TMI Blog2018 (11) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant : Dr. Rakesh Gupta, Advocate And Sh. Somil Agarwal, Advocate For The Respondent : Sh. Surender Pal, Sr. DR ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the assessee against the order of ld. CIT(A)-36, New Delhi dated 21.10.2016 for the assessment year 2012-12 on the following grounds : 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction in passing the impugned assessment order and the assessment proceedings is bad in law and against the facts and circumstances of the case and more so when the entity in whose name assessment was framed u/s 143(3) did not exist. 2. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Neelam as unexplained and added the same u/s. 68 of the Act to the total income of the assessee. The reasons for making this addition, as given by the Assessing Officer are that the amount received by the assessee as alleged advance against shares, were not utilized for that purpose but invested as advance given to other parties, as narrated in the assessment order. The reasons for addition are summarized by the Assessing Officer as under : All the advance received was for the purchase of shares of only one company i.e. Akriti Global which is an unlisted company and with no big name or credentials. It is surprising that 6 unrelated persons have given advance for the purchase of shares of only one company which is unlisted. This is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order in appeal before the ld. CIT(A) both on legal ground challenging the jurisdiction of the Assessing Officer to pass the impugned assessment order on non-existent entity/amalgamated company as well as on merits of the addition. The ld. CIT(A), however, after considering the submissions of the assessee rejected the jurisdictional challenge made by the assessee and sustained the addition on merits observing that no arguments were addressed on merits of addition. Aggrieved, the assessee is in appeal before the Tribunal. 4. During the course of hearing, the ld. AR of the assessee submitted that the AO has passed the impugned assessment order by assuming jurisdiction on an entity i.e. 'assessee company, which did not exist on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate Bench in the case of assessee itself for A.Y. 2013-14 (supra), wherein the Tribunal in the identical facts and circumstances has decided the issue in favour of the assessee as under : 8. We have heard the rival submissions and have given thoughtful consideration to the orders of the authorities below and with the assistance of the ld. Counsel for the assessee, we have considered the relevant documentary evidences brought on record in the form of paper book in the light of Rule 18(6) of the ITAT Rules, 1962. It is true that vide order dated 22.08.2014, the Hon'ble High Court of Delhi has sanctioned the Scheme of Amalgamation in respect of 8 transferors companies in which the assessee company is also a party as transferor com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 292V of the Act. 12. The Hon'ble High Court further 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. 13. The Co-ordinate Bench of the Tribunal in the case of M/s Images Credit and Portfolio [P] Ltd in ITA Nos. 5301 to 5306 and ITA No. 5418/DEL/2013 dated 19.12.2014 on identical set of facts has held as under: 6.2. 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferor company i.e. M/s Sainath Associates Pvt. Ltd. However, the Assessing Officer instead of issuing notice in the name of transferor company chose to complete the assessment in the name of the assessee by simply mentioning in the Cause Title of the assessment order the fact of amalgamation. Considering the totality of the above facts and respectfully following the decision of Hon ble Jurisdictional High Court in the case of M/s Spice Entertainment Ltd. we hold that the issue of notice under Section 153C in the name of M/s Image Credit and Portfolio Pvt .Ltd. on 10th September,2010 is void. Accordingly the same is quashed. Once the notice issued under Section 153C has been quashed the assessment completed in pursuance to such notice al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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