TaxTMI 
TaxTMI 
2018 (12) TMI 598
X X X X Extracts X X X X
X X X X Extracts X X X X
....- out of legal & professional charges on the ground that the appellant company has not been able to justify the same. 2. That on the facts and in the circumstances of the case, the learned CIT(Appeals) has erred in not allowing deduction of Rs. 1,61,419/- in respect of depreciation claimed as per income-tax rules and deduction u/s 35D allowable to the appellant company. 3. That any relief due to the company in consequence of the foregoing grounds and any other relief, to which it is entitled under the law, may be directed to be granted to it. 4. That the above grounds of appeal are without prejudice to one another. 5. The appellant craves leave to add to, or vary, any of the grounds of appeal if it becomes necessary to do so in the interest of justice." 3. The grounds of appeal raised by the Revenue in ITA No. 6182/ Del/2016 are reproduced as under: 1. "That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 16,14,675/-, on account of expenditure made by the assessee company w.r.t. payment to auditors, sitting fees, security of the premises and travelling expenses incurred by the Directors of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration Ltd. vs. CIT (1998) 229 ITR 383 (SC). 7. The Ld. DR on the other hand objected admission of the additional ground stating that this ground was not raised in first appellate proceeding before the Ld. CIT(A) and, therefore, the assessee may not be allowed to raise any ground which has not been adjudicated by the first appellate authority. 8. We have heard the submission of the parties on the issue of admissibility of the additional ground. We find that the issue as to whether an assessment can be made on non-existent entity, is only of the legal nature, it can be raised it any stage of the appellate proceedings unless investigation of fresh facts is required as held by the Hon'ble Supreme Court in the case of National Thermal Power Corporation Limited (supra). In view of above decision & facts of the case we admit the additional ground and the parties were directed to argue the said additional ground. 9. The Ld. Counsel of the assessee submitted that assessment in the case has been made on M/s Dalmia Cement Ventures Limited i.e the assessee on 13/02/2015 and on said date the company already stood amalgamated with M/s Dalmia Cement (Bharat) Ltd. The Ld. Counsel submitted tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the name of M/s Dalmia Cement (Bharat) Ltd. Aggrieved with the order of the Ld. CIT(A), both the assessee and the Revenue are in appeal before the Tribunal. Before the Tribunal, the assessee has raised the issue for the first time that the assessee company got merged with M/s Dalmia Cement (Bharat) Limited vide order dated 13/11/2013 of the Hon'ble High Court of Madras and ,therefore, on the date of passing of the assessment order, the company was not in existence and, therefore, the order passed by the Assessing Officer is void ab initio. The assessee has claimed that the Assessing Officer was informed on 22/09/2014 about the merger of the assessee company with M/s Dalmia Cement (Bharat) Limited and despite that the Assessing Officer has made assessment on nonexistent entity. 14. The issue before us is whether assessment can be made on a non-existent entity. In the case of Spice Infotainment Limited (supra) , Hon'ble Supreme Court observed that assessment framed in the name of a non-existent entity, is not a procedural irregularity. The relevant observation of the Hon'ble High Court are reproduced as under: "12. Once it is found that assessment is framed in the name of non-e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Skylight Hospitality LLP (supra), the issue involved was of issue of notice under section 148 of the Act in the name of the erstwhile entity and the Hon'ble Delhi High Court has held that same was a procedural irregularity or defect which could be cured under section 292B of the Act. The Hon'ble High Court noted the decision in the case of Spice Infotainment Limited (supra) and held that in said case assessment was made on a non-existent entity, which being a jurisdictional error, the assessment was void ab initio. 18. In our opinion, there is no contradiction in the two judgements and judgement in the case of Spice Infotainment Ltd (supra) is a valid decision despite subsequent decision in the case of Skylight Hospitality LLP (supra) as an illegality of framing assessment on nonexistent entity cannot be cured u/s 292B of the Act. 19. However, in the instant case, the Ld. Counsel has produced before us letter dated 22/09/2014 addressed to the Assessing Officer informing the merger of the assessee with M/s Dalmia Cement (Bharat) Ltd. On perusal of the said letter, we find that though the letter is having stamp of the office of the Assessing Officer, but it is not bearing in the ....