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TMI Blog2016 (3) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... resh show cause notice in the name of the assessee herein and proceeded to pass the fresh order in the name of the assessee. Pursuant to the merger, the amalgamating ( M/s. The Bond Company Limited) loses its existence in the eyes of law. We find that the section as relied on by the ld.DR on the provisions of section 292BB of the Act cannot be applied in the facts of the instant case for the reason that section 292BB of the Act can be made applicable only for assessment or reassessment proceedings and the same cannot be made applicable for revisional proceedings as contemplated u/s. 263 of the Act. Moreover, the provisions of section 292BB would not come to the rescue of the revenue when there is a basic fault on the assumption of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Calcutta High Court dated 16-05-2014. The ld.AR also placed on record the paper book wherein at page 53 of the paper book, the fact of this merger has been duly informed to the ld.AO vide letter dated 24-11-2014. Admittedly, show cause notice was issued u/s. 263 of the Act by the ld. CIT on 13-01-2015 and section 263 order was passed on 10-03-2015 in the name of The Bond Company Limited. We also find from pages 3-4 of the paper book that the reply to the show cause notice was filed by M/s. Emerald Company Ltd ( the assessee herein) before the ld.CIT. The ld.AR argued that the order passed by the ld. CIT on the dead person is not valid. Hence, the same requires to be quashed as void ab initio. In response to this the ld. CIT DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the section as relied on by the ld.DR on the provisions of section 292BB of the Act cannot be applied in the facts of the instant case for the reason that section 292BB of the Act can be made applicable only for assessment or reassessment proceedings and the same cannot be made applicable for revisional proceedings as contemplated u/s. 263 of the Act. Moreover, the provisions of section 292BB would not come to the rescue of the revenue when there is a basic fault on the assumption of jurisdiction itself on a non-existent entity by the ld.CIT by issuing show cause and passing the order on the non-existent entity. We hold that when there is a jurisdictional defect, it does not become curable. We also find support for our aforesaid cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said dead person . When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the inapplicability of Section 292-8 was additionally premised on the decision of the Punjab Haryana High Court in CIT v. Norton Motor, [2005] 275 ITR 595/146 Taxman 701, that while Section 2928 can cure technical defects, it cannot cure a jurisdictional defect in the assessment notice. ln Spice Entertainment Ltd. (supra), therefore, this Court expressly classified the framing of assessment against a non-existing entity/person as a jurisdictional defect. This has been a consistent position. As early as 1960. In CIT v Express Newspapers Ltd [1960] 40 ITR 38 (Mad.), the Madras High Court held that there cannot be an assessment of non-existent person. The assessment in the instant case was made long after the Free Press Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see any good ground to differ with the said judgment of the Delhi High Court. 8. Accordingly, for the reasons given in the judgment of the Delhi High Court in the case of Spice Infotainment Ltd. (supra), these appeals are dismissed and we decide the substantial questions of law in favour of the assessee and against the revenue. - Decision of Co-ordinate Bench of Bangalore Tribunal in the case of ACIT Vs. Arshed properties Investments P.Ltd reported in 62 Taxmann.com 340, wherein it has been held :- 17. The next issue is with regard to applicability of provisions of section 292BB of the Act. It is clearly - m the statutory provisions that these provisions only insulate the AO from the proof of service of notice . 143(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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