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TMI Blog2013 (12) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... were seized. On the basis of the documents so found, proceedings were initiated in the case of the assessee company under Section 153C for all the six assessment years under consideration. The Assessing Officer completed the assessment in the hands of the assessee i.e. M/s SPN Milk Product Industries Pvt. Ltd. on 31st December, 2010. The assessee company M/s SPN Milk Product Industries Pvt. Ltd. stood amalgamated with M/s Sanskar Projects & Housing Limited vide order of Hon'ble Delhi High Court dated 28th May, 2010 passed under Sections 391 & 394 of the Companies Act, 1956. In view of the above, it was claimed by the assessee before the learned CIT(A) that the assessment in the hands of a company, which is already amalgamated and therefore does not survive, is illegal and nullity. The learned CIT(A) accepted the assessee's contention and declared the assessment order passed on the appellant company as nullity. The relevant finding of the learned CIT(A) reads as under:- "14. I have considered the assessment order, written submissions, remand report and rejoinder to the remand report filed by the AR as well as the facts of the case and the position of law. I have gone through the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kurban Hussain Ibrahimji Mithiborwala, 1973 CTR (SC) 454; (1971) 82 ITR 821 (SC); (j) Spice Entertainment Limited Vs. CIT ITA 475 & 476 of 2011. The gist of the judgment of the Jurisdictiuonal High Courts order in the case of I.T.A. No.273/2009 Commissioner of Income Tax vs. Vived Marketing Servicing Pvt.Ltd. is reproduced hereunder:- "When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies under Section 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. Vs. ITO 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arises." The gist of the jurisdictional Delhi Tribunal's order in the case of Impsat (P) Ltd. vs. Income Tax Officer ITAT, Delhi 'A' Bench (2005) 92 TTJ (Del) 552 is reproduced hereunder: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab initio. He, therefore, submitted that the order of learned CIT(A) on this point should be reversed and the assessment order should be upheld. 6. In the alternative, the learned CIT-DR stated that Hon'ble Jurisdictional High Court in the case of Spice Entertainment Ltd. Vs. CIT vide ITA 476 of 2011 has made certain observation in paragraph 18 of the order. Similar observation/direction should be given by the ITAT. 7. The learned counsel for the assessee, on the other hand, relied upon the order of the learned CIT(A) and stated that this issue is covered in favour of the assessee by several decisions many of which have already been referred by the learned CIT(A) in his order. There is no contrary decision. He also referred to the decision of ITAT Delhi Bench in the case of Micra India Pvt.Ltd. vide ITA Nos.1060 to 1065/Del/2012 in which both the Members of this Bench were party. He also referred the following decisions of Hon'ble Jurisdictional High Court:- (i) Spice Entertainment Ltd. Vs. CIT - ITA No.475 of 2011. (ii) Birla Spinning and Weaving Mills Ltd. Vs. CIT - (1980) 4 Taxman 225 (Delhi). (iii) CIT Vs. Vivid Marketing Servicing Pvt.Ltd. - ITA No.273 of 2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law." 11. The facts in the case of the assessee are identical and, therefore, the ratio of the above decision of Hon'ble Jurisdictional High Court would be squarely applicable. In this case also, when the assessment was made, the assessee was a non-existing entity. Therefore, the assessment order passed in the name of the assessee i.e. M/s SPN Milk Product Industries Pvt. Ltd. is clearly void. We, however, find that Hon'ble Jurisdictional High Court in the concluding paragraph of its judgment in the case of Spice Entertainment Ltd. (supra) has observed as under:- "18. We may, however, point out that the returns were filed by M/s Spice on the day when it was in existence it would be permissible to carry out the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice under Section 143(2) of the Act. In these circumstances, it would be incumbent u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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