TaxTMI 
TaxTMI 
2015 (2) TMI 580
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....ly, we proceed to decide ground No.3 of the assessee's appeal which reads as under:- "Without prejudice to the above grounds of appeal, the learned Commissioner of Income Tax (Appeals) ought to have held that the notice issued u/s 148 of the Income-tax Act, 1961 and the consequent assessment in the name of the erstwhile firm is bad in law, void ab-initio and non-est." 3. Learned counsel for the assessee stated that the notice under Section 148 was issued on 18th August, 2008 in the name of DLF Cyber City (through partner). That DLF Cyber City partnership firm ceased to exist after its conversion into company with effect from 2nd March, 2006. That the issue of notice in the name of a non-existent person is void ab-initio and similarly, the completion of assessment in the name of a non-existent person is also void. He referred to the notes to the financial statement which read as under:- "5. The firm has been converted into public company - DLF Cyber City Developers Limited with effect from March 2, 2006, under chapter IX of the Companies Act, 1956. Hence the firm's accounts are prepared only upto the period of March 1, 2006." 4. He also referred to the reply furnished....
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....gh Court in 247 CTR 500. That another decision of the ITAT is also prior to the above decision of Hon'ble Delhi High Court. He further stated that the facts in the other cases relied upon by the learned DR are altogether different. He, therefore, submitted that on the facts of the assessee's case, the decision of Hon'ble Jurisdictional High Court in the case of Spice Infotainment Ltd. (supra) would be squarely applicable. 8. We have carefully considered the submissions of both the sides and perused relevant material placed before us. The facts of the case are that the Assessing Officer issued notice under Section 148 on 18^th August, 2008 in the name of M/s DLF Cyber City (through partner). Therefore, it is undisputed that the notice was issued to the partnership firm. It is also undisputed that the partnership firm ceased to exist from 2nd March, 2006 after its conversion into company under Chapter IX of the Companies Act. For the AY 2006-07, the firm has prepared the accounts for the period 1.4.2005 to 1.3.2006 and also filed the return for the above period. The Revenue has also completed the assessment on the basis of the said return. We also find that the asses....
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....id and liable to be struck down. But, in the present case, we find that the assessment, in substance and effect. Has been made against amalgamated company in respect of assessment of income of amalgamating company for the period prior to amalgamation and mere omission to mention the name of amalgamated company alongwith the name of amalgamating company in the body of assessment against the item "Name of the assessee" is not fatal to the validity of assessment but is a procedural defect covered by Section 292B of the Act. We hold accordingly. 15. We, therefore, restore the assessment back to the file of the AO for his fresh assessment after removing the said defect in the assessment and the AO shall provide reasonable opportunity of being heard to the assessee. Therefore, the Cross Objections raised by the assessee are partly allowed for statistical purposes." 11. The assessee, aggrieved with the decision of the ITAT, filed appeal before Hon'ble Jurisdictional High Court and Hon'ble Jurisdictional High Court in the case of Spice Infotainment Ltd. Vs. CIT -[2012] 247 CTR (Del) 500 quashed the assessment by holding as under:- "Held : No doubt, S was an assessee and an....
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....proceedings afresh from the stage of issuance of notice under s. 143(2) of the Act. In these circumstances, it would be incumbent upon the AO to first substitute the name of the appellant in place of M/s Spice and then issue notice to the appellant. However, such a course of action can be taken by the AO only if it is still permissible as per law and has not become time-barred." 13. In our opinion, the ratio of the above decision of Hon'ble Jurisdictional High Court would be squarely applicable to the case of the assessee. It is a settled law that the partnership firm and the company are separate juridical persons. Under the Income-tax Act also, they are assessed separately. Chapter IX of the Companies Act permits the conversion of the partnership firm into company and, on such conversion, the partnership firm ceases to exist and the company comes into existence. This incident has taken place on 1st March, 2006 and therefore, from 2nd March, 2006, DLF Cyber City firm is no more in existence. Notice under Section 148 was issued on 18th August, 2008, i.e., the date on which the partnership firm was not in existence. Hon'ble Jurisdictional High Court in the above mentioned ....