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TMI Blog2022 (3) TMI 1641X X X X Extracts X X X X X X X X Extracts X X X X ..... the action of AO in making assessment in the hands of non-existent company, which is without jurisdiction and bad in law. The ld.counsel drew our attention to the first issue raised vide ground Nos. 2 to 4 as under:- Issue 1: Assessment made in the hands of a non-existent company is without jurisdiction 2. The learned AO has failed to appreciate that NICE has already been dissolved without the process of winding up on account of its merger with L&T Infrastructure Development Projects Limited with effect from 1 April 2013 ('the effective date'). 3. The learned AO ought to have appreciated that the proceedings/orders against a non-existent person would be invalid. 4. The learned AO has hence erred in framing the assessment under section 143(3) of the Income-tax Act, 1961 ('the Act') on 22 March 2016 in the hands of NICE after the effective date and the order would not stand in the eyes of law. 3. The ld.counsel for the assessee first of all took us through the assessee's paper-book and stated that the assessee filed a letter dated 04.09.2014 before the AO i.e., the DCIT, Company Circle IV(4), Chennai informing the merger of Narmada Infrastructure Construction Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger of the Transferor Companies with L&T IDPL ('the Scheme'). We have attached the order of the Hon'ble HCs of Judicature at Madras and the Hon'ble HC of Judicature at Bombay as Annexure 1A and 1B respectively. 2. Our Prayer Upon the Scheme coming into effect, all proceedings (including tax proceedings) against NICE whether pending or arising after the effective date shall be continued/ enforced in the hands of L&T IDPL in same manner as it would have been continued/ enforced in the hands of NICE In view of the above, all proceedings pending before your goodself In connection with NICE (list provided as Annexure 2 for ready reference) shall be continued in the hands of L&T IDPL We request your goodself to issue relevant notices, intimations, orders etc relating to NICE to the following address: L&T Infrastructure Development Projects Limited PO Box No 979 Mount Poonamalle Road Manapakkam Chennai - 600 089 We request you to kindly take the above on record. We would be glad to provide any further information/ document that you may require in this regard. Yours faithfully, L&T Infrastructure Development Projects Limited Authorized Signatory Even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val contentions and gone through the facts and circumstances of the case. Admitted facts are that in this case, the assessee informed both the AO as well as the CIT(A) that erstwhile assessee Narmada Infrastructure Construction Enterprise Ltd., was merged with L&T Infrastructure Development Projects Limited w.e.f. 01.04.2013, vide letters along with order of Hon'ble Jurisdictional High Court i.e., Madras and Hon'ble Bombay High Court vide orders dated 28.03.2014 and 20.08.2014, sanctioning the scheme of merger of the transferor companies with L&T Infrastructure Development Projects Limited. It was claimed that pursuant to the scheme becoming effective Narmada Infrastructure Construction Enterprise Ltd., is disallowed without winding up and upon the scheme coming into effect, all proceedings (including tax proceedings) against the erstwhile company, whether pending or arising after the effective date shall be continued/enforced in the hands of present company i.e., L&T Infrastructure Development Projects Limited in the same manner as it would have been continued / enforced in the hands of erstwhile company Narmada Infrastructure Construction Enterprise Ltd. The assessment was comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings an assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 12. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act." Following the decision in Spice Entertainment, the Delhi High Court quashed assessment orders which were framed in the name of the amalgamating company in: (i) Dimension Apparels; (ii) Micron Steels; and (iii) Micra India. 26 The order of assessment in the case of the respondent for AY 2011-12 was set aside on the same ground. This resulted in a Special Leave Petition by the Principal Commissioner of Income Tax - 6 Delhi32. The Special Leave Petition was dismissed by a two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assesseed on the predecessor, cannot be recovered from him, the 99[Assessing] Officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor and the successor shall be entitled to recover from the predecessor any sum so paid. (4) Where any business or profession carried on by a Hindu undivided family is succeeded to, and simultaneously with the succession or after the succession there has been a partition of the joint family property between the members or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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