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TMI Blog2017 (8) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Act, 1961 (in short 'the Act') dated 29/11/2012. 3. The sum and substance of the preliminary objection is that the assessment order passed by the Assessing Officer in the name of Maharashtra Elektrosmelt Limited is non-est in the eyes of law, inasmuch as on the date of order of assessment the said entity had ceased to exist on account of it having amalgamated with Steel Authority of India Ltd. w.e.f. 01/04/2010. As per the appellant, in terms of a scheme of arrangement sanctioned by the High Court vide order dated 12/07/2011, the assessee company stood amalgamated with Steel Authority of India Ltd. At the time of hearing, the Ld. Representative for the assessee pointed out that the concern, Maharashtra Elektrosmelt Limited, had ceased to exist not only at the time of passing of the impugned assessment order but it was also nonexistent at the time when the Assessing Officer initiated the impugned proceedings by issuance of notice under section 147/148 of the Act dated 21/3/2012. Since the aforesaid issue goes to the root of the impugned assessment, the rival Counsels were heard on this aspect at the threshold itself. 4. In the context of the aforesaid, the relevant facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication, assessee also pointed out that " the Notice under Section 148 of the Act has been issued in the name of MEL on 21st March, 2012" and, it is further stated to the Assessing Officer that " MEL was not in existence as at 21.03.2012 i.e. the date of issue of Notice under Section 148 of the Act". In this written submission, assessee, interalia, also referred to the judgment of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. vs. CIT, 247 CTR 500 (Del) to contend that no notice under section 148 of the Act could be issued in the name of the erstwhile company i.e. M/s. Maharashtra Elektrosmelt Limited 5.1 In view of the aforesaid fact-situation, the Ld.Representative for the assessee pointed out that not only was the notice issued under section 148 of the Act in the name of a non-existent concern, but the assessment has also been completed in the name of a non-existent concern, M/s. Maharashtra Elektrosmelt Limited 6. In contrast, the Ld. Departmental Representative has not controverted the factual matrix brought out by the assessee but contended that the Assessing Officer was not made aware of the amalgamation. At the time of hearing itself on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings, the factum of M/s. Spice Corp Ltd. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon'ble High Court was that the assessment was framed against a non-existing 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 Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the Tribunal was correct in holding that the provisions of section 292B of the Act will not make the assessment valid as a defect/omission to incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and purpose of this Act ? (3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the Assessing Officer to make the assessment. 7.1 Considering the entirety of facts and circumstances of the case, we hereby set-aside the action of the Assessing Officer in framing the impugned assessment against M/s. Maharashtra Elektrosmelt Limited on 29/11/2012, because on that date it was a non-existent concern on account of its amalgamation with M/s. Steel Authority of India Ltd. w.e.f. 01/04/2010 following the scheme of amalgamation approved by the High Court dated 12/07/2011. In other words, the assessment order dated 29/11/2012 is held to be invalid and void-ab-initio. Since we have upheld the preliminary plea of the assessee, which goes to the root of the jurisdiction and the assessment has been set-aside as void-ab-initio, the necessity of examination of other Grounds of appeal raised by the assessee on merits of the assessment is obviated. Thus, on the aforesaid aspect itself, the appeal in ITA No.7601/Mum/2013 is allowed as above. 8. In so far as appeal in ITA No.7602/Mum/2013 pertaining to assessment year 2010-11 is concerned, the same is directed against an order passed by CIT(A)-4, Mumbai dated 07/10/2013, which in turn, arises out of an order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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