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2020 (1) TMI 1029 - ITAT AHMEDABADRevision u/s 263 - notice upon a non-existent entity - Commissioner having jurisdiction over Gallops for taking any action u/s 263 - merger scheme conceived - HELD THAT:- Gallops has been filing its returns at Ahmedabad from the assessment year 2015-16 i.e. after merger of SAPL with Gallops. In our view, in the above situation, the ld.Commissioner ought to have remitted the record to the Commissioner having jurisdiction over Gallops for taking any action under section 263 of the Act, if any such ground is available. It is pertinent to observe that long back on 3.8.1977, Hon’ble jurisdictional High Court in the case of PV Doshi vs. CIT [1977 (8) TMI 29 - GUJARAT HIGH COURT] has observed that consent will not infuse jurisdiction in an authority. If an assessee gave consent for assumption of jurisdiction in the AO in passing an assessment order to Commissioner for exercising power under section 263 then also such jurisdiction will not be construed as valid jurisdiction. Jurisdiction deserves to be flowed from the Act in the authority, and not consent of the assessee. If we accept the contentions of the ld.CIT-DR, then it would suggest that notice would be given to “A” person by Commissioner under section 263, but ultimately on the basis of his order tax liability would fall upon “XYZ”. This is not permissible under the law nor has been contemplated in the section. Therefore, without going into other issues, we are of the view that notice under section 263 was issued upon a non-existent entity. It is not sustainable. Therefore, no proceeding could be assumed in legal sense and same is not sustainable. Consequently, order passed under section 263 of the income Tax Act against non-existent entity is treated as nullity and void ab inito. Hence, this order is quashed. - Decided in favour of assessee.
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