2021 (10) TMI 68 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - notice to company as no longer in existence and was dissolved by the orders of the Registrar of the Companies - whether curable defect u/s 292B? - HELD THAT - Assessee under the provisions of Section 560 of the Act had made an application on 09.07.2016 before the Registrar of Companies for getting its name struck off from the Register of Companies and its dissolution. The intimation of the receipt of application was issued in the Gazette for publication and its copy was also sent to the Chief Commissioner of Income-tax. Thereafter on 19.01.2017, the name of the assessee was struck from the register of Companies and it was dissolved from that date and the intimation about the same was also given to the Income Tax Officer. Despite the aforesaid, notice u/s 148 of the Act for the reassessment proceedings was issued by the AO on 29.03.2018 when the company was no longer in existence and was dissolved by the orders of the Registrar of the Companies. Thus on the date of issuance of notice u/s 148 of the Act, assessee was no longer in existence. As in the case of Spice Infotainment Ltd. 2011 (8) TMI 544 - DELHI HIGH COURT has held that the assessment in the name of company which has been amalgamated with another company and stood dissolved to be null and void and the assessment framed in the name of a non-existent company to be a jurisdictional defect which could not be cured under Section 292B of the Act. - Decided in favour of assessee.

Issues:
1. Validity of assessment under section 147/144 of the Act.
2. Legality of initiation of proceedings under section 147 of the Act.
3. Compliance with statutory provisions under section 250(6) of the Act.
4. Sustainment of addition under section 68 of the Act.
5. Fair opportunity of being heard to the assessee.
6. Validity of notice issued under section 148 of the Act on a dissolved entity.

Analysis:

1. The appeal challenged the assessment under sections 147/144 of the Act, disputing the income amount of ?33,27,228. The CIT(A) dismissed the appeal, prompting the assessee to appeal further. The grounds raised included errors in law and facts regarding the assessment amount.

2. The initiation of proceedings under section 147 was questioned for lacking statutory preconditions and proper application of mind. The CIT(A) was accused of passing the order disregarding statutory provisions and principles of natural justice, leading to an ex parte dismissal of the appeal.

3. The CIT(A) was criticized for not passing a speaking order as required under section 250(6) of the Act. Allegations were made regarding the dismissal of detailed written submissions without consideration, violating principles of natural justice.

4. The addition under section 68 of the Act, amounting to ?33,27,228, was contested as factually incorrect and based on conjectures and suspicion. The CIT(A) was accused of not considering the written submissions explaining the income source, leading to an erroneous decision.

5. The fairness of the assessment process was questioned, alleging that the addition was sustained without providing a fair and proper opportunity for the assessee to be heard, violating principles of natural justice.

6. An additional ground challenged the validity of the notice issued under section 148 of the Act on a dissolved entity. The assessee argued that the company was dissolved before the notice was issued, rendering the assessment void ab initio. The AR presented evidence supporting the dissolution of the company and contended that the assessment on a non-existent entity was a jurisdictional defect.

The Tribunal admitted the additional ground and ruled in favor of the assessee, quashing the assessment due to the invalidity of the notice issued on a dissolved entity. Since the assessment was annulled, other grounds on merit were not addressed, resulting in the appeal being allowed.

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