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TMI Blog2014 (5) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings have been initiated and were continuing has to be seen - only two documents which required to be looked into were the scheme of amalgamation and the order passed in pursuance thereof by the Court. If that was the admitted factual position and based on which the legal issue was raised, then, the tribunal was obliged to answer the legal question - Its omission to answer is vitiated in law - The tribunal is a last fact finding Court and equally if it could have been approached by the Assessee Court on law and fact, then, in the given circumstances, the tribunal should have answered this issue and its failure to do so can safely be termed as not performing its duty in law - The direction to remit and to remand it to the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings in relation to imposition of penalty. They are null and void abinitio. The argument is the proceedings were commenced or continued against a nonexisting company. 4] Mr. Dastur, learned senior counsel appearing in support of this appeal submits that the tribunal having noted this legal argument and finding that it goes to the root of the case urged in not answering it. It was a pure legal issue inasmuch as there was nothing beyond the scheme of amalgamation under Section 391 to 394 of Companies Act, 1956, which received sanction of this Court and by virtue of the order of this Court the consequences followed. If these two documents were the only documents based on which the legal issue was raised then, the tribunal was obliged to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the order on the rectification of mistake application made on 28th September, 2011. Upon perusal of the entire material, we are of the opinion that the appeal raises the following substantial questions of law:- (i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in setting aside the appeal to the file of the Assessing Officer to decide the matter afresh? (ii) Whether on the facts and in the circumstances of the case and in law, the Assessing Officer can sit in judgment over his own order and decide whether or not the order passed by him is a nullity or whether it is necessary that an appellate authority should take such a decision? (iii) Whether the Tribunal ought to have clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO shall after giving reasonable opportunity to the assessee to present their case and decide the issue in accordance with law. Having so observed, the tribunal should have answered the legal issue itself. The tribunal was not prevented in any manner and in law from considering a purely legal issue for the first time, moreso, if this legal issue goes to the root of the matter. The issue was an impact and legal effect of a order of amalgamation and winding up of the Assessee thereto on the penalty proceedings have been initiated and were continuing. If they were initiated prior to the order of the winding up passed or the scheme of amalgamation being sanctioned, then, whether the subsequent act of a order sanctioning the scheme would p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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