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2019 (9) TMI 1285 - AT - Income TaxAssessment in the name of non-existent entity - scheme of amalgamation approved - notice issued u/s 153A - Whether procedural defect curable under section 292B? - HELD THAT - As decided in MICRA INDIA PVT LTD 2015 (5) TMI 613 - DELHI HIGH COURT , VIVED MARKETING SERVICES PVT. LTD. 2009 (9) TMI 917 - DELHI HIGH COURT and DIMENSION APPARELS PVT. LTD. 2014 (11) TMI 181 - DELHI HIGH COURT framing order in the name of non-existent entity is not a procedural defect curable under section 292B of the Act or under any other provision of the Act but it is a jurisdictional defect and hence any order passed in the name of non-existing person is void ab initio. Hon ble Supreme Court in the case of Maruti Suzuki India Ltd. 2019 (7) TMI 1449 - SUPREME COURT held that where despite the fact that the AO was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice issued in the earlier name in the consequent assessment conducted cannot be held to be valid. - Decided in favour of assessee.
Issues:
- Quashing of the order of the Assessing Officer due to a change of company name - Deletion of addition of bogus share capital and unaccounted commission - Validity of assessment in the name of a non-existent entity post-amalgamation Analysis: 1. The appeals were filed by the Revenue against the orders of the ld. CIT(A)-28, New Delhi, challenging the quashing of the Assessing Officer's order and deletion of additions made on account of bogus share capital and unaccounted commission. The issues were heard together due to their commonality. 2. The grounds raised in ITA No. 2666/Del/2017 included errors by the CIT(A) in quashing the AO's order, ignoring communication regarding amalgamation, and deleting additions without proper appreciation of facts. The CIT(A) was criticized for not considering the circumstances of the case adequately. 3. The brief facts of the case included the date of search & seizure operation, issue of notice, filing of return, the High Court order on amalgamation, intimation to AO, and completion of assessment. The amalgamation of two companies was a crucial aspect of the case. 4. The key argument revolved around the company's amalgamation and its impact on assessment proceedings. The appellant contended that the company ceased to exist post-amalgamation, necessitating assessment in the name of the successor company. Legal precedents, including judgments in similar cases, were cited to support this argument. 5. The CIT(A) based the decision on the exposition by the jurisdictional High Court in Spice Infotainment Ltd and other relevant cases. It was emphasized that framing an order in the name of a non-existent entity is a jurisdictional defect, not a procedural one, rendering any such order void ab initio. 6. Referring to the Supreme Court's decision in Maruti Suzuki India Ltd., the Tribunal concluded that assessment notices issued in the name of non-existing entities post-amalgamation are not valid. Therefore, the Tribunal declined to interfere with the CIT(A)'s order based on the Apex Court's ruling. 7. Ultimately, the appeals of the Revenue were dismissed, upholding the decision of the CIT(A) in favor of the assessee. The judgment was pronounced in the open court on 04/09/2019, providing a final resolution to the legal dispute.
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