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TMI Blog2017 (7) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal of the assessee is allowed. - I.T.A .No.-902/Del/2017 - - - Dated:- 6-4-2017 - SHRI R. S. SYAL, VICE PRESIDENT AND SMT SUCHITRA KAMBLE, JUDICIAL MEMBER For The Appellant : Sh. Ajay Vohra, Sr. Adv, Sh. Neeraj Jain, Adv, Ms. Tejasvi Jain, CA For The Respondent : Sh. Amrendra Kumar, CIT DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 31/10/2016 passed u/s 143(3) read with Section 144C (3) of the Income tax Act, 1961. 2. The main contention of the assessee is that the impugned assessment proceedings were continued in the name of non-existent merge entity i.e. M/s. Suzuki Powertrain India Ltd and final assessment order was also passed in the name of nonex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after notice u/s 142(1) was also issued on 17/10/2014 with the name of M/s. Suzuki Powertrain India Ltd. 5. The Ld. AR submitted that the assessment framed by the Assessing Officer on the amalgamating company is void ab initio. The Ld. AR placed on record the order of the ITAT, New Delhi passed in assessee s own case for Assessment Year 2011-12 (ITA No. 288/Del/2016) wherein the Tribunal has held as under:- 10. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the amalgamating company M/s Suzuki Powertrain India Ltd. amalgamated with M/s Maruti Suzuki India Ltd. w.e.f. 01.04.2012, as a result of scheme of amalgama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at did not lead to the assessment being completed in the name of the transfereecompany. According to the Assessing Officer, the assessee-company was still in existence. Clearly, this was a case where the assessment was contrary to law, as having being completed against a non-existent company. The Tribunal's decision is, in the circumstances, justified and warranted. 12. Similarly, the Hon'ble Jurisdictional High Court in the case of Spice Infotainment Ltd. Vs CIT (supra) held as under: No doubt, M/s Spice was an assessee and as an incorporated company and was in existence when it filed the returns in respect of two assessment years in question. However, before the case could be selected for scrutiny and assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23; . When notice under Section 143 (2) was Maruti Suzuki India Ltd.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 AO made the assessment in the name of M/s Spice which was nonexisting 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. It has been further held as under: Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d through a legal fiction, to the dissolution of companies. Once it is found that assessment is framed in the name of non-existing entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of section 292B. Participation by the amalgamated company in assessment proceedings would not cure the defect because there can be no estoppels against law. 15. In the present case also when the assessment was framed by the AO vide order dated 29.12.2015 in the name of M/s Suzuki Powertrain India Ltd., the said company had already amalgamated with M/s Maruti Suzuki India Ltd. and therefore, it was not inexistence. Moreover, it is clear from Maruti Suzuki India Ltd.the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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