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TMI Blog2016 (4) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Trading Investment Company Ltd. (in short ITICL‟) for Assessment Year 2006-07 declaring a loss of ₹ 5,24,13,838/- which was subject to scrutiny assessment u/s 143(3) of the Act whereby the total income has been assessed at ₹ 2,89,19,530/- after making certain disallowance/additions. The appeal of the assessee was partly allowed by the CIT(A). Against some of the reliefs granted by the CIT(A), Revenue is in appeal before us whereas the assessee is in appeal on the points held by the CIT(A) against the assessee. Accordingly, cross-appeals have been preferred by the assessee and the Revenue before us. 3. At the time of hearing, the first and the foremost plea raised by the assessee was to the effect that the impugned assessment order finalized by the Assessing Officer in the name of ITICL was a nullity in the eyes of law because on the date of passing of the assessment order, the said concern, i.e. ITICL, was not in existence inasmuch as it stood amalgamated with one M/s. Instant Holdings Ltd. (in short IHL‟). Since this plea of the assessee goes to the root of the matter and it has been contested by the assessee even before the lower authorities, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (ITA No. 475 476 of 2011 dated 3.8.2011), copy of which has been placed on record. The said judgement has been relied upon for the proposition that once it is found that the assessment is framed in the name of a non-existing entity, it does not remain a mere procedural irregularity and rather it amounts to a jurisdictional defect as there cannot be any assessment against a dead person. Further, the learned representative submitted that similar view has been expressed by the Hon'ble Karnataka High Court in the case of CIT v. Intel Technology India Pvt. Ltd. (57 Taxmann.com 159) following the decision of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra). The learned representative also referred to a subsequent judgement of the Hon'ble Delhi High Court in the case of CIT Central v. Micra India Pvt. Ltd. (57 Taxmann.com 163) wherein also a similar proposition has been upheld by following its earlier judgement in the case of CIT v. Dimensions Apparel Pvt. Ltd. (370 ITR 288) (Del). 6. On the other hand, the learned Departmental Representative (in short the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved consequent upon its amalgamation with M/s. MCorp Private Ltd. w.e.f. 1.7.2003 was a mere procedural defect. In this background, the Hon'ble Delhi High Court formulated the following questions of law: (i) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the action of the Assessing Officer in framing assessment in the name of Spice Corp Ltd. , after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f 01.07.2003, was a mere procedural defect ? (ii) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that in view of the provisions of section 292B of the Act, the assessment, having in substance and effect, been framed on the amalgamated company which could not be regarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue as well as the assessee in their separate appeals ? 11. To the similar effect are the judgements of the Hon'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and Micra India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is safe to deduce that an order of assessment made on an entity which is otherwise non-existent on the date of such assessment is invalid. 12. Factually speaking, in the present case the aforesaid proposition applies on all fours, as before the finalization of the impugned assessment on 19.12.2008, it was brought to the notice of the Assessing Officer that ITICL stood amalgamated with IHL w.e.f. 1.4.2007 in terms of a scheme of amalgamation approved by the Hon'ble High Court vide order dated 14.12.2007. In our considered opinion, the aforesaid error on the part of the Assessing Officer is liable to be construed as a jurisdictional defect which goes to the root of the matter and such an assessment order is ..... 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