TMI Blog2018 (7) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... on-existing amalgamating entity (bearing PAN No.AAGCS0438M) instead of the amalgamated/ successor company. Hence, the assessment order passed under section 143(3) read with section 144C of the Act is void ab-initio and the same is liable to be quashed. 3. Ld. counsel for the assessee referring to the draft assessment order dated 10.05.2015 submitted that the name of the assessee has been mentioned as M/s Vertex Customer Services India Pvt. Ltd.. Referring to the order of the DRP dated 21.09.2015, he submitted that the name of the assessee has been mentioned as under :- M/s Vertex Customer Management India Limited (Formerly Vertex Customer Services Private Limited) (Now Merged with Vertex Customer Management India Private Limited). 4. Referring to the final assessment order passed by the Assessing Officer subsequent to the order of the DRP vide order u/s 143(3)/144 dated 23.10.2015, he submitted that the Assessing Officer has passed the order in the name of M/s Vertex Customer Services India Pvt. Ltd.. Referring to the sequence of events, ld. counsel for the assessee drew the attention of the Bench to the following dates :- Sequence of Events ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka High Court in the case of CIT vs. Intel Technology India (P.) Ltd. reported in 380 ITR 372, he submitted that the Hon'ble High Court in the said decision has held that framing an assessment against a non-existent entity is not procedural irregularity but a jurisdictional defect which goes to the root of the matter. In the said decision while dismissing the appeal filed by the Revenue, it was further held that where the proceedings were initiated against a non-existent assessee company even after amalgamation with the successor company and, therefore, the assessment was not valid and the Revenue was not entitled to the benefit of provisions of section 292B of the I.T. Act. In coming to the above decision, the Hon ble Karnataka High Court relied on the decision of the Hon ble Delhi High Court in the case Spice Entertainment Ltd. vs. CIT reported in (2012) 247 CTR 500. He submitted that following the above decisions of the Bangalore Bench of the Tribunal in the case of BMM Ispat Limited reported in 93 taxmann.com 76 has held that the order of assessment for assessment year 2007-08 dated 28.03.2013 is invalid and accordingly it was cancelled as the same was passed after the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. Act. He accordingly submitted that the entire order cannot be quashed and the matter should be restored to the file of the TPO/Assessing Officer with a direction to regularize the procedure. 10. We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. It is an admitted fact that the Hon'ble High Court s order in relation to amalgamation was passed effective on 01.04.2011 wherein Vertex Customer Services India Pvt. Ltd. i.e. original entity was merged with Vertex Customer Management India Private Limited i.e. the new entity. From the details filed by the assessee in the Paper Book, we find the assessee vide letter dated 18.07.2014 filed the fact of amalgamation before the TPO. Further from page 134 of the Paper Book, we find the assessee vide letter dated 08.12.2014 submitted before the TPO regarding the fact of amalgamation. However, we find from the order of the TPO that the TPO vide order dated 21.01.2015 has passed the order in the name of the assessee M/s Vertex Customer Services Private Limited. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in CIT Vs. Norton Motors, 275 ITR 595 in the following manner:- A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P H). That was a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent proceedings were null and void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application. 16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. 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 _ . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ltd. [1960] 40 ITR 38 (Mad), the Madras High Court held that there cannot be an assessment of non-existent person. The assessment in the instant case was made long after the Free Press Company was stuck off from the register of the companies, and it could not be valid. (Emphasis Supplied) 22. On the last contention, i.e with respect to participation by the previous assessee, i.e the amalgamating company (which ceases to exist), again Spice Entertainment Ltd. (supra) is categorical; it was ruled on that occasion that such participation by the amalgamated company in proceedings did not cure the defect, because there can be no estoppel in law. Vived Marketing Servicing (P.) Ltd. (supra) had also reached the same conclusion. 23. It is thus clear that all contentions sought to be urged by the revenue are in respect of familiar grounds, which have been ruled upon, against it, consistently in two decisions of this court. Therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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