TaxTMI 
TaxTMI 
2015 (4) TMI 917
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.... that purpose a specific ground i.e. ground no. 8 has been raised which read as under: "8. That on the facts and circumstances of the case and the provision of law the Ld. CIT Appeal has failed to appreciate that initiation of proceedings u/s 153C including issue of notice and also completion of assessment on the company which has already become non-existent on account of its merger with other company is illegal and bad in law as such the assessment being bad in law deserves to be quashed." At the first instance, the ld. Counsel for the assessee argued the aforesaid ground. 5. Facts of case in brief are that a Search & Seizure operation u/s 132 of the Act was carried out in the case of Sh. B. K. Dhingra, Smt. Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. on 20.10.2008, during the course of search certain documents belonging to the assessee were seized. Therefore, the proceedings u/s 153C r.w.s 153A of the Act were initiated and the notice u/s 153C of the Act was issued to the assessee. It was also stated in a letter attached to the above said notice that for the earlier notice u/s 153A of the Act issued on 06.07.2010 to the assessee may be treated as withdrawn as it....
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.... assessee's paper book). It was submitted that the AO vide letter dated 23.08.2010 asked the assessee for non-filing of the returns in response to the notice issued u/s 153C of the Act (a reference was made to page no. 2 of the assessee's paper book). It was submitted that the defect for not issuing the notice u/s 153C to the amalgamating company i.e. M/s Windchimes Constructions Pvt. Ltd., was not a curable defect, therefore, the assessment framed on the amalgamated company i.e. the assessee which was non-existent was void ab initio. 8. The reliance was placed on the following decisions of the various Benches of the ITAT: Impsat (P) Ltd. Vs Income Tax Officer, (2004) 91 ITD 354 (Del) ACIT Vs SPN Milk Products Industries Pvt. Ltd., ITA No. 565 to 578/Del/2012 order dated 22.01.2012 of ITAT Delhi Benche 'G' New Delhi. ACIT Vs Dimension Apparels Pvt. Ltd., ITA No. 571 to 576/Del/2012, order dated 21.06.2013 of ITAT Delhi Bench 'B' New Delhi. ACIT Vs Micra India Pvt. Ltd., ITA No. 1060 to 1065/Del/2012 order dated 21.09.2012 of ITAT Delhi Bench 'E' New Delhi. ACIT Vs Chanakaya Export Pvt. Ltd., ITA No. 539 to 544/Del/2012 order dated 19.07.2013 of ITAT Delhi Bench 'B....
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.... it is clear that the notice u/s 153C of the Act by the AO was not issued to M/s Windchimes Constructions Pvt. Ltd. with which the assessee company i.e. M/s Mevron Projects Pvt. Ltd. amalgamated. Therefore, the assessment framed vide order dated 31.12.2010 u/s 153C/143(3) of the Act on the assessee was not valid. 12. Similar issue had been adjudicated in the case of ACIT Vs M/s Micra India Pvt. Ltd. in ITA Nos. 1060 to 1065/Del/2012 order dated 21.09.2012 (supra). In the said case, similar search took place and assessment was framed by the same AO of Central Circle-21, New Delhi and even the first appellate authority i.e. the ld. CIT(A)-II, New Delhi was also the same. The relevant findings have been given in paras 5 & 6 which read as under: "5. On consideration of the above submissions, we find from the orders of the authorities below that the Assessing Officer in its report to the Ld. CIT(A), as mentioned in para no. 16 of the first appellate order, has admitted the fact that the assessee company was amalgamated with M/s Dynamic Buildmart Pvt. Ltd. during the assessment year 2009-10. In the assessment order passed u/s 153C of the Income Tax Act, 1961, name of the transferee....
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....order of the Co-ordinate Bench, we set aside the impugned order passed by the ld. CIT(A) and the assessment framed by the AO on a non-existent company is held to be invalid, for the reason that the initiation of the proceedings for assessment was vitiated for not giving notice to M/s Windchimes Constructions Pvt. Ltd. with which the assessee company amalgamated. 14. On a similar issue, the Hon'ble Calcutta High Court in the case of I. K. Agencies Pvt. Ltd. Vs CWT (supra) held as under: "That the initiation of the proceedings for reopening of assessment depends upon the service of a valid notice in terms of section 17 upon the assessee. A notice issued to a person who is not in existence at the time of issuing such notice cannot make it valid and the law permits the Assessing Officer to issue a fresh notice in conformity with the law. The authorities below totally overlooked the fact that initiation of the proceedings for reassessment was vitiated for not giving notice under section 17 to the assessee and the notice issued upon 'A' which was not in existence at that time was insufficient to initiate proceedings against the assessee who had taken over the liability of 'A' ea....