TMI Blog2022 (8) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... as the reassessment proceedings were pending before him which were getting time barred on 31.12.2018. The restoration of name of the company will have a retrospective effect as if name of company was never struck off, however the stringent law of limitation under the Act would have debarred the Ld. AO from passing re-assessment order after 31.12.2018. Even if the petition u/s 252(1) r.w.s. 252(3) of the Companies Act was allowed and the name of company was restored, as if, it was never struck off, that would not have revived the limitation for re-assessment which had started to run and would have ended on 31.12.2018. Therefore, the impugned assessment order cannot be said to be void ab initio having been passed on a non-existing entity. Like protective assessments, the preemptive assessments made against companies whose name have been stuck off by Registrar of Companies, for the statutory defaults under the Companies Act, are valid and cannot be set aside on Jurisdictional defect. More so when revival application is sub judice. So there is no substance in the grounds raised. As the Ld. Counsel for assessee claims that the assessee has good case on merits but same require veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -, only Rs. 4480/- pertained to the AY 2011-12 which was added to the total income. Similarly, there being no explanation with respect to cash deposit of Rs. 500000/-, the AO made addition of the same as well. 3. The assessee has claimed notice U/S 148 was issued on 27-03-2018 to the appellant company which was received back unserved. The Ld. Assessing officer was very well aware that the appellant does not exists because the name of the company was struck off from register of the company by ROC on 7/06/2017. That according to the Assessment order Para 3, further notice dated 21-08-2018 was received back with postal remarks No such Firm . That the Ld. AO was only trying to do paper work, even though he was knowing well that the appellant company was not in existence. Because the appellant company is not in existence, therefore, no notice can be served on the non existence company. 4. The Ld. CIT(A) observed that the gist of the submission of the appellant is that the impugned assessment order is beyond the jurisdiction of the AO in as much as notice u/s 148 was issued in the name of an entity which was struck off from register of companies w.e.f 07.06.2017 and that notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch left no other option but to proceed with the assessment. 6. The Assessee is in appeal raising following grounds :- A. Because, on the facts and in the circumstances of the case and in law, the Ld. CIT (Appeals) has grossly erred in upholding the approval of issue of notice u/s 148 of Act on 27-03-2018 , which was beyond jurisdiction, being without any valid 'reason to believe' and/or satisfaction of Ld. AO or of superior authority, to conduct roving enquiries against the appellant [Name of the appellant was struck off by the MCA on 07-06-2017] merely on the basis of a deposit of cash of Rs. 5,00,000/- [ which was share money and secured loan of newly formed company] in the bank account and earning of bank interest of Rs. 4458/-] as per Act min. 1,00,000/- was the limit] after 5 years of assessment year. B. Because, on the facts and in the circumstances of the case and in law, the Ld. CIT (Appeals) has grossly erred in upholding the validity of mandatory notice u/s 148 [As per assessment order it was dated 27.03.18 and was dispatched on 29- 03-2018] which was not admittedly served being the entity was not in existence [Name of the appellant was struck off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that it was pleaded before Hon ble NCLT that the restoration is being sought as the assessment was getting time barred on 31.12.2018. It was submitted that this itself shows the ld. AO was also of view and aware that proceedings are being carried against the non-existing entity and no assessment can be framed. It was submitted that in spite of the pendency of petition before Hon ble NCLT, the Ld. AO passed an order of assessment against the assessee company which was not in existence. It was submitted that Ld. CIT(A) relied judgment dated 12.03.2019 of Hon ble Supreme Court of India in CIT vs. Gopal Shree Scrips Pvt. Ltd. Civil Appeal no. 2922 of 2019 decided on 12.03.2019 however, the facts in that case were distinguishable as in that case the assessment order was framed before year 1999 and the name of company was struck off by Registrar of companies vide order dated 07.04.2011. It was submitted that in that case when the assessment was framed the said company was in existence while in present case there was no legal entity in existence. It was submitted that by judgment dated 25.07.2019 in the matter of PCIT vs. Maruti Suzuki India Ltd 107 Taxmann.com 375, Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come non-existing entity, due to amalgamation of the company. However, here is the case where admittedly the name of directors of the assessee company were disqualified by ROC u/s 164(2) of the Companies Act with effect from 01.11.2016 till 31.10.2021 leading to struck off of the name of company from Register of Companies and consequential dissolution with effect from 07.06.2017 vide order dated 30.06.2017. The same was in pursuant of powers under sub section 5 of section 248 of the Companies Act r.w.r. 3 and 9 of the Companies (removal of names of companies from Register of Companies) Rules, 2016. This dissolution after struck off the name of company by Register of Companies has to be distinguished with dissolution pursuant to orders of Hon ble High Court or amalgamation of the Companies. 9. The ld. AO had approached the NCLT for restoration of the name of company as the reassessment proceedings were pending before him which were getting time barred on 31.12.2018. The restoration of name of the company will have a retrospective effect as if name of company was never struck off, however the stringent law of limitation under the Act would have debarred the Ld. AO from passing re- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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