TMI Blog2019 (7) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has taken various grounds of appeal which includes grounds on legal issues as well as grounds on merits. Ground Nos. 1 to 4 are on legal issue whereas ground nos. 5 to 9 are on the merits of the case. 3. At the outset, the ld. Authorized Representative submitted that he will not be pressing ground no. 1 which is on non-service of notices u/s 143(2) of the Act which may be dismissed as not pressed. 4. As regards, the legal issues taken by assessee vide ground nos. 2 to 4, the ld. AR submitted that Assessing Officer has initiated the reassessment proceedings without application of mind on the material provided by the investigation wing of the department. In this respect, the ld. AR took us to paper book page 31 where from for recording reasons for initiating proceedings u/s 148 of the Act was placed and our specific attention was invited to column 8 where the Assessing Officer has written no against the question as to whether assessee had filed return of income. It was submitted that Assessing Officer had wrongly noted this observation as the assessee had duly filed its return of income and which the Assessing Officer vide note 1 at the same pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 01.04.1989 by virtue of substitution of Section 147 of the Act by Direct Tax law Amendment Act 1989. It was submitted that citing of a Section which has ceased to exist more than 26 years ago shows non-application of mind by Assessing Officer as well as by the approving authorities u/s 151 of the Act. Further arguing, the ld. AR submitted that reasons recorded by the Assessing Officer are void ab initio as the reasons have been recorded in the case of a assessee which did not exist at the time of recording reasons and in this respect our attention was invited to a copy of amalgamation order of Hon ble High Court dated 20.12.2011 placed at paper book 35 to 42. It was submitted that the company had amalgamated with another company w.e.f. 01.04.2010. The ld. AR invited our attention to paper book page 29 where the letter by the Assessing Officer intimating to the assessee regarding reopening was placed and then the ld. AR further took us to paper book page 30 where the copy of letter written by assessee intimating to the Assessing Officer regarding amalgamation of the assessee company was placed. The ld. AR further submitted that at the time of recording reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder where the order has been passed by mentioning the name of assessee and by noting down that now it had merged with M/s Radhu Developers Pvt. Ltd. The ld. DR submitted that the Hon ble Supreme Court in the case of M/s Skylight Hospitality LLP Vs ACIT has held such mistake is a clerical mistake and has held that Section 292B of the Act can be applied to rectify such cases. 7. The ld. Authorized Representative in his rejoinder reiterated his submissions on the issue of notice on a non-existent assessee. The ld. AR stated that in the case law of Hon ble Supreme Court relied by ld. DR there was sufficient material before the Assessing Officer while recording the reasons regarding the fact of having it been amalgamated with another company and that is why the Hon ble Supreme Court has held that it was a case only of a clerical mistake whereas in the case under consideration, no such material was there in the reasons recorded and Assessing Officer recorded reasons only in the case of assessee which was not inexistence at that point of time. It was further submitted that Assessing Officer mentioned the fact of having assessee merged with another company only on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted above. The AO s view that M/s Radhu Securities (P) Ltd. was very much inexistence in the F. Y. 2005-06 and income earned during that year is to be assessed in the hands of M/s Radhu Securities (P) Ltd. does not survive as framing of assessment against the non-existent entity/person is a jurisdictional defect and cannot be sustained, in / view of the judicial pronouncements of the jurisdictional High Court referred in paras 2.4 2.5 above. Respectfully, following the ratio therein, the impugned assessment is annulled. / This ground of appeal is ruled in favour of the appellant. 10. The ld. CIT(A) has passed this order on 11.12.2015 i.e. much before the recording of reasons by Assessing Officer. At the time of recording reasons for the year under consideration on 29.03.2017 the order of ld. CIT(A) dated 11.12.2015 can safely be expected to be in the knowledge of Assessing Officer. Since, the Assessing Officer has recorded the reasons in the name of assessee which was not inexistence and the fact of not being inexistence was in the knowledge of department, the notice issued and reasons recorded are void ab initio and therefore, any assessment order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal. The Judgment of the Hon ble Delhi High Court in the case of M/s. Skyline Hospitality LLP (supra) is distinguishable on facts. Moreover, it is well settled law that if two views are possible, then the view in favour of the assessee may be adopted. We, therefore, did not find any infirmity in the order of the Ld. CIT(A) in annulling the re-assessment proceedings. Ground No.1 of Departmental Appeal stands dismissed. The Ld. CIT(A) did not decide the appeal on merits because reassessment proceedings have been annulled. We also do not propose to decide the same issue on merit because it is left with academic discussion only. In view of the above discussion, we do not find any merit in the appeal of the Revenue and the same is accordingly dismissed. 11. In view of these facts and circumstances, I hold that assessment order passed by Assessing Officer is null and void as the reasons has been recorded on a non-existent assessee and that too when the fact of amalgamation was in the knowledge of department. Since, I have decided the jurisdictional issue in favour of the assessee, nothing survives for adjudication and therefore this legal issue is deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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