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TMI Blog2019 (3) TMI 2064X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order cannot be passed in the case of non existing company especially when this has been brought to the knowledge of the department. Decided in favour of assessee. - SHRI AMIT SHUKLA, JUDICIAL MEMBER For the Assessee : Ms. Sangeeta Singh, CA, Ms. Kanishka Aggarwal, CA For the Department : Shri S.L. Anuragi, Sr. DR ORDER SHRI AMIT SHUKLA, JUDICIAL MEMBER The aforesaid appeal has been filed by the assessee against impugned order dated 7.12.2017, passed by Ld. CIT(Appeals) 35, New Delhi for the quantum of assessment passed u/s 147/143(3). In various grounds of appeal the assessee has challenged the assessment of reopening u/s 147 and addition of Rs. 5 lac made u/s. 68 by the AO. 2. The facts in brief are that Assessee Company was incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ceased to exist, w.e.f. 5.6.2013; and in support, assessee has duly filed the copy of master data wherein assessee's name has been struck off. This was specifically communicated to the AO vide letter dated 21st March, 2016. However, AO despite such communication has passed assessment order in the name of non existing entity which is bad in law. Again this fact was reiterated before the Ld. CIT(A), who in the impugned order has even incorporated the said notices and undertaking made by the Registrar of the Company to the Income Tax Department. Thus, entire assessment order is void ab initio and cannot be sustained. In support she relied upon following judgments:- 1. Hari Prasad Jayantilal Co. v. V.S. Gupta, Income Tax Officer SUPREME C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act 1956 -Business discontinued - Assessment year 2001-2002 - Whether when company itself is dissolved under section 560 of the Companies Act 1956 and became extinct it cannot be considered to be a case of 'discontinuance' of business and section 176 is, therefore, not attracted - Held, yes - Whether in absence of any provision in Act to assess a company that has been dissolved and, thus, ceased to exist, no assessment order can be made against it by Assessing Officer - Held, yes - Whether absence of a provision enabling Assessing Officer to do so cannot be supplied by assessee by merely filing a return and participating in proceedings - Held, yes 5. Commissioner of Income-tax v. Micron Steels (P.) Ltd.HIGH COURT OF DELHI [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was beneficiary of accommodation entry of share application money, and accordingly, assessee's case was reopened and assessment has been made accordingly. Therefore, such an assessment for reopening is not only valid and also addition made therein needs to be sustained. 4. I have considered the rival submissions and perused the relevant finding during the impugned order as well as material referred to before me. One of the main legal contention raised is, that the initiation of proceedings u/s 147 and consequently assessment order framed u/s 147/143(3) is void ab initio as the assessee company has ceased to exist since November, 2013 and therefore, any subsequent proceedings on such non existing company have no legal basis. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny can be made. Any assessment made will be illegal. 5. Despite communications by the Registrar of the Company to the department and again by the Company before the AO and Ld. CIT (A), it is very surprising to see that none of the authorities have addressed this issue, as to how the assessment can be passed in the case of non existing entity which was dissolved much prior of initiation of provision u/s 147/148. Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. vs CIT reported in (2012) 247 CTR 500, has held that assessment in the name of the company which has been amalgamated with another company and stood dissolved is null and void and assessment framed in the name of a non existing entity is a jurisdictional defect and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist and was converted into LLP, it was observed that it will not invalidate the reassessment proceedings and the same was not a jurisdictional error but irregularity and procedural laps which could be cured u/s 292B. In the case before the Hon'ble Court the issue pertains to notice u/s 148 addressed to the erstwhile company. However, it was not a case that where the assessment order was passed in the case of the non existing entity. This distinction has been made clear by the Hon'ble High Court in para 18 in the following manner: 18. Petitioner relies on Spice Infotainment Ltd. v. CIT [2012] 247 CTR 500 (Delhi). Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. After notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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