TaxTMI 
TaxTMI 
2016 (2) TMI 1077
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....1/06-07 dated 23.10.2006 and 14.02.2008 respectively. Assessments were framed by ACIT/DCIT, Circle-1, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Years 2003-04 & 2004-05 vide his orders dated 15.03.2006 and 08.12.2006 respectively. 2. In these four appeals, two by assessee and two by revenue, the Ld. Counsel for the assessee has raised additional ground that in both the assessment years i.e. 2003-04 and 2004-05 the assessment orders u/s. 143(3) of the Act dated 15.03.2006 and 08.12.2006 respectively was passed on a non-existent company having amalgamated with RICOH India Ltd. w.e.f. 01.04.2004 qua this assessee has raised following identically worded additional grounds in AY 2003-....
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....mpany and the said transferor company and their shareholders and all concerned." On query from the Bench, the Ld. Sr. DR fairly conceded the factual position and stated that yes the assessments were framed on a non-existent company i.e. Gestetner (India) Ltd. and whereas no assessment was framed on RICOH India Ltd. Ld. Counsel for the assessee relied on the decision of Hon'ble Delhi High Court in the case of ITA 475 & 476 of 2011, Spice Entertainment Ltd. Vs. Commissioner of Service Tax dated 03.08.2011. 4. We have heard rival contentions and gone through facts and circumstances of the case. The factual position is that for AY 2003-04 assessment was framed by the AO u/s. 143(3) of the Act vide order dated 15.03.2006 and for AY 2004-05....
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....the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 12. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions ofSection 292B of the Act. Sect....
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....e assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the re....
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..... Likewise, in the case of Sri Nath Suresh Chand Ram Naresh Vs. CIT (2006) 280 ITR 396, the Allahabad High Court held that the issue of notice under Section 148 of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent procee....