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TMI Blog2018 (2) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Contentions raised by the petitioner in brief are:- (i) Notice under Section 147/148 of the Act dated 30.03.2017 was addressed and issued to M/s Sky Light Hospitality Pvt. Ltd., PAN No. AALCS3800N, a company which had ceased to exist and was dissolved on 13.05.2016. This notice issued to a dead juristic person is invalid and void in the eyes of law. (ii) Section 292B of the Act is inapplicable as (a) issue of notice in the name of the Assessee to be assessed is a jurisdictional pre-condition and (b) the Assessing Officer after due application of mind and deliberation had issued notice to M/s Sky Light Hospitality Pvt. Ltd. Impugned order dated 09.11.2017 is relied. Accordingly, this is not a case of error, mistake or omission on the part of Assessing Officer. The Assessing Officer had intentionally issued notice under Section 147/148 of the Act to M/s Sky Light Hospitality Pvt. Ltd. and not in the name of Sky Light Hospitality LLP. (iii) There is lack of live nexus and "reasons to believe" are mere reasons to suspect that do not establish that income had escaped assessment. 4. The respondent has contested the contentions raised. Error or mistake in addressing the notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 8 crores were received on 25.07.2012. It is also to be noted that the possession of above land was handed over by the assessee to DLF on 05.08.2008. (c). From the above and on the basis of submissions made by the assessee during assessment proceedings of AY 2013-14, it is found that the assessee had claimed to have received advance of Rs. 5 crores from DLF even before the purchase of land, for which agreements were signed later. Further, assessee after purchasing the said land made payment to* convert the land from agricultural use to non-agricultural use. Also, the collaboration agreement entered with the DLF (from which it had taken loan to buy the land) was done in a short time and sold 50% rights. Further along with looking the agreement dated 07.10.2009 it should be understood that the assessee went into a business agreement to make quick business profit with DLF. Thus, in all the amounts received are the business profits which has escaped assessment in the respective year. (d). Further, assesse had contributed Rs. 35,00,00,000/* to the capital of M/s Saket Courtyard Hospitality vide cheque no. 411355 dated 16.3.2010 drawn on Standard Chartered Bank. However, a loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to transactions between the assessee and third party are mentioned in paragraph (b). Facts were ascertained by the Investigation Unit. Paragraph (c) of the "reasons to believe" refers to the Assessment Order for the year 2013-2014 and the findings recorded. Copy of the said Assessment Order has been placed on record and was passed on 31.03.2016. In paragraph (d) and (e) reference is made to contribution of Rs. 35 crores towards capital in another concern. As per Profit and Loss account, the assessee had suffered loss of Rs. 3.27 crores and the net capital had decreased to Rs. 31.72 crores. The assessee as per Tax Evasion Report had not been able to satisfactorily explain source of Rs. 35 crores. Accordingly, this amount of Rs. 35 crores had escaped from assessment. Paragraph (f) refers to purchase of land at Bikaner for Rs. 79,56,530/-. Source of money for purchase of this land had not been satisfactorily explained before the Investigation Unit. 8. Tax Evasion Report received from the Investigation Unit dated 17.03.2017 placed on record is detailed and elaborate. We are not reproducing the report or its' contents as this is not required and necessary. 9. After going through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting, i.e., "reasons to believe" and approval from the Principal Commissioner. 12. The petitioner relying on the impugned order dated 19th November, 2017 had submitted that the Assessing Officer did not accept the said mistake and had asserted that the notice in the name of M/s Skylight Hospitality Pvt. Ltd. was rightly issued. Reliance was placed on the judgment of the Supreme Court in Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405. This contention is flawed and without merit. Assessing Officer in the order dated 19.11.2017 has tried to defend the notice issued in the name of M/s Skylight Hospitality Pvt. Ltd., whereas the legal position is that the said company had ceased to exist and had been converted into a limited liability partnership, a factum recorded in the tax evasion report, the reasons to believe, the approval granted by the Principal Commissioner and the order under Section 127 of the Act. Attempt by the Assessing Officer to justify and explain why notice was issued in the name of M/s Skylight Hospital Pvt. Ltd. would not obliterate and erase the aforesaid factual position. This error and mistake has led to this litigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aire, which was sent along with another notice dated 7th March 2002 under Section 142(1) and 143(2) of the Act, were submitted. The respondent had only challenged the service of notice and not their validity before the Assessing Officer. Before the appellate authority, however, the respondent took the plea that the notices under Section 148 were defective as the words "Private Limited" were missing. The photocopies of the original notices have been placed on record and show that after the words 'Jagat Novel Exhibitors' some alphabets, which according to the appellant read as 'PL', have been mentioned in the notices for assessment years 1992-93 to 1995-96. As far as notice under Section 148 for the assessment year 1989-90 is concerned, the words "Pvt. Ltd." are clearly stated. The address mentioned on all notices is 1489, Chandni Chowk, Delhi. This is the correct address of the respondent. The tribunal has not accepted the plea of the respondent assessee that the notice under Section 148 of the Act was not duly served as the said notices were sent under registered post at the aforesaid address. It is not the case of the respondent that there was any other firm/concern at the same ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and not to hamper cause of justice and lead to miscarriage of justice. 15. The following paragraphs from M/s Jagat Novel Exhibitors Pvt. Ltd. (supra) on objective behind issue of notice, in consequential defect and purpose behind 292-B of the Act are also relevant :- "42. In Commissioner of Income Tax v. Anand and Company (1994) 207 ITR 418 (Cal.), it has been observed as under:- "In our view, the Tribunal has taken an unduly technical view of the whole matter. The judiciary in this country has never gone on technical triviality. Even in the litigation of private parties, the courts have shown a wide measure of forgiveness in similar acts of omission or failure as pointed out by learned counsel for the Revenue. (See Gouri Kumari Devi's case [1959] 37 ITR 220). At page 223 of the Reports, the Patna High Court has observed as follows: "With regard to the analogous provisions of Order 6, rule 14, there is authority for the view that the omission or failure on the part of the plaintiff to sign the plaint is a mere irregularity which can subsequently be rectified and the omission is not a vital defect. That is the view expressed by the Judicial Committee in Mohini Mohun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to nonjoinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, (2012) 247 CTR 500. Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. After notice under Section 147/148 of the Act was issued and received in the name of Spice Corp. Ltd., the Assessing Officer was informed about amalgamation but the Assessment Order was passed in the name of the amalgamated company and not in the name of amalgamating company. In the said situation, the amalgamating company had filed an appeal and issue of validity of Assessment Order was raised and examined. It was held that the assessment order was invalid. This was not a case wherein notice under Section 147/148 of the Act was declared to be void and invalid but a case in which assessment order was passed in the name of and against a juristic person which had ceased to exist and stood dissolved as per provisions of the Companies Act. Order was in the name of non-existing person and hence void and illegal. 19. Spice Infotainment Ltd.(supra) refers to decision of Allahabad High Court in Sri Nath Suresh Chand Ram Naresh v. CIT, (2006) 280 ITR 396 (All). We have examined the decision in Sri Nath Suresh Chand Ram Naresh (supra) and would observe that facts were peculi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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