TMI Blog2022 (2) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 2284/CHNY/2016 - - - Dated:- 31-1-2022 - Mahavir Singh, Vice President And Manoj Kumar Aggarwal, Member (A) For the Appellant : S. Sridhar, Advocate For the Respondents : P. Sajit Kumar, JCIT ORDER Per Mahavir Singh, VP This appeal by the assessee is arising out of order of Commissioner of Income Tax (Appeals)-1, Coimbatore in Appeal No. 62/13-14, vide order dated 29.04.2016. The original assessment was framed by the ACIT, Company Circle 1(2), Coimbatore for the assessment year 2006-07, the relevant assessment year, vide order dated 30.12.2008 u/s. 143(3) of the Income Tax Act, 1961 (hereinafter the 'Act'). Subsequently, the matter was set aside by the ITAT and the DCIT, Company Circle 1(2) passed order u/s. 143(3) r.w.s. 254 of the Act vide order dated 11.03.2013 i.e., the effect to the order of the Tribunal. 2. At the outset, the ld. counsel for the assessee first of all explained the brief history of the case. The ld. counsel Shri S. Sridhar explained that the assessee filed its return of income for the relevant assessment year 2006-07 on 11.11.2006 and the same was processed u/s. 143(1) of the Act on 02.08.2007. Subsequently, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Income Tax Appellate Tribunal and the Tribunal in the Cross Objection No. 101/Mds/2009 arising out of ITA No. 885/Mds/2009, vide order dated 30.08.2011 held that cross objection of the assessee is premature and allowed liberty to the assessee to raise this issue whenever occasion arises. The Tribunal dismissed this ground as premature by observing in Para 4 as under:- 4. The cross objection by the assessee would become premature in view of the fact that we have set aside the finding of the ld. CIT(A) and that of Assessing Officer, but the assessee is at liberty to raise this issue whenever occasion arises. Accordingly, we keep open the issues raised in the cross objection but dismiss the same as premature. The assessee carried this matter before Hon'ble Madras High Court and this case was numbered as Tax Case Appeal No. 592 of 2011. The ld. counsel for the assessee stated that the assessee has taken up the issue before the Hon'ble Madras High Court on the following substantial question of law:- 1. Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal is right in holding that the issue relating to the validity of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. is invalid in the eyes of law since Meridian Industries Ltd. was not in existence when the assessment proceedings were initiated and complete and the fact of amalgamation was also brought to the notice of the Assessing Officer even before the initiation of scrutiny assessment proceedings. 2. The Commissioner of Income Tax (Appeals) has erred in not considering the ground of invalidity of assessment raised by the appellant, as the Assessing Officer had assumed jurisdiction invalidly which is illegal and void-ab-initio. 5. The ld. counsel for the assessee subsequently referred to the letter dated 01.11.2006 and he read out the letter which is being reproduced as it is:- 5.1. The ld. counsel for the assessee further took us to the notings done by the AO on 02.11.2006 please update the case records IIT, pl. discuss for other formalities if any . The ld. counsel drew our attention that the AO has noted this fact before the completion of original assessment proceedings. The assessee before first appellate proceedings during original round of litigation also raised this ground and the fact was brought to the notice of CIT(A) that the assessee company had merged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said order of assessment to be a legal and valid order and not vitiated by the technical defect pointed out which is curable by the provisions of section 292B. The appellant's plea is, therefore, rejected. 5.2. The ld. counsel for the assessee stated that the CIT(A) simply ignored the jurisdictional issue by covering the same under the guise of provisions of section 292B of the Act. The Tribunal has not adjudicated the issue. According to him, the Tribunal has simply set aside the matter to the AO and kept the issue open as raised in the cross objection before it. Even in the second round, despite the fact that the CIT(A) noting the ground in its order at page 2, has not adjudicated the issue. He stated that all proceedings emanated from the original assessment order i.e., assessment order dated 30.12.2008 u/s. 143(3) of the Act is the base order which was passed on non-existent company, the subsequent proceedings all will not survive in view of the decision of Hon'ble Supreme Court in the case of PCIT vs. Maruti Suzuki Ltd., 416 ITR 613. The ld. counsel for the assessee took us through the case law, para 31 of the assessee's paper-book page 13 and read out releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order, giving effect to the order of the ITAT and that of the CIT(A) only name of amalgamated company is given, then it cannot be called a jurisdictional error. When a specific query was put to ld. Senior DR, whether the judgment of Hon'ble Supreme Court in the case of M/s. Maruti Suzuki Ltd., supra, applies to this case, he answered negative but could not elaborate any reason. 7. We have heard rival contentions and gone through facts and circumstances of the case. We have noted all the facts and which are admitted. There is no dispute on the above facts. When a query was put to ld. counsel, Shri Sridhar fairly agreed that the CIT(A) has not adjudicated this issue on jurisdiction specifically raised before him. He conceded that matter can be referred back to the file of the CIT(A) to adjudicate this issue. He argued that first CIT(A) will adjudicate this jurisdictional issue and then he will decide merits also afresh. The ld. Senior DR has not seriously conceded the above averments of the ld. counsel. In view of the decision of CIT(A) that the issue of assessment on non-existent company is not adjudicated and has confession given by both the sides, we are setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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