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TMI Blog2019 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. - ITA No.4286 to 4287/DEL/2013 - - - Dated:- 3-1-2019 - Sh. N. K. Billaiya, Accountant Member And Ms. Suchitra Kamble, Judicial Member For the Appellant : Smt. Naina Soin Kapil, Sr. DR For the Respondent : Sh. Salil Kapoor,Advocate, Ms. Somya Singh, Advocate ORDER PER N. K. BILLAIYA, AM: ITA No.4286/Del/2013 and 4287/Del/2013 are appeals by revenue directed against the order of the CIT (A), Hubli dated 26.04.2013 pertaining to A. Y. 2004-05 and 2005-06. 2. Since, FAA has decided these appeals by a consolidated order both these appeals were heard together and are disposed of by this common order for the sake of convenience. 3. The common grievance in both these appeals relate to the deletion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as they are not relevant for the facts under consideration. 8. Rule 27 read the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. 9. We find that before the FAA the assessee has raised, interalia, following ground :- 1. That on facts and in law, the DCIT, Circle 3(1), Hubli ( Learned AO ) erred in completing the assessment u/s 147 of the Income Tax Act, 1961 ( the Act ) against KNG which is amalgamated with TAIL w.e.f. April 1, 2007 and ceased to exist at the initiation and completion of the assessment proceedings u/s. 147/148. Accordingly, the appellant pleads that the assessment proceedings against the non-existent entity are invalid and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2007. Even if the assessee 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 u/s 148 was sent, the appellant company appeared and brought this fact to the knowledge of the Assessing Officer. He however did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of KN Guruswamy Oil Mills Limited 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. 12. Once it was found that assessment is framed in the name of non-existing entity, it does not remain a procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/ its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292 B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person , 15. The order being fra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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