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2020 (1) TMI 1029 - AT - Income TaxRevision 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.
Issues Involved:
1. Validity of the order passed on a non-existent entity. 2. Legality of invoking Section 263 to revise the scrutiny assessment order. 3. Adequacy of inquiries and examination of facts by the Assessing Officer (AO). 4. Presumption of lack of independent inquiry by the AO. 5. Validity of notices issued to a non-existent entity. 6. Requirement for orders passed under Section 263 to favor the revenue. Detailed Analysis: 1. Validity of the Order Passed on a Non-Existent Entity: The Tribunal examined whether the proceedings under Section 263 could be justified against a company that ceased to exist due to amalgamation. The assessee argued that the order by the Commissioner was null and void ab initio because it was passed on a company that had merged and ceased to exist. The Tribunal referred to the Supreme Court judgment in Pr.CIT Vs. Maruti Suzuki India Ltd., which held that assessment orders passed on non-existent entities are void ab initio. The Tribunal concluded that since Snowhill Agencies Pvt. Ltd. (SAPL) had merged and ceased to exist, the proceedings under Section 263 were not sustainable. 2. Legality of Invoking Section 263 to Revise the Scrutiny Assessment Order: The Commissioner sought to revise the assessment order under Section 263, claiming the AO failed to conduct proper inquiries. The Tribunal noted that the Commissioner has the authority to revise any order if it is erroneous and prejudicial to the interests of the revenue. However, the Tribunal emphasized that such power must be exercised against a valid juridical person. Since SAPL had merged and ceased to exist, the Commissioner lacked the jurisdiction to initiate proceedings under Section 263 against it. 3. Adequacy of Inquiries and Examination of Facts by the AO: The assessee contended that the AO had conducted thorough scrutiny and proper inquiries before passing the assessment order. The Tribunal noted that the AO had issued notices and conducted inquiries during the assessment proceedings. The Tribunal highlighted that if the AO had examined the accounts, made inquiries, and applied his mind to the facts, the Commissioner could not substitute his judgment for that of the AO merely because he disagreed with the AO's conclusions. 4. Presumption of Lack of Independent Inquiry by the AO: The Commissioner argued that the AO's order suffered from a lack of independent and adequate inquiry. The Tribunal reiterated that if the AO had conducted inquiries and applied his mind, the Commissioner could not invoke Section 263 simply because he believed the inquiries were insufficient. The Tribunal emphasized that an order is not erroneous merely because the Commissioner disagrees with the AO's conclusions. 5. Validity of Notices Issued to a Non-Existent Entity: The Tribunal addressed the issue of notices being issued to a non-existent entity. The assessee argued that the notices were sent to an incorrect address with a wrong PAN, making it impossible to respond. The Tribunal noted that the Commissioner was aware of the merger and should have issued notices to the surviving entity, Gallops Motors Pvt. Ltd. The Tribunal concluded that the proceedings initiated against a non-existent entity were invalid and unsustainable. 6. Requirement for Orders Passed Under Section 263 to Favor the Revenue: The Commissioner held that any order passed subsequent to an order under Section 263 must favor the revenue. The Tribunal disagreed, stating that the Commissioner's power under Section 263 is to ensure that the AO's order is not erroneous and prejudicial to the revenue. However, this power must be exercised within the bounds of jurisdiction and against a valid juridical person. Since SAPL had ceased to exist, the Commissioner's order under Section 263 was void ab initio and could not be sustained. Conclusion: The Tribunal quashed the order passed under Section 263, declaring it null and void ab initio due to the lack of jurisdiction over a non-existent entity. The appeal of the assessee was allowed, and the proceedings under Section 263 were deemed unsustainable.
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