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TMI Blog2022 (4) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 147 read with section 143(3) of the Act on 10.03.2014 We have no hesitation in holding that Ld. AO was not within his jurisdiction to frame the reassessment in the name of non-existing entity and such reassessment order dated 10.03.2014 is nullity and not sustainable in the eye of law. - Decided in favour of assessee. - ITA No. 6139/Del/2016 - - - Dated:- 11-4-2022 - Dr. B.R.R. Kumar, Accountant Member And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Ved Jain, Advocate For the Department : Shri Umesh Takyar, Sr. DR ORDER PER ASTHA CHANDRA, JM The appeal filed by the assessee is directed against the order dated 05.09.2016 of the Commissioner of Income Tax (Appeals)-28 New Delhi ( CIT(A) ) pertaining to the assessment year 2006-07. 2. The assessee filed its return of income declaring loss of ₹ 29,290/- on 28.11.2006. The return was processed under section 143(1) of the Income Tax Act, 1961 (the Act ) on 19.07.2007. 2.1 In the post search investigation carried out by the Directorate of Income Tax (Inv.) New Delhi in respect of the bogus accommodation entries provided by S.K. Jain group of companies, the name of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to disclose fully and truly all material facts necessary for assessment, as the same has been reopened after a period of four years from the end of relevant assessment year and the assessment has already been made under Section 143(3). 5. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the order passed by learned A.O. is bad both in the eye of law and on facts, as the assessee had already disclosed fully and truly all material facts necessary for the assessment under Section 143(3). 6. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the order passed by learned A.O. under Section 147 is bad both in the eye of law and on facts, as the same has been passed without service of statutory notice under section 148. 7. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the order passed by AO is bad both in the eye of law and on facts as the same has been passed without receiving s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein that while filing an appeal on 30.11.2016 the assessee has left out the grounds of appeal on one of the legal issues pertaining to reopening under section 147 read with section 148 of the Act. It was requested that the additional grounds No. 15 and 16 mentioned below be admitted as these legal grounds go to the root of the matter and all the facts relating thereto are already on record. 15. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in confirming the order passed by the AO u/s 147/143(3), despite the fact that the same being passed in the name of a nonexistent entity, is illegal and void ab-initio. 16. On the circumstances and facts of the case, the reassessment framed in the name of M/s. Savera Marketing Pvt. Ltd. which had since amalgamated with M/s. Shark Packaging (India) Pvt. Ltd. and had ceased to exist in the eye of law, was non est. 5. The hearing before the Tribunal took place on 08.02.2022. 5.1 At the very outset, Ld. DR submitted that the amalgamating company namely, assessee merged with the amalgamated company w.e.f. 21.01.2011 and therefore, the appeal filed by the assessee before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(2) dated 22.08.2013 addressed to Shri Vijay Surjan (Director), M/s. Savera Marketing Pvt. Ltd. was issued fixing the date of hearing on 06.09.2013 (page 35 of paper book) along with notice under section 142(1) of the Act and Annexure A recording the reasons for the belief that the income of ₹ 2,10,00,000/- in the case of M/s. Savera Marketing Pvt. Ltd. has escaped assessment (pages 36 and 37 of Paper Book). Again notices under section 143(2) and under section 142(1) both dated 06.01.2014 were issued to Shri Vijay Surjan (Director), M/s. Savera Marketing Pvt. Ltd. fixing the date of final hearing on 10.01.2014 culminating in framing of assessment of M/s. Savera Marketing Pvt. Ltd. under section 147 read with section 143(3) of the Act dated 10.03.2014. This reassessment order of the Ld. AO was challenged by the assessee, M/s Savera Marketing Pvt. Ltd. before the Ld. CIT(A) who dismissed the appeal by order dated 05.09.2016 passed under section 250(6) of the Act in the name of M/s. Savera Marketing Pvt. Ltd. 5.4 In the background of the above factual matrix, it is obvious that the assessee had no choice but to file the first appeal before the Ld. CIT(A) in the name of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. vs. CIT [(1998) 229 ITR 383 (SC)] wherein the Hon ble Supreme Court observed that undoubtedly, the Tribunal has the discretion to allow or not to allow new ground to be raised. But where the Tribunal is only required to consider a question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 9. The question of law which emanates from the additional ground is that the impugned reassessment order under section 147/143(3) passed by the Ld. AO on 10.03.2014 is illegal and ab-initio void as the same has been passed in the name of M/s. Savera Marketing Pvt. Ltd. a non-existing entity which had since been amalgamated with M/s. Shark Packaging (India) Pvt. Ltd. and has ceased to exist in the eye of law. The Ld. AR submitted a Paper Book consisting of 48 pages which throw light on the factual matrix of the case. He also filed a compilation of case laws relied upon by him. 10. We have heard the submissions of the parties and have carefully considered their arguments, perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amenable to the assessment proceedings by issue of notice under section 148. (v) PCIT vs. Maruti Suzuki India Ltd. (CA No. 5409 of 2019 dated 25.07.2019) wherein the Hon ble Supreme Court held that despite the fact that the Assessing Officer was informed about the factum of amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceased to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. (vi) Gayatri Microns Ltd. vs. ACIT [(2020) 424 ITR 288 (Guj.)] holding that the transferor would cease to exist as a result of approved scheme of amalgamation and as such notice issued under section 148 in its name would be fundamentally illegal and without jurisdiction. SLP filed by the revenue has been dismissed by the Supreme Court in ACIT vs. Gayatri Microns Ltd. [(2021) 278 Taxman 274 (SC)] 12. Let us now test the facts of the case in hand on the touchstone o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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