2016 (9) TMI 60 - HC - Income Tax

Reopening notice against non existent entity - Held that - Reopening notice to a nonexisting company and framing an assessment consequent thereto is a issue which goes to the root of the jurisdiction of the Assessing Officer to assess the nonexisting company. Thus, prima facie, both the impugned notice dated March 24, 2015 and the assessment order dated March 28, 2016, are without jurisdiction.

Summary

Issues:
Challenging notice seeking to reopen assessment for the assessment year 2008-09 and assessment order passed under section 143(3) read with section 147 of the Income-tax Act, 1961.

Analysis:

1. The petition was filed by the directors of a dissolved company challenging a notice seeking to reopen assessment and the subsequent assessment order. The company had been dissolved, and the chartered accountant initially accepted the notice but later clarified the company's dissolution. The Assessing Officer still proceeded with the assessment despite the company's non-existence.

2. The High Court noted that typically, a petition would not be entertained when an alternative appeal remedy is available. However, in this case, the impugned notice was issued to a non-existing entity and the assessment was framed for the dissolved company. This fundamental issue of jurisdiction over a non-existing entity raised serious concerns about the validity of the notice and assessment order.

3. The Court found that the defect in issuing a notice to a dissolved company and conducting an assessment in such a scenario questioned the Assessing Officer's jurisdiction. The Court held that both the notice and the assessment order were without jurisdiction due to the non-existence of the company at the time of the proceedings.

4. Consequently, the Court decided to entertain the petition and granted interim relief by staying the assessment order and restraining the Revenue from taking further actions based on the invalid assessment. The Court's decision was based on the lack of jurisdiction in assessing a dissolved company, highlighting the importance of legal procedures and jurisdictional boundaries in tax assessments.