TMI Blog2015 (9) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances in the Spice Infotainment (2011 (8) TMI 544 - DELHI HIGH COURT) wherein their lordships held that the framing of assessment against non-existent entity/person goes to the root of the matter which is not a procedural irregularity curable u/s 292B of the Act and or any other provision but it is a jurisdictional defect because there cannot be framing of any assessment against a dead person or entity which is non-existent on the date of passing or framing assessment order. Thus the assessment order dated 30.11.09 passed u/s 143(3) in the present case in the name of non-existent amalgamating company STIPL having jurisdictional defect is not sustainable and we quash the same. - Decided in favour of assessee. - I.T.A.No.6452/Del/2013, I.T.A.No.6315/Del/2013 - - - Dated:- 26-8-2015 - SHRI N.K. SAINI AND SHRI CHANDRA MOHAN GARG, JJ. For The Appellant : Shri Gaurav Jain, Ms Bhavta Kumari, Advocates For The Respondent : Shri Atiq Ahmad, Sr.DR ORDER PER BENCH These cross appeals by the revenue and the assessee have been directed against the order of CIT(A)-X, New Delhi dated 18.9.2013 in Appeal No. 86/09-10 for AY 2006-07. Assessee s appeal in ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said letter dated 3.10.2008 informed that the scheme of amalgamation has been sanctioned by Hon ble High Court vide order dated 22.8.2008 and the amalgamated company viz. STIPL has accordingly ceased to exist in pursuance to filing such order before the Registrar of Companies (ROC). As per submissions of the appellant SIEPL, letters dated 17.11.2009 and 24.11.2009 were also filed before the AO duly disclosing the factum of amalgamation and subsequent dissolution of the amalgamating company STIPL with amalgamated company SIEPL i.e. present appellant. However, the AO passed impugned assessment order on 30.11.09 u/s 143(3) of the Act in the name of non-existent amalgamating company i.e. STIPL. 4. The assessee carried the matter before the CIT(A) raising the legal obstruction that the impugned assessment order u/s 143(3) has been passed in the name of non-existent company which is void ab initio and bad in law, therefore, the same should be quashed. While dealing with ground no. 1 of the assessee, the CIT(A) dismissed legal contention of the assessee by holding that the AO had completed the assessment based on the return of income filed by the assessee and the AR has nowhere p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate proceedings, the CIT(A) considered all relevant provisions of the Act and factum of the present case and rightly concluded that it is absurd to accept the legal argument that only because STIPL was merged with SIEPL, there would be no obligation or legal follow up of the income tax provisions to complete assessment u/s 143(3) of the Act. Ld. DR vehemently contended that while the return was filed by amalgamating company STIPL, the order passed in its name may be treated as irregular but the same cannot be held as void ab initio or bad in law. 7. On careful consideration of above submissions of both the sides and careful perusal of the relevant material placed on record before us, inter alia, assessment order and the impugned order of the CIT(A), we observe that the assessee raised this legal issue before the first appellate authority and the same was dismissed with following observations and conclusion:- Adjudication: 2.3 After going through the facts of the case, arguments and submissions of the A.R. of the appellant and various judicial pronouncements relied upon by the AR, this ground is being finalized after making the following observations:- (i) On goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 . 17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law In favour of the assessee and against the Revenue and allow these appeals. 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 substitute, the name of the appellant in place of M/s Spice and then issue notice to the appellant. However, such a course of action can be taken by the AO only if it is still permissible as per law and has not become time-barred. 9. Ld. Counsel of the assessee has submitted a comparative chart of the facts of the present case with the case of Spice Infotainment Ltd. (supra) to show us that the facts of the present case are similar to that case. At the very outset, we respectfully note the dicta laid down by the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a jurisdictional defect because there cannot be framing of any assessment against a dead person or entity which is non-existent on the date of passing or framing assessment order. 11. Respectfully following the ratio of the decision of Hon ble High Court in the case of Spice Infotainment Ltd. (supra), we are inclined to hold that the assessment order dated 30.11.09 passed u/s 143(3) of the Act in the name of non-existent amalgamating company STIPL having jurisdictional defect is not sustainable and we quash the same. Accordingly, ground no. 1 and 1.2 of the assessee are hereby allowed. Ground no. 2, 2.1 and 2.2 12. Since we have quashed the original assessment order dated 30.11.2009 by the earlier part of this order, thus, these grounds pertaining to the merits do not survive for adjudication and we dismiss the same. Revenue s appeal in ITA No. 6315/D/2013 13. Since we have quashed the assessment order dated 30.11.09 framed u/s 143(3) of the Act by the earlier part of this order, therefore all subsequent proceedings viz. order of the CIT(A) also becomes unsustainable and these grounds raised by the revenue against first appellate order become academic and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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