TMI Blog2018 (12) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter has not been filed before the Assessing Officer during the assessment proceeding, in those circumstances the Assessing Officer cannot be faulted for passing assessment order on M/s Dalmia Cement Venture Limited. In such circumstances, the assessment need to be restored to the file of the Assessing Officer for passing a fresh assessment order. - ITA No.4954/Del/2016, ITA No. 6182/Del/2016 - - - Dated:- 16-11-2018 - Shri S.K. Yadav, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri R.M. Mehta, FCA For the Department : Ms. Ashima Neb, Sr. DR ORDER PER O.P. KANT, A.M. These cross appeals by the assessee and the Revenue are directed against order dated 10/06/2016 passed by the Ld. Commissioner of Income-tax (Appeals)-3, Delhi [ in short the Ld. CIT(A)] for assessment year 2012-13. Both the appeals being arose from the same impugned order, were heard together and disposed off by this consolidated order for convenience. 2. The grounds of appeal raised by the assessee in ITA No. 4954/Del/2016 are reproduced as under: 1. That on the facts and in the circumstances of the case, the learned CIT(Appeals) has erred in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, erroneous and is not tenable on facts and in law. 6. That the grounds of appeal are without prejudice to each other 7. That the appellant craves leave to add, amend, alter or forgo any ground(s) of appeal either before or at the time of hearing of the appeal. 4. At the outset, the Ld. Counsel drawn attention of the bench to the additional ground filed by the assessee on 01/05/2018, which reads as under: That the AO erred in law in framing an assessment on a non-existent company, i.e. the original assessee amalgamating company which is liable to be declared a nullity and hence quashed. 5. The assessee also filed a copy of letter dated 22/09/2014 addressed to the Assessing Officer informing that the Dalmia Cement Ventures Limited merged with the Dalmia Cement (Bharat) Limited by the order dated 13/11/2013 of Hon ble High Court of the Madras w.e.f. 01/04/2012 . 6. The Ld. Counsel submitted that the additional ground raised by the assessee goes to the root of the matter and does not entail any verification of the facts or bringing on record any fresh material or additional evidence and thus, the ground might be admitted for adjudication. In support the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as it had been converted to into LLP, would not invalidate reassessment proceeding is same was not a jurisdictional error, but a irregularity and procedural/technical lapse which could be cured u/s 292B of the Act and the SLP filed against the same has been dismissed by the Hon ble Supreme Court . 12. The Ld. Counsel also submitted that the decision of the Spice Infotainment Ltd. (supra) was also duly discussed by the Hon ble Delhi High Court in the case of Skylight Hospitality LLP (supra) and was distinguished. 13. We have heard the rival submission and perused the relevant material on record. We find that in the instant case the assessee filed return of income on 28/09/2012 and subsequently the case was selected for scrutiny and notice u/s 143(2) of the Act was issued and served upon the assessee. The authorised representative of the assessee attended and complied the assessment proceeding. The assessment u/s 143(3) of that was completed on 13/02/2015 in the name of Dalmia Cement Ventures Limited i.e. the assessee. Aggrieved with the assessment order, the assessee filed appeal before the Ld. CIT(A) in the name of M/s Dalmia Cement (Bharat) Limited and it was claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 15. The Hon ble High Court in para 16 of the order concluded that the framing of the assessment on a non-existent entity goes to the root of the matter and which is not a procedural irregularity but a jurisdictional defect, as there cannot be any assessment against dead person. 16. The Hon ble Supreme Court in civil appeal No. 285 of 2014 alongwith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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