2022 (8) TMI 729

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.... AO on 07.08.2013 in the name of M/s. Morgan Construction Company Ltd (hereinafter "MCCPL") when M/s. MCCPL was no longer in existence and had already amalgamated with M/s. Siemens Limited and when the AO was aware that M/s. MCCPL had already merged with M/s. Siemens Ltd w.e.f. 1st October, 2011 vide Hon'ble Bombay High Court order dated 17.08.2012, [which fact was brought to the notice of AO vide letter dated 17.09.2012], the assessment order framed resultantly was held to be bad in law. According to Ld CIT(A), since the mandatory notice u/s 143(2) of the Act was issued to non-existing company M/s. MCCPL, all consequent action was held to be non-est and void in the eyes of law. Against this action of the Ld. CIT(A) on the legal issue held ....

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....nformed the AO during the course of the assessment proceedings vie its letter dated 17.09.2012 the fact that Morgan Construction Company (I) Pvt. Ltd. (PAN-AAACM6828M) was amalgamated with Siemens Limited (PAN-AAACS0764L) effective from 1 October 2011. This was in the knowledge of the AO is borne by the fact that the assessment order contains "....The company has been merged with M/s. Siemens Ltd. with effect from 1st October, 2011 vide Bombay High Court order dated 17th August 2012. Accordingly, the jurisdiction was transferred to the undersigned vide forwarding letter dated 06.02.2013. Also notice u/s 142(1) dated 7th February, 2013 was issued......." It is also a fact that notice u/s 143(2) was issued on 07.08.2013 in t....

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....ainst a non-existing entity goes to the root of the matter and matter and it is not a procedural irregularity but a jurisdictional defect and there cannot be any assessment against a non-existing entity or a dead person. As a result, the assessment order passed by the AO is void ab initio and the ground of appeal of the appellant is allowed. The rest of the ground of appeal become inconsequential and are therefore not adjudicated upon. 8. In the result the appeal is treated as allowed." 4. Aggrieved by the aforesaid action of the Ld. CIT(A) upholding the legal issue of non-issue of mandatory notice u/s 143(2) of the Act to its successor company (M/s. Siemens Ltd.) before framing of assessment order u/s 143(3) of the Act, despite....

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....decision of the Hon'ble Supreme Court in the case of PCIT Vs. M/s. Maruti Suzuki India Limited (Civil Appeal No.5409 of 2019) wherein their Lordship have observed regarding invalid notice u/s 143(2) of the Act is as under: - "Despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approval scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation." 8. In the light of the aforesaid dictum of law on the facts which could not be controverted, we do not find any in....