2022 (4) TMI 617

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.... the previous year relevant to the assessment year 2006-07 through the middle man, Sandeep Garg. The case of the assessee was, therefore reopened under section 147 of the Act by the Assessing Officer ("AO") with the prior approval of the Addl. CIT, Range-7, New Delhi. 2.2 Notice under section 148 of the Act was issued to the assessee on 25.03.2013 in response to which the representative of the assessee attended the proceedings, filed the details culminating into completion of assessment under section 147/143(3) on 10.03.2014 on total income of Rs. 2,10,00,000/- being addition under section 68 of the Act. 3. The assessee appealed before the Ld. CIT(A) who vide his appellate order dated 05.09.2016 dismissed the appeal of the assessee. Aggrieved, the assessee filed appeal before the Tribunal on 30.11.2016 challenging the appellate order on 14 grounds which read as under :- "1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad, both in the eye of law and on the facts. 2. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in rejecting the contention of th....

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....r section 68 of the Act. 9. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the explanation and evidences brought on record by the assessee to prove the identity and creditworthiness of the shareholder as well as genuineness of the transaction. 10. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition despite the fact that the same has been made by the AO without bringing any adverse material on record or to point out any defect in the evidences filed by the assessee. 11. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition despite the fact that even after having served the notices under section 133(6) of the Act, the AO could not bring the investigation to its logical end. 12. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition despite the same having been made on the basis of material collected at the back of the assessee without giving him an opportunity to rebut the same. 13. On the facts and c....

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....ra 19(iv) of the judgment of the Hon'ble Supreme Court in PCIT vs. Maruti Suzuki India Ltd. [2019 (7) TMI 1449 (SC)] in support of his submission. According to Ld. DR The judgment of the Hon'ble Supreme Court in M/s. Dalmia Power Limited & Anr. vs. ACIT [2019 (12) TMI 991 (SC)] is distinguishable on facts. 5.2 The Ld. AR on the other hand submitted that the assumption of jurisdiction by the Ld. AO is different from filing of appeal by the assessee. He referred to para 13 of the judgement of the Hon'ble Delhi High Court in CIT vs. Spice Enfotainment Ltd. (supra) wherein the Hon'ble Delhi High Court quoted from the decision of the Hon'ble Punjab & Haryana High Court dealing with the effect of the provision of section 292B of the Act in CIT vs. Norton Motors [275 ITR 595]. 5.3 Before we proceed further, it is expedient to check the veracity of the argument of the Ld. DR. Admittedly, the first inning of the assessment proceeding in the case of assessee was over with the processing of its return on 19.07.2007 under section 143(1) of the Act. The second inning commenced with the notice under section 148 issued by the Ld. AO on 25.03.2013. Prior to the date of issue of notice under sect....

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....e of the Ld. AO by written letter dated 18.06.2011 which was received in his office on 27.07.2011. On these facts and circumstances of the case, we do not find any fault on the part of the assessee in filing the first and second appal in the name of M/s. Savera Marketing Pvt. Ltd. Consequently, we ignore the arguments of the Ld. DR that the appeal of the assessee itself is not maintainable. In our view reliance by him on certain paras in the decision of the Hon'ble Delhi High Court in Spice Enfotainment Ltd. vs. CIT (supra) and the judgment of the Hon'ble Supreme Court in PCIT vs. Maruti Suzuki India Ltd. (supra) is misplaced as they do not support the case of the Revenue in any way. On the other hand, we find substance in the argument of the Ld. AR that the assumption of jurisdiction by the Ld. AO under section 147/ 148 is entirely different issue from that of filing appeal by the assessee. 6. We find that the assessee's original appeal filed before the Tribunal on 30.11.2016 stands revised and revised Form No. 36 along with additional grounds of appeal has been filed before the Tribunal on 04.01.2021. In the peculiar facts and circumstances of the case, we allowed the appellant ....

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.... processed under section 143(1) of the Act on 19.07.2007. A very significant development took place when the assessee company got merged with M/s. Shark Packaging (India) Pvt. Ltd. w.e.f. 01.04.2008 under a scheme of amalgamation approved by the Hon'ble High Court of Delhi vide order dated 21.01.2011 under section 394 of the Companies Act, 1956. The legal effect of this event of amalgamation is that the assessee company became non-est entity in the eye of law having merged into another legal entity, namely the amalgamated company. Any proceeding initiated and / or taken against a merged non-est entity is illegal and void ab-initio. It is now well settled principle of law that framing of assessment and / or proceedings against the non existing entity/ person is a jurisdictional defect as there cannot be any assessment against a non-est entity. We may notice the judicial precedents holding the same view :- (i) Spice Enfotainment Ltd. vs. CIT [247 ITR 500 (Delhi)] approved by the Supreme Court in CIT vs. Spice Enfotainment Ltd. (Civil Appeal No. 285 - 286 of 2014 decided on 02.11.2017) wherein it is held that assessment framed in the name of non existing entity does not remain a pro....