TMI Blog2018 (5) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships have held that framing of assessment against non-existent entity/person goes to the root of the validity of the assessment which is not a procedural irregularity curable u/s 292B or under any other provision of the Act but it is a jurisdictional defect because there cannot be framing of any assessment order against a dead person or entity which is non-existent on the date of framing/passing assessment order - assessments in the name of nonexistent amalgamating company being jurisdictional defect are not sustainable and, therefore, we quash the same. - Decided in favour of assessee. - ITA No. 92/Del/2014 to 96/Del/2014 And ITA No. 6810/Del/2013 to 6814/Del/2013 - - - Dated:- 8-5-2018 - SHRI G.D. AGRAWAL, HON BLE PRESIDENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed be, on grounds and arguments on merits can be heard later. Therefore, we are proceeding to hear both the parties on the legal ground raised by the assessee in all the five years under appeal wherein the assessee has challenged the framing of the assessments u/s 153A of the Act on the ground that the company was not in existence as on the date of search. 4. The Ld. AR submitted that the Assessing Officer had been duly notified about the merger of the assessee into Pernod Ricard India Private Limited vide letter dated 22.03.2011. Our attention was drawn to the copy of the said letter which has been placed on record. The Ld. AR submitted that pursuant to the order of the Hon ble Delhi High Court, vide order dated 8.10.2010, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the address on the basis of which PAN was allotted but neither the amalgamated company nor the amalgamating company had apparently discharged this statutory obligation. It was also submitted that even if the assessee s argument is accepted that the assessee did not exist on the date of search, it does not negate the fact that Pernod Ricard India Private Limited, the successor company, existed on the date of search. It was submitted that the warrant was executed on it and the Panchnama was drawn in the name of Pernod Ricard India Private Limited though it mentions the name of the assessee also. It was further submitted that it was not a case of issue of notices or assessments in the case of a non-existing person as the assessee company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 143(2) of the Act. In these circumstances, it would be incumbent upon the AO to first 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. 6.1 We find that in the case of the assessee, notices u/s 153 of the Act were issued on 3.12.2102 when, undisputedly, the assessee company was not in existence. As per the order of the Hon ble Delhi High Court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oot of the validity of the assessment which is not a procedural irregularity curable u/s 292B of the Act or under any other provision of the Act but it is a jurisdictional defect because there cannot be framing of any assessment order against a dead person or entity which is non-existent on the date of framing/passing assessment order. 6.2 Respectfully following the ratio of the judgment of the Hon'ble High Court in the case of Spice Entertainment (supra), we are inclined to hold that the assessments in the name of nonexistent amalgamating company being jurisdictional defect are not sustainable and, therefore, we quash the same. 6.3 Once we have quashed the assessment orders, the various additions made by the Assessing Officer do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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