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TMI Blog2010 (7) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act, 1961 by the Assessing Officer in the hands of Spice Corp Ltd., a non-entity, which company stood dissolved consequent upon its amalgamation with Mcorp Global P. Ltd. w.e.f. 1.7.2003. 3. Since the issue raised in the Cross Objection goes to the very validity of assessment order, we shall first take the Cross Objection filed by the assessee for our adjudication. 4. In this case, the assessee, namely, M/s Spice Corporation Ltd., filed the returns of income on following dates, showing the total income as under: Assessment Year Date of filing of the Return Income returned 2002-03 30.10.02 Nil 2003-04 31.10.03 Nil 5. However, the assessee determined its tax liability u/s 115 JB by computing the book profit u/s 115JB of the Act. 6. The return for the Asstt. Year 2002-03 was processed u/s 143(1) on 26.2.2003 and that of the Asstt. Year 2003-04 on 20.11.03. Thereafter, these two assessment years were selected for scrutiny and notices u/s 143(2) were issued to the assessee. Notice u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel for the assessee, Shri Rupesh Jain, has submitted that the assessment order made by the AO in the name of Spice Corporation Ltd. as against the name of M/s Mcorp Global P. Ltd. is not in accordance with the provisions of law, and hence, it is invalid and bad in law as M/s Spice corporation Ltd. has already been amalgamated with Mcorp Global P. Ltd. w.e.f. 1st July, 2003, and, therefore, the assessment order made on 28.3.2005 for the Asstt. Year 2002-03 and on 30.1.2006 for the Asstt. Year 2003-04 should have been made in the name of M/s M Corp Global P. Ltd. In this connection, he submitted that the assessee has already intimated the AO vide letter dated 2nd April, 2004 that M/s Spice Corporation P. Ltd. was amalgamated with M Corp P. Ltd. pursuant to the order of the Hon ble Delhi high Court dated 11th February, 2004, and, further, M Corp P. Ltd. has changed its name to M Corp Global P. Ltd. w.e.f. 23rd February, 2004. He, therefore, contended that the assessment order being made on non-existence entity is invalid and void ab initio, liable to be quashed. In support of the contention, the learned counsel for the assessee has relied upon various decisions. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee are distinguishable on facts, and do not applicable to the facts of the present case. 11. Rival contentions of both the parties have been considered and orders of the authorities below have been carefully perused. Various decisions cited at the Bar have been deliberated upon. 12. After considering the facts and circumstances of the case, we are of the considered view that the assessment made by the AO has, in substance and effect, been made against the amalgamated company i.e. Mcorp Global P. Ltd., and, therefore, the assessment made by the AO cannot be said to have been made against the non existent entity. It is not in dispute that M/s Spice Corporation Ltd. was an income-tax assessee in the status of a company incorporated under the provisions of Companies Act, 1956. It is also not in dispute that the aforesaid company, namely, Spice Corporation Ltd. was in existence during the period relevant to Asstt. Years 2002-03 and 2003-04. The return of income for the Asstt. Years 2002-03 and 2003-04 were filed on 30.11.2002 and 30.10.2003 respectively by M/s Spice Corporation ltd. prior to the order of the Hon ble High Court of Delhi dated 11th February, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period prior to its amalgamation though the AO had allowed the representative of the amalgamated company to participate in the assessment proceedings, and has also served the copy of assessment order along with demand notice upon the amalgamated company. It, therefore, makes it clear that the assessment order was meant to be made, in substance and effect, against the amalgamated company in respect of the income of amalgamating company M/s Spice Corporation ltd. for the period prior to amalgamation. The mere omission on the part of the AO to mention the name of the amalgamated company in the body of assessment is a mere procedural defect covered by Section 292 B of the Act. Section 292B provides that no return of income, assessment, notice, summons or other proceedings, furnished or made or issued or taken or purported to have been furnished or made or taken in pursuance to any of the provisions of the Act, shall be invalid or shall be deemed to be invalid merely by raising of any mistake, defect, or omission of such return of income, assessment, notice, summons or other proceedings, if such return of income, assessment, notice, omission or other proceedings is in substance and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spice Corporation ltd., which stands amalgamated with the appellant company). It is also pertinent to note that the notices issued u/s 143(2), assessment order and the demand notice served upon the present assessee i.e. amalgamated company, have not been returned back by the present amalgamated company to the AO by contending and raising an objection that the notice or assessment in the name of third party has been wrongly and invalidly served upon the assessee company. Since the assessee has not done so, and in the light of the fact that the assessee participated in the assessment proceedings knowingly that assessment proceedings in respect of the assessment of income of the amalgamating company for the period prior to its amalgamation was being made by impleading the amalgamated company. The assessment made by the AO cannot be said to have been made against non-existent company. All these facts taken together goes to show that the present assessee, amalgamated company, has been constantly treating the assessment being made against the amalgamated company in respect of the assessment of amalgamating company for the period to its amalgamation. Further, the assessee has not been abl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as, in the present case, it is clearly found by us that the present amalgamated company had appointed the authorized representative to appear before the AO, produced books of accounts and other details, received the notices of hearing, received copy of assessment order and demand notice, and then also filed an appeal before the learned CIT(A) arraying itself as an appellant, describing as Mcorp Global P. Ltd. (in the case of assessment made in the name of M/s Spice Corporation Ltd. which stands amalgamated with the appellant company w.e.f. 1.7.2003). In the present case, we find that the assessment was in effect and substance made after giving proper opportunity of being heard to the amalgamated company, and it is the case where a technical omission has been made by the AO by not mentioning the name of amalgamated company along with the name of amalgamating company in the body of the assessment order though, in fact and effect, the assessment was meant to be made against the amalgamated company in respect of the income of amalgamating company for the period prior to amalgamation. 13.2 The assessee has also relied upon the decision of Delhi Tribunal in the case of M/s Modicor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection. The amalgamated company was well aware about the assessment proceedings being made in respect of the assessment of an income of amalgamating company for the period prior to its acquisition. Therefore, in the present case, the AO has complied all the provisions of the Act, and mere because the name of amalgamated company is not mentioned in the body of the assessment order made by the AO, that would not vitiate the assessment as a whole so as to render the assessment as null and void. The omission to mention the name of the amalgamated company in the body of assessment is, in our considered opinion, is fully saved by Section 292B of the Act, as held above. 13.4 Similarly, all other decisions relied upon by the assessee, which are placed in the paper book, have been rendered in the context of different facts distinguishable from that of the present case, and are thus of no help to the assessee s contentions. 14. In the light of the discussions made above, we, therefore, hold that the assessment made by the AO, in substance and effect, is not against the nonexistent amalgamating company. However, we do agree with the proposition or ratio decided in the various cases re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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