd. Also in AO in the remand report dated 12.1.2012 (pages 81-82 of Paper book) has held as under: "The appellant has contended that proceedings u/s 153C have wrongly been initiated as on date of issue of notice t .....

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.e. Shri B. K. Dhingra is evident from the fact available on record as well as examined and discussed in detail during the assessment proceedings. The proceedings were initiated u/s 153C of the Act in the case of the assessee company after recording satisfaction. The proceedings were initiated on the assessee company as the assessee company amalgamated during FY 2008-09 relevant to Assessment year 2009-10 and prior to the existed in independent capacity. Further the appellant is precluded from c .....

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he circumstances I stand by the additions made in the assessment order and pray that the addition made should be upheld and the prayer of the appellant be rejected." 31. It may be stated here that Coordinate Bench of the Tribunal in the case of M/s Images Credit and Portfolio (P) Ltd. vs. ACIT ITA No. 53010 to 5306/D/2013 A.Y. 2004-05 to 2008-09has held as under: "Whether the assessee intimated about the amalgamation before the issue of notice under Section 153C or not would not be rel .....

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elhi High Court in the case of CIT vs. Micra India (P) Ltd. ITA No. 441, 444 to 446, 452 & 461/2013 dated 22.1.2013 has considering the applicability of section 292B of the Act and the plea regarding participation during the course of assessment held as under: "9. There is another aspect in these appeals, which is the applicability of Section 292B of the Act. Section 292B, inter alia, prescribes that proceedings etc. initiated cannot be deemed invalid "merely by reason of mistake, .....

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) 370 ITR 288 . In that case, after noticing Section 292B, the Court discussed the ruling in Spice Entertainment (supra), wherein it had been held that since the assessment made in such cases is against an amalgamated company in respect of income of the amalgamating company for the period prior to the amalgamation, the income tax authorities are nevertheless under an obligation to substitute the successor in place of the amalgamated company. Thus, "such a defect cannot be treated as procedu .....

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transpose the transferee as the company which had to be assessed. Instead, he resorted to a peculiar procedure of describing the original assessee as the one in existence; the order also mentioned the transferee's name below that of M/s Micra India Pvt. Ltd. Now, that did not lead to the assessment being completed in the name of the transferee company. According to the AO, M/s Micra India Pvt. Ltd. was still in existence. Clearly, this was a case where the assessment was contrary to law, as .....

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der Section 153C has been quashed the assessment completed in pursuance to such notice also cannot survive and the same is also quashed. 34. Before parting with the matter, we would like to deal with the contention of Ld CIT-DR that extant plea of amalgamation as raised by assessee is hit by provisions of section 124(3) of the Act. In this regard, he vociferously argued and tried to persuade us that said provision clearly comes in the way of assessee to raise the plea of assessment on non existi .....

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f K.K. Loomba reported in 241 ITR 152has clearly held that section 124 has applicability to only territorial jurisdiction issue and not to other jurisdictional issues when there is inherent lack of jurisdiction. Further, we wish to commemorate the trite principle that an order which is nullity in the eyes of law, plea relating to the same can be raised at any stage even during collateral proceedings as explained in leading case law of Gujarat High court in case of P.V.Doshi 113 ITR Page 22. 35. .....

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