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TMI Blog2024 (6) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... the action of assessing officer in not issuing notice u/s 143(2) and hence assessment is liable to be quashed. 3. On the basis of facts and circumstances of the case as well as law on the subject Ld. CIT(A) has erred in confirming the action of assessing officer by making an addition of Rs. 40,00,000/- on account of share application money u/s 68 of the I.T. Act, 1961. 4. On the basis of facts and circumstances of the case as well as law on the subject, the Ld. CIT(A) has erred in confirming the action of assessing officer by making addition of Rs. 60,000/- being commission expense u/s 69C. 5. On the basis of facts and circumstances of the case as well as law on the subject, the Ld. CIT(A) has erred in confirming the action of assessing officer by making addition of Rs. 1,89,078/- on account of undisclosed interest income. 6. It is therefore prayed that the addition made by assessing officer and confirmed by CIT(A) may please be deleted. 7. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of appeal." 3. Ground Nos. 1 pertains to validity of re-opening assessment u/s 147 of the Act by issuing notice u/s 148 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing notice u/s 148 on a dead person i.e. non-existing company. It has also raised grounds for non-issuance of notice u/s 143(2) and various additions made in the assessment order. The Ld. CIT(A) has upheld the re-opening of the assessment by stating that the assessee failed to give documents relating to winding up of the company to the Assessing Officer. The company was converted to LLP on 14.02.2015 and up to such date, assessment was to be framed in case of the company and not the LLP. Hence, the objection of the assessee was rejected and the ground was dismissed. The Ld. CIT(A) also sustained the addition of Rs. 40,00,000/- u/s 68 which is at page nos. 29 to 30 of the appellate order. Out of two additions u/s 69C of Rs. 60,000/- each, he sustained one addition and deleted the other one. The addition for the unexplained interest was also upheld. 6. Aggrieved by the order of Ld. CIT(A), the assessee is in appeal before the Tribunal. 7. The Learned Authorized Representative (Ld. AR) has strongly argued against the order of the Ld. CIT(A). The Ld. AR filed two paper books containing 109 and 38 pages. The Ld. AR submitted that notice u/s 148 of the Act was issued on a non-existent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.10.2023 (iv) DCIT vs. M/s Ameriprise India Pvt. Ltd., ITA No.2191/Del/2023, dated 22.12.2023, (v) Spice Entertainment vs. CST, (2012) 18 ELT 43 (Delhi), (vi) CIT vs. Micro Steels (P.) Ltd., (2015) 59 taxman.com 470 (Delhi)(Mag.), (vii) CIT vs. Micra India (P.) Ltd., (2015) 57 taxmann.com 163 (Delhi). The Ld. AR also referred to another decision in the case of Sky Light Hospitality LLP vs. ACIT, 90 taxmann.com 413 (Delhi) which is in favour of Revenue. However, the facts in that case were that the Assessing Officer was having knowledge of factum of conversion of company into LLP, so the provision of Section 292BB came to its rescue, being clerical error in typing in the notice whereas in the case of assessee, in the letter dated 04.10.2018, the Assessing Officer himself has stated that "prior to 16.05.2018, this fact was not brought to the knowledge of the undersigned". Further, various High Courts, including the Delhi High Court have in the following decisions, distinguished the judgment of Skylight Hospitality LLP (supra) and have quashed the notice/assessment framed in the name of a non-existent entity viz: (i) Rajendra Kumar Sehgal vs. ITO, 10 taxmann.com 233 (Delhi), (ii) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Suzuki Powertrain India Limited for (SPIL) which was held to be nullity by the ITAT, since the entity was amalgamated with Maruti Suzuki India Ltd. This view was affirmed by the Hon'ble High Court. The Revenue filed appeal against the said order. The Hon'ble Supreme Court held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases 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. The Hon'ble Supreme Court further stated that the above position holds the field in view of the judgment of a Co-ordinate Bench which dismissed appeal of Revenue, i.e. CIT vs. Spice Enfotainment (Civil Appeal No.285 of 2014, dated 02.11.2017). The facts of the present case are similar to the facts in case of Maruti Suzuki India Ltd. SPIL was a non-existing entity at the time of issue of notice u/s 148; similarly, Aaradhana Exim Pvt. Ltd. was not an entity, when notice u/s 148 was issued in its name. SPIL and MSIL were amalgamated on 29.01.2013; whereas Aaradhana Exim Pvt. Ltd. got converted into Aaradhana Exim L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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