TaxTMI 
TaxTMI 
2019 (7) TMI 735
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....t. In this respect, the ld. AR took us to paper book page 31 where from for recording reasons for initiating proceedings u/s 148 of the Act was placed and our specific attention was invited to column 8 where the Assessing Officer has written no against the question as to whether assessee had filed return of income. It was submitted that Assessing Officer had wrongly noted this observation as the assessee had duly filed its return of income and which the Assessing Officer vide note 1 at the same page have noted himself. Therefore, it shows that Assessing Officer had not applied his mind as the Assessing Officer failed to take into consideration the return filed by the assessee and therefore, relying on the judgment of Hon'ble High Court Shamshad Khan Vs ACIT (2017) 395 ITR 265, the ld. AR submitted that the reason recorded by Assessing Officer does not indicate application of mind. The ld. AR further submitted that non-application of mind and casual approach of Assessing Officer is also apparent from the fact that Assessing Officer held that assessee had contrived losses from Bharat Rasayan Finance Ltd., whereas in the assessment order there is mention of one more broker M/s Sheh....
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....her company w.e.f. 01.04.2010. The ld. AR invited our attention to paper book page 29 where the letter by the Assessing Officer intimating to the assessee regarding reopening was placed and then the ld. AR further took us to paper book page 30 where the copy of letter written by assessee intimating to the Assessing Officer regarding amalgamation of the assessee company was placed. The ld. AR further submitted that at the time of recording reasons and initiating proceedings u/s 147 of the Act, it was in the knowledge of the department that the assessee company did not exist as it had amalgamated with another company and which fact is apparent from the copy of order of CIT(A) in the case of assessee itself for assessment year 2006-07 placed at paper book pages 43 to 52 and wherein the ld. CIT(A) has annulled the assessment only on this ground. Therefore, it was argued that initiation of reassessment proceedings itself were void ab initio as these were carried out on a company which was not inexistence and the department was aware of this fact. 5. The ld. Departmental Representative, on the other hand, submitted that at the time of initiation of reassessment proceedings, it has to ....
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....e Court has held that it was a case only of a clerical mistake whereas in the case under consideration, no such material was there in the reasons recorded and Assessing Officer recorded reasons only in the case of assessee which was not inexistence at that point of time. It was further submitted that Assessing Officer mentioned the fact of having assessee merged with another company only on the basis of a letter written by assessee. Therefore, it was argued that the case law of Skylight Hospitality LLP is distinguishable on the facts and in this respect the ld. AR relied on a order of Delhi Tribunal in ITA No.5065/Del/2017 where the Hon'ble Tribunal has distinguished the judgment of Skylight Hospitality LLP and our specific attention was invited to para 9. 8. I have heard the rival parties and have gone through the material placed on record. The last plea argued by the ld. AR regarding issuance of reasons recorded on a non-existent company is a jurisdictional issue and which has to be decided first and therefore, I decide this issue as follows. 9. It is an undisputed fact that assessee got merged with another company M/s Radhu Developers Pvt. Ltd. vide amalgamation order d....
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....expected to be in the knowledge of Assessing Officer. Since, the Assessing Officer has recorded the reasons in the name of assessee which was not inexistence and the fact of not being inexistence was in the knowledge of department, the notice issued and reasons recorded are void ab initio and therefore, any assessment order passed in consequence thereof is also null and void. The case law of Hon'ble Supreme Court in the case of Skylight Hospitality LLP does not apply to the facts and circumstances of the case as in that case in the reason to believe itself the Assessing Officer had mentioned the fact that company had merged with another company. The Hon'ble Supreme Court in para 6 has noted the reasons recorded. I further find that the judgment of Hon'ble Supreme Court has been distinguished by Hon'ble Delhi Bench in the case of Sindhu Trade Links Ltd. vide order dated 25.05.2018. The Hon'ble Tribunal vide para 9 has dismissed the appeal of Revenue under similar facts and circumstances. For the sake of convenience, para 9 of the said order is reproduced below: "9. We have considered the rival submissions. It is not in dispute that the A.O. recorded reasons for reopening of....