Appeal details
Counselvise Citation
[2021] 108 COUNSELVISE.COM (IT) 1530 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 7 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
29-06-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Next Hearing Date
23-06-2021
Assessment Year
2010-2011
Appeal Filed On
20-11-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER) ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD...........................................APPELLANT 5B, NANDLAL BASU SARANI KOLKATA 700 071 [PAN : AACCE 3506 G] VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(1), KOLKATA.............................RESPONDENT APPEARANCES BY: SHRI S.M. SURANA, ADV., APPEARED ON BEHALF OF THE ASSESSEE. SHRI VIJAY SHANKAR/SHRI MANISH KANOJIA, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 23RD, 2021 DATE OF PRONOUNCING THE ORDER : JUNE 29 TH , 2021 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 21, (HEREINAFTER THE LD. CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 10/09/2018, FOR THE ASSESSMENT YEAR 2010-11. 2. M/S EASTERN MINERAL AND TRADING AGENCY WAS A PARTNERSHIP FIRM ( HEREIN AFTER THE FIRM ). THIS FIRM CEASED TO BE IN EXISTENCE ON 18.03.2010 AS ITS BUSINESS WAS TAKEN OVER BY A LIMITED COMPANY UNDER THE NAME AND STYLE OF EMTA COAL CO LTD. ( HEREIN AFTER THE COMPANY ). THIS COMPANY WAS INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT 1956 TO TAKE OVER THE BUSINESS OF THE FIRM WITH ALL ITS ASSETS AND LIABILITIES VIDE PART I CLAUSE 6 OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY AND ACCORDINGLY, THE SAID COMPANY TOOK OVER THE BUSINESS OF THE FIRM ALONG ALL THE ASSETS AND LIABILITIES W.E.F 19.3.2010. ALL THE PARTNERS OF THE FIRM BECAME SHAREHOLDERS AND SOME OF THEM BECAME THE DIRECTORS. THE CERTIFICATE OF INCORPORATION OF THE COMPANY WAS GRANTED ON 19.3 .2010 AND COMMENCEMENT OF BUSINESS WAS GRANTED ON 26.3 .2010. THE FIRM AND ITS BUSINESS WERE THEREFORE DISCONTINUED AND THE FIRM CEASED TO EXIST FROM 18.03.2010. 2.1. THE PARTNERS, AFTER THE FIRM CEASED TO EXIST, FILED THE RETURN OF INCOME OF THE FIRM M/S. EASTERN MINERAL & TRADING AGENCY FOR THE PERIOD 1.4.2009 TO 18.3.2010 I.E. FOR ASSESSMENT YEAR 2010-11. SEARCH U/S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF THE FIRM ON 15.1.2009.ASSESSMENTS FOR AY 2007-08 TO 2009-10 WERE COMPLETED BY THE ASSESSING OFFICER U/S 143(3)/153A VIDE ORDER DATED 31.12.2010.FOR THE ASSESSMENT YEAR 2010-11 ASSESSMENT WAS COMPLETED IN THE NAME OF THE FIRMM/S. EASTERN MINERAL & TRADING AGENCY U/S 143(3) VIDE ORDER DATED 14.12.2012 AFTER THE FIRMS CLOSURE. 2.2. THE COMPANY M/S. EMTA COAL LTD. F THE INCOME FROM 19.3.2010 TO 31.3.2010 ON 20.3.2012 AND THE RETURNED INCOME WAS ACCEPTED U/S 143(1) OF THE ACT. 2.3. THEREAFTER, THE ASSESSMENTS WER E REOPENED BY THE AO BY ISSUING NOTICE U/S 148 ON 21.3.2014 UNDER THE NAME OF MINERAL AND TRADING AGENCY (SUCCEEDED BY EMTA COAL LTD.)' THREE YEARS WERE FILED. THE ASSESSEE REQUESTED THE AO TO SUPPLY THE COPY OF FOR REOPENING OF THE ASSESSMENT. THE LD. AO SUPPLIED THE COPY OF REASONS RECORDED. IN THE RECORDED REASONS THE LD. AO R M/S EMTA COAL LTD FOR AY 2011 9 BEFORE THE SETTLEMENT COMMISSION, ALLEGED THAT HE HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX FOR THESE YEARS HAD ESCAPED ASSESSMENT 142(1)/143(2) OF THE ACT ON 23.7.2014 OBJECTIONS WERE FILED BY THE ASSESSEE REASONS RECORDED U/S 147 OF THE ACT FOR AL CONTENDED THAT, THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) AND THAT FULL ENQUIRY WAS MADE IN THE ORIGINAL ASSESSMENT, CHANGE OF OPINION . THE AO WAS THEREFORE REQUESTED TO DROP THE PROCEEDINGS FOR ALL THE THRE YEARS BY THE ASSESSEE. A REMINDER DISPOSE OF THE OBJECTION AND DROP THE PROCEEDINGS. AO , WRIT PETITIONS WERE FILED BEFORE HON'BLE CALCUTTA HIGH COURT FOR NO. 343/3441 AND 345/WP/2015, DISPUT THE HONBLE HIGH COURT GRANTED STAY FROM 25TH MARCH 2015 TILL 30TH JULY TILL THE WP IS FINALLY DISPOSED OF. THE WP WAS FINALLY DISMISSED FOR DEFAULT ON 10.6.2016 AND ALL ORDERS STOOD VACATED. THEREAFTER, NEITHER THE ASSESSEE PROCEEDED FURTHER NOR HEARD FROM THE AO. HENCE, THE ACT DATED 21.03.2014 FOR THE AY 2008 OPEN AND/OR GOT TIME BARRED AS NO ACTION WAS TAKEN ON THEM BY THE AO. 2 COMPLETED IN THE NAME OF THE FIRMM/S. EASTERN MINERAL & TRADING AGENCY U/S 143(3) VIDE ORDER DATED 14.12.2012 AFTER THE FIRMS CLOSURE. THE COMPANY M/S. EMTA COAL LTD. F ILED ITS RETURN FOR THE ASSESSMENT YEAR 2010 THE INCOME FROM 19.3.2010 TO 31.3.2010 ON 20.3.2012 AND THE RETURNED INCOME WAS ACCEPTED ASSESSMENTS OF THE FIRM FOR THE ASSESSMENT YEAR 2008 E REOPENED BY THE AO BY ISSUING NOTICE U/S 148 ON 21.3.2014 UNDER THE NAME OF MINERAL AND TRADING AGENCY (SUCCEEDED BY EMTA COAL LTD.)' . THE RETURN OF INCOME FOR ALL THE THREE YEARS WERE FILED. THE ASSESSEE REQUESTED THE AO TO SUPPLY THE COPY OF FOR REOPENING OF THE ASSESSMENT. THE LD. AO SUPPLIED THE COPY OF REASONS RECORDED. IN THE RECORDED REASONS THE LD. AO R EFERRING TO THE APPLICATION FOR SETTLEMENT OF THE CASES FOR AY 2011 -12 TO 2013-14 AND THE REP ORT FILED BY THE LD. PR. CIT IN RULE 9 BEFORE THE SETTLEMENT COMMISSION, ALLEGED THAT HE HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX FOR THESE YEARS HAD ESCAPED ASSESSMENT . THE AO THEREAFTER 142(1)/143(2) OF THE ACT ON 23.7.2014 AND 9.10.2014.ON RECEIPT OF THE REASONS SO RECORDED, OBJECTIONS WERE FILED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE REOPENIN U/S 147 OF THE ACT FOR AL L THE THREE YEARS ON 18.11.2014 THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) AND THAT FULL ENQUIRY WAS MADE IN THE ORIGINAL ASSESSMENT, AND THEREFORE, THE ASSESSMENTS WERE BEING REOPENED ON . THE AO WAS THEREFORE REQUESTED TO DROP THE PROCEEDINGS FOR ALL THE THRE YEARS BY THE ASSESSEE. A REMINDER LETTER DATED 11.3.2015 WAS AGAIN FILED REQUESTING THE AO TO DISPOSE OF THE OBJECTION AND DROP THE PROCEEDINGS. SINCE NO RESPONSE WAS RECEIVED FROM THE , WRIT PETITIONS WERE FILED BEFORE HON'BLE CALCUTTA HIGH COURT FOR ALL THE THREE YEARS NO. 343/3441 AND 345/WP/2015, DISPUT ING THE VALIDITY OF THE NOTICES ISSUED COURT GRANTED STAY FROM 25TH MARCH 2015 TILL 30TH JULY TILL THE WP IS FINALLY DISPOSED OF. THE WP WAS FINALLY DISMISSED FOR DEFAULT ON 10.6.2016 AND THEREAFTER, NEITHER THE ASSESSEE PROCEEDED FURTHER NOR HENCE, THE PROCEEDINGS INITIATED BY WAY OF ISSUE OF NOTICE FOR THE AY 2008 -09, 2009-10 AND 2010- 11 ON 21.03.2014 REMAINED TIME BARRED AS NO ACTION WAS TAKEN ON THEM BY THE AO. ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. COMPLETED IN THE NAME OF THE FIRMM/S. EASTERN MINERAL & TRADING AGENCY U/S 143(3) VIDE ILED ITS RETURN FOR THE ASSESSMENT YEAR 2010 -11 FOR THE INCOME FROM 19.3.2010 TO 31.3.2010 ON 20.3.2012 AND THE RETURNED INCOME WAS ACCEPTED FOR THE ASSESSMENT YEAR 2008 -09 TO 2010-11 E REOPENED BY THE AO BY ISSUING NOTICE U/S 148 ON 21.3.2014 UNDER THE NAME OF 'EASTERN . THE RETURN OF INCOME FOR ALL THE THREE YEARS WERE FILED. THE ASSESSEE REQUESTED THE AO TO SUPPLY THE COPY OF REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THE LD. AO SUPPLIED THE COPY OF REASONS RECORDED. IN THE TO THE APPLICATION FOR SETTLEMENT OF THE CASES FILED BY ORT FILED BY THE LD. PR. CIT IN RULE 9 BEFORE THE SETTLEMENT COMMISSION, ALLEGED THAT HE HAD REASON TO BELIEVE THAT INCOME THEREAFTER ISSUED NOTICES U/S AND 9.10.2014.ON RECEIPT OF THE REASONS SO RECORDED, CHALLENGING THE VALIDITY OF THE REOPENIN G, NOTICE AND THE L THE THREE YEARS ON 18.11.2014 . IT WAS INTER ALIA THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) AND THAT FULL ENQUIRY WAS THEREFORE, THE ASSESSMENTS WERE BEING REOPENED ON . THE AO WAS THEREFORE REQUESTED TO DROP THE PROCEEDINGS FOR ALL THE THRE E FILED REQUESTING THE AO TO SINCE NO RESPONSE WAS RECEIVED FROM THE ALL THE THREE YEARS IN WP ING THE VALIDITY OF THE NOTICES ISSUED U/S 148 OF THE ACT. COURT GRANTED STAY FROM 25TH MARCH 2015 TILL 30TH JULY 2015 AND THEREAFTER, TILL THE WP IS FINALLY DISPOSED OF. THE WP WAS FINALLY DISMISSED FOR DEFAULT ON 10.6.2016 AND THEREAFTER, NEITHER THE ASSESSEE PROCEEDED FURTHER NOR WAS ANYTHING NOTICE S U/S. 148 OF THE 11 ON 21.03.2014 REMAINED 2.4. SUBSEQUENTLY, THE AO FOR THE AY 2010- 11 IN THE NAME OF THE ERSTWHILE FIRM I.E. AAAFE7051M THE AO FURTHER CLAIMED THAT , SPEED POST ON 3.4.2017. SUBSEQUENTLY THE AO ALSO HANDED OVER COPY OF THE SAID NOTICE U/S 148 TO SHRI AVIJIT SARKAR, SENIOR MANAGER (F & A) OF THE COMPANY ON 24.4.2017. POINTED OUT BY THE LD. AR OF THE ASSESSEE TH FIRM, M/S. EASTERN MINERAL & TRADING AGENCY ON AN EMPLOYEE OF THE C OMPANY 2.5. THE AO SENT A LETTER DATED 5.12.2017 STATING THAT NOTICE/S 148 WAS IN FACT ISSUED TO THE COMPANY UNDER THEIR PAN AND THAT THE REASONS WERE ALSO RECORDED FOR REOPENING OF THE ASSESSMENT OF THE COMPANY. THE AO STATES THAT IN THE NAME AND ADDRESS UNDER THE PAN DATA BASE OF M/S. EASTERN M AGENCY, THE FIRM WITH THE PAN NO. OF THE F BUT THIS ERROR COMMITTED IN THE NOTICE U/S 148 OF THE ACT REFERRING TO THE REASONS RECORDED FOR APPROVAL , THE AO CLAIMED AS SUCCESSOR TO THE FIRM. IT IS NOTED THAT T IDENTICAL TO THE REASONS WHICH WERE 21.3.2014. THEREAFTER, T HE AO CONTINUED THE SECOND ASSESSMENT PROCEEDINGS U/S 148 AGAINST THE COMPANY. THE COMPANY HO WEVER DID NOT AGREE WITH THE CLARIFICATION GIVEN BY THE AO. IT CHALLENGED THE AOS ACTION OF CONTINUING THE PROCEEDINGS U/S 148 OF THE ACT AGAINST THE COMPANY FOR THE REASON THAT THE NOTICE U/S 148 OF THE ACT BEARING TRADING AGENCY , WHICH WAS SERVED ON THEM ON 24/04/2017.THE COMPANY CONTENDED THAT THIS WAS A JURISDICTIONAL DEFECT WHICH IS NOT CURABLE U/S 292B OF THE ACT SINCE IT WAS ISSUED IN NAME OF NON-EXISTENT PERSON. THE AO WAS ONLY A PROCEDURAL DEFECT, 2.6. THEREAFTER, T HE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT FOR NON THE COMPANY VIDE ASSESSMENT ORDER DATED 29.12.2017. THE PASSED IN THE NAME OF THE COMPANY, UNDER THE PAN NO. OF THE COMPANY BY MAKING ADDITION ON 3 AGAIN ISSUED A SECOND NOTICE U/S 148 OF THE A 11 IN THE NAME OF EASTERN MINERAL AND TRADING AGENCY AAAFE7051M . IT WAS STATED THAT THE NOTICE WAS SENT ON THE MAIL ID. , HE HAD SENT THE NOTICE TO THE COMPANY , M/S EMTA COAL LTD SPEED POST ON 3.4.2017. SUBSEQUENTLY THE AO ALSO HANDED OVER COPY OF THE SAID NOTICE U/S 148 TO SHRI AVIJIT SARKAR, SENIOR MANAGER (F & A) OF THE COMPANY ON 24.4.2017. POINTED OUT BY THE LD. AR OF THE ASSESSEE TH AT, T HE NOTICE ISSUED IN THE NAME OF THE M/S. EASTERN MINERAL & TRADING AGENCY U/S. 148 OF THE ACT DATED 30.03.2017 WA OMPANY , M/S. EMTA COAL LTD. ON 24.04.2017. THE AO SENT A LETTER DATED 5.12.2017 STATING THAT NOTICE/S 148 WAS IN FACT ISSUED TO THE PAN AND THAT THE REASONS WERE ALSO RECORDED FOR REOPENING OF THE ASSESSMENT OF THE COMPANY. THE AO STATES THAT ALTHOUGH THE NOTICE WAS INADVERTENTL IN THE NAME AND ADDRESS UNDER THE PAN DATA BASE OF M/S. EASTERN M WITH THE PAN NO. OF THE F IRM, BUT IT WAS ISSUED AND SE RVED ON THE COMPANY THIS ERROR COMMITTED IN THE NOTICE U/S 148 OF THE ACT WAS CURABLE U/S 292B OF THE ACT. THE REASONS RECORDED BY HIM AS WELL AS THE MEMO FORWARDED , THE AO CLAIMED THAT THE ASSESSMENT HAS BEEN REOPENED IN THE NAME O IT IS NOTED THAT T HE REAS ONS RECORDED FOR REOPENING THE ASSESSMENT ARE WHICH WERE RECORDED FOR REOPENING THE ASSESSMENT IN FIRST ROUND ON HE AO CONTINUED THE SECOND ASSESSMENT PROCEEDINGS U/S 148 AGAINST THE WEVER DID NOT AGREE WITH THE CLARIFICATION GIVEN BY THE AO. IT CHALLENGED THE AOS ACTION OF CONTINUING THE PROCEEDINGS U/S 148 OF THE ACT AGAINST THE COMPANY FOR THE REASON THAT THE AO NEVER RE- OPENED THE CASE OF THE COMPANY BUT BEARING THE NAME AND PAN OF THE FIRM, M/S. EASTERN MINERAL AND , WHICH WAS SERVED ON THEM ON 24/04/2017.THE COMPANY CONTENDED THAT THIS A JURISDICTIONAL DEFECT WHICH IS NOT CURABLE U/S 292B OF THE ACT SINCE IT WAS ISSUED IN PERSON. THE AO REJECTED THE OBJECTIONS OF THE ASSESSEE AND HELD THAT IT WHICH WAS CURABLE U/S 292B OF THE ACT. HE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT FOR NON THE COMPANY VIDE ASSESSMENT ORDER DATED 29.12.2017. THE ORDER U/S 144/147 OF THE ACT WAS THE COMPANY, UNDER THE PAN NO. OF THE COMPANY BY MAKING ADDITION ON ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. OF THE A CT DATED 30.3.2017 EASTERN MINERAL AND TRADING AGENCY UNDER PAN NO. OF . IT WAS STATED THAT THE NOTICE WAS SENT ON THE MAIL ID. , M/S EMTA COAL LTD BY SPEED POST ON 3.4.2017. SUBSEQUENTLY THE AO ALSO HANDED OVER COPY OF THE SAID NOTICE U/S 148 TO SHRI AVIJIT SARKAR, SENIOR MANAGER (F & A) OF THE COMPANY ON 24.4.2017. IT WAS THUS HE NOTICE ISSUED IN THE NAME OF THE NON-EXISTENT U/S. 148 OF THE ACT DATED 30.03.2017 WA S SERVED THE AO SENT A LETTER DATED 5.12.2017 STATING THAT NOTICE/S 148 WAS IN FACT ISSUED TO THE PAN AND THAT THE REASONS WERE ALSO RECORDED FOR REOPENING OF THE NOTICE WAS INADVERTENTL Y GENERATED IN THE NAME AND ADDRESS UNDER THE PAN DATA BASE OF M/S. EASTERN M INERAL AND TRADING RVED ON THE COMPANY U/S 292B OF THE ACT. AS WELL AS THE MEMO FORWARDED TO OFFICE OF PR. CIT THE ASSESSMENT HAS BEEN REOPENED IN THE NAME O F COMPANY, ONS RECORDED FOR REOPENING THE ASSESSMENT ARE RECORDED FOR REOPENING THE ASSESSMENT IN FIRST ROUND ON HE AO CONTINUED THE SECOND ASSESSMENT PROCEEDINGS U/S 148 AGAINST THE WEVER DID NOT AGREE WITH THE CLARIFICATION GIVEN BY THE AO. IT CHALLENGED THE AOS ACTION OF CONTINUING THE PROCEEDINGS U/S 148 OF THE ACT AGAINST THE OPENED THE CASE OF THE COMPANY BUT HAD ISSUED M/S. EASTERN MINERAL AND , WHICH WAS SERVED ON THEM ON 24/04/2017.THE COMPANY CONTENDED THAT THIS A JURISDICTIONAL DEFECT WHICH IS NOT CURABLE U/S 292B OF THE ACT SINCE IT WAS ISSUED IN THE OF THE ASSESSEE AND HELD THAT IT HE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT FOR NON -COMPLIANCE BY ORDER U/S 144/147 OF THE ACT WAS THE COMPANY, UNDER THE PAN NO. OF THE COMPANY BY MAKING ADDITION ON ACCOU NT OF ALLEGED BOGUS PAYMENT OF OPERATIONAL CHARGES TO THE FOUR PARTIES. DEMAND U/S 156 OF THE ACT WAS ALSO 2.7. AGGRIEVED BY THE ACTION OF THE AO, T ASSESSMENT ORDER P ASSED ON 29.12.2017 BEFORE THE CONCURRED WITH THE CONTENTION OF THE AO THAT NOTICE WAS MEANT FOR, ISSUED COMPANY BUT THE MENTION OF THE NAME THE ACT WAS A MISTAKE CURABLE U/S 292B THE ASSESSEE ON THE VALIDITY OF THE PROCEEDING'S U/S 147 OF THE ACT. THE CIT(A) ALSO OBSERVED THAT THE APPELLANT HAS NOT PRODUCED ANY ABOUT THE MERGER OF THE FIRM WITH THE COMPANY OF THE ASSESSEE BOTH ON THE LEGAL AND CONFIRMED THE ORDER OF THE 3. FURTHER A GGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE, SHRI S.M. SURANA, ADVOCATE, SUBMITTED THAT THE REOPENING OF ASSESSMENT IN THIS CASE IS BAD IN LAW ON VARIOUS LEGAL GROUNDS. HE SUBMITTED THAT, IN THIS CASE, THE FIRM DISCONT INUED ITS BUSINESS AND THE COMPANY ONLY TOOK OVER THE BUSINESS OF THE FIRM ON 18/03/2010 AND CONSEQUENT THERETO, RETURN OF INCOME FOR AY 2010 SAME SUM AS RETURNED BY IT . THE THE FIRM WITH THE COMPANY. INSTEAD IT WAS A CASE OF TAKING OVER OF THE BUSINESS OF THE FIRM ON GOING CONCERN BASIS. IT IS FOR THIS REASON THAT THE THE FIRM AS ITS SUCCESSOR. HE THUS THE INCOME OF THE NON- EXISTENT F INCORRECT AND UNSUSTAINABLE IN LAW 4.1. THE ELABORATE SUBMISSIONS MADE BY ASSESSMENT WAS BAD IN LAW, CAN BE SUMMARIZED BELOW A) NOTICE WHICH WAS SERVED ON THE COMPANY BUT ISSUED IN THE NAME OF THE NON FIRM WAS BAD IN LAW - 148 OF THE ACT WAS ISSUED IN THE NAME OF A NON MINERAL AND TRADING AGENCY 4 NT OF ALLEGED BOGUS PAYMENT OF OPERATIONAL CHARGES TO THE FOUR PARTIES. DEMAND U/S 156 OF THE ACT WAS ALSO RAISED IN THE NAME OF COMPANY. AGGRIEVED BY THE ACTION OF THE AO, T HE ASSESSEE PREFERRED AN ASSED ON 29.12.2017 BEFORE THE LD. CIT(A) . ON APPEAL, THE LD. CIT(A) CONCURRED WITH THE CONTENTION OF THE AO THAT NOTICE WAS MEANT FOR, ISSUED THE NAME & PAN OF THE FIRM IN THE IMPUGNED NOTICE U/S 148 OF WAS A MISTAKE CURABLE U/S 292B OF THE ACT. HE THUS REJECTED THE CONTENTIONS THE ASSESSEE ON THE VALIDITY OF THE PROCEEDING'S U/S 147 OF THE ACT. THE CIT(A) ALSO OBSERVED THAT THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE WHICH SHOWED THAT THE DEP ABOUT THE MERGER OF THE FIRM WITH THE COMPANY . THE LD. CIT(A) THUS REJECTED THE SUBMISSIONS LEGAL VALIDITY OF THE PROCEEDINGS AND ALSO THE MERITS AND CONFIRMED THE ORDER OF THE AO. GGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE, SHRI S.M. SURANA, ADVOCATE, SUBMITTED THAT THE REOPENING OF ASSESSMENT IN THIS CASE IS BAD IN LAW ON VARIOUS LEGAL GROUNDS. HE SUBMITTED THAT, INUED ITS BUSINESS AND THE COMPANY ONLY TOOK OVER THE BUSINESS OF CONSEQUENT THERETO, THE FIRM GOT DISSOLVED. THE FIRM HAD FILED ITS FOR AY 2010 -11 AND THE ASSESSMENT FOR THE SAID AY WAS COMPLETED . THE LD. COUNSEL CLARIFIED THAT THERE WAS NO MERGER/AMAGLAMATION OF THE FIRM WITH THE COMPANY. INSTEAD IT WAS A CASE OF TAKING OVER OF THE BUSINESS OF THE FIRM ON GOING CONCERN BASIS. IT IS FOR THIS REASON THAT THE COMPANY NEVER FILED AN Y RETURN OF INCOME OF THUS POINTED OUT THAT, IN THIS CASE, THE ACTION OF THE AO ASSESSING EXISTENT F IRM IN THE HANDS OF THE ASSESSEE COMPANY AS ITS SUCCESSOR, INCORRECT AND UNSUSTAINABLE IN LAW . ELABORATE SUBMISSIONS MADE BY LD. COUNSEL CONTENDING THAT CAN BE SUMMARIZED BELOW : NOTICE WHICH WAS SERVED ON THE COMPANY BUT ISSUED IN THE NAME OF THE NON THE LD. COUNSEL FOR T HE ASSESSEE POINTED OUT THAT, THE NOTICE U/S 148 OF THE ACT WAS ISSUED IN THE NAME OF A NON - EXISTENT ENTITY I.E. FIRM, MINERAL AND TRADING AGENCY ON 30/03/2017. EVEN THE PAN MENTIONED THEREIN WAS THAT ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. NT OF ALLEGED BOGUS PAYMENT OF OPERATIONAL CHARGES TO THE FOUR PARTIES. THE NOTICE OF PREFERRED AN APPEAL AGAINST THE . ON APPEAL, THE LD. CIT(A) CONCURRED WITH THE CONTENTION OF THE AO THAT NOTICE WAS MEANT FOR, ISSUED AND SERVED ON THE IN THE IMPUGNED NOTICE U/S 148 OF REJECTED THE CONTENTIONS RAISED BY THE ASSESSEE ON THE VALIDITY OF THE PROCEEDING'S U/S 147 OF THE ACT. THE CIT(A) ALSO OBSERVED EVIDENCE WHICH SHOWED THAT THE DEP ARTMENT WAS AWARE REJECTED THE SUBMISSIONS MERITS OF THE ADDITION, THE LD. COUNSEL FOR THE ASSESSEE, SHRI S.M. SURANA, ADVOCATE, SUBMITTED THAT THE REOPENING OF ASSESSMENT IN THIS CASE IS BAD IN LAW ON VARIOUS LEGAL GROUNDS. HE SUBMITTED THAT, INUED ITS BUSINESS AND THE COMPANY ONLY TOOK OVER THE BUSINESS OF THE FIRM GOT DISSOLVED. THE FIRM HAD FILED ITS WAS COMPLETED AT THE LD. COUNSEL CLARIFIED THAT THERE WAS NO MERGER/AMAGLAMATION OF THE FIRM WITH THE COMPANY. INSTEAD IT WAS A CASE OF TAKING OVER OF THE BUSINESS OF THE FIRM ON Y RETURN OF INCOME OF ACTION OF THE AO ASSESSING ASSESSEE COMPANY AS ITS SUCCESSOR, WAS CONTENDING THAT THE REOPENING OF NOTICE WHICH WAS SERVED ON THE COMPANY BUT ISSUED IN THE NAME OF THE NON -EXISTENT HE ASSESSEE POINTED OUT THAT, THE NOTICE U/S EXISTENT ENTITY I.E. FIRM, M/S. EASTERN ON 30/03/2017. EVEN THE PAN MENTIONED THEREIN WAS THAT OF THE ERSTWHILE FIRM. THE NOTICE NOWHERE COMPANY. B) HE REFUTED THE FINDING OF THE AO BUT THE NOTICE GENERATED CLERICAL MISTAKE AND THUS JURISDICTIONAL DEFECT AND HENCE, SECTION 292B CANNOT COME TO THE RESCUE OF THE FIRM. C) AS REGARDS THE FINDING OF THE LD. CIT(A) THAT THE REVENUE WAS NOT AWARE ABOUT THE FACT THAT THE BUSINESS OF THE FIRM HAD OUR ATTENTION TO THE NOTICES ISSUED U/S 148 OF THE ACT DATED 21/03/2014 IN THE NAME OF 'EASTERN MINERAL AND TRADING AGENCY (SUCCEEDED BY EMTA COAL LTD.)' RECORDED PURSUANT THERETO, WHICH FIRM HAD BEEN DISSOLVED ON 18/03/2010. D) HE THUS CONTENDED THAT THE NOTICE ISSUED U/S 148 BEING BAD IN LAW, THE ENTIRE PROCEEDINGS AS WELL AS THE ORDER PASSED U/S 144/147 BE DECLARED AB PROPOSITION, HE RELIED ON THE FOLLOWING CASE LAWS: I) CIT VS. NORTON MOTORS (2005) 275 ITR 595 (P&H); II) P. N. SHASHI KUMAR & ORS. VS. CIT (1988) 170 ITR 80 III) PR. CIT VS. MARUTI SUZUKI INDIA LTD., CIVIL APPEAL NO.5409 OF 2019 IV) RAJBIR SINGH 2 38 ITR 126 (P&H) V) CIT VS. JAGAT NOVEL EXHIBITORS P. LTD., ITA NOS. 7, 2 E) THE LD. COUNSEL FURTHER POINTED OUT THAT, THE AO WAS UNDER THE MISCONCEPTION THAT THE COMPANY WAS TO BE ASSESSED AS THE SUCCESSOR OF THE FIRM. ACCORDING TO H NOT MERGE/AMALGAMATE WITH THE COMPANY. IT WAS A CASE WHERE THE BUSINESS WAS TAKEN WITH EFFECT 18/03/2010 AND THEREAFTER THE FIRM STOOD DISSOLVED. HOWEVER, COULD NOT HAVE BEEN ASSESSED AS A SUCCESSOR OF THE FIRM. PROVISIONS OF SECTION 189 OF THE ACT. HE THUS CONTENDED THAT THE IMPUGNED ORDER WAS BAD IN LAW. FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING JUDGMENTS: 5 OF THE ERSTWHILE FIRM. THE NOTICE NOWHERE MENTIONED THE NAME OF THE ASSESSEE REFUTED THE FINDING OF THE AO THAT, THE NOTICE WAS MEANT TO BE ISSUED TO THE COMPANY NOTICE GENERATED BEARING THE NAME OF THE FIRM WITH THE FIRMS PAN NO. THUS CURABLE U/S. 292B IS BAD IN LAW. ACCORDING TO HIM, THIS WAS A JURISDICTIONAL DEFECT AND HENCE, SECTION 292B CANNOT COME TO THE RESCUE OF THE FIRM. AS REGARDS THE FINDING OF THE LD. CIT(A) THAT THE REVENUE WAS NOT AWARE ABOUT THE FACT THAT THE BUSINESS OF THE FIRM HAD BEEN TAKEN OVER THE COMPANY, THE LD. COUNSEL INVITED OUR ATTENTION TO THE NOTICES ISSUED U/S 148 OF THE ACT DATED 21/03/2014 IN THE NAME OF 'EASTERN MINERAL AND TRADING AGENCY (SUCCEEDED BY EMTA COAL LTD.)' RECORDED PURSUANT THERETO, WHICH CLEARLY SHOWED THAT THE REVENUE WAS AWARE THAT THE FIRM HAD BEEN DISSOLVED ON 18/03/2010. HE THUS CONTENDED THAT THE NOTICE ISSUED U/S 148 BEING BAD IN LAW, THE ENTIRE PROCEEDINGS AS WELL AS THE ORDER PASSED U/S 144/147 BE DECLARED AB HE RELIED ON THE FOLLOWING CASE LAWS: CIT VS. NORTON MOTORS (2005) 275 ITR 595 (P&H); P. N. SHASHI KUMAR & ORS. VS. CIT (1988) 170 ITR 80 PR. CIT VS. MARUTI SUZUKI INDIA LTD., CIVIL APPEAL NO.5409 OF 2019 38 ITR 126 (P&H) CIT VS. JAGAT NOVEL EXHIBITORS P. LTD., ITA NOS. 7, 2 - 5, 8, 10,11, 17 & 22/2006 THE LD. COUNSEL FURTHER POINTED OUT THAT, THE AO WAS UNDER THE MISCONCEPTION THAT THE COMPANY WAS TO BE ASSESSED AS THE SUCCESSOR OF THE FIRM. ACCORDING TO H NOT MERGE/AMALGAMATE WITH THE COMPANY. IT WAS A CASE WHERE THE BUSINESS WAS TAKEN WITH EFFECT 18/03/2010 AND THEREAFTER THE FIRM STOOD DISSOLVED. HOWEVER, COULD NOT HAVE BEEN ASSESSED AS A SUCCESSOR OF THE FIRM. FOR THIS, HE REFERR PROVISIONS OF SECTION 189 OF THE ACT. HE THUS CONTENDED THAT THE IMPUGNED ORDER WAS FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING JUDGMENTS: ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. MENTIONED THE NAME OF THE ASSESSEE ISSUED TO THE COMPANY BEARING THE NAME OF THE FIRM WITH THE FIRMS PAN NO. WAS A ACCORDING TO HIM, THIS WAS A JURISDICTIONAL DEFECT AND HENCE, SECTION 292B CANNOT COME TO THE RESCUE OF THE FIRM. AS REGARDS THE FINDING OF THE LD. CIT(A) THAT THE REVENUE WAS NOT AWARE ABOUT THE FACT BEEN TAKEN OVER THE COMPANY, THE LD. COUNSEL INVITED OUR ATTENTION TO THE NOTICES ISSUED U/S 148 OF THE ACT DATED 21/03/2014 IN THE NAME OF 'EASTERN MINERAL AND TRADING AGENCY (SUCCEEDED BY EMTA COAL LTD.)' AND THE REASONS CLEARLY SHOWED THAT THE REVENUE WAS AWARE THAT THE HE THUS CONTENDED THAT THE NOTICE ISSUED U/S 148 BEING BAD IN LAW, THE ENTIRE PROCEEDINGS AS WELL AS THE ORDER PASSED U/S 144/147 BE DECLARED AB INITIO VOID. FOR THIS PR. CIT VS. MARUTI SUZUKI INDIA LTD., CIVIL APPEAL NO.5409 OF 2019 5, 8, 10,11, 17 & 22/2006 THE LD. COUNSEL FURTHER POINTED OUT THAT, THE AO WAS UNDER THE MISCONCEPTION THAT THE COMPANY WAS TO BE ASSESSED AS THE SUCCESSOR OF THE FIRM. ACCORDING TO H IM, THE FIRM DID NOT MERGE/AMALGAMATE WITH THE COMPANY. IT WAS A CASE WHERE THE BUSINESS WAS TAKEN WITH EFFECT 18/03/2010 AND THEREAFTER THE FIRM STOOD DISSOLVED. HOWEVER, COMPANY FOR THIS, HE REFERR ED TO PROVISIONS OF SECTION 189 OF THE ACT. HE THUS CONTENDED THAT THE IMPUGNED ORDER WAS FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING JUDGMENTS: I. MOTOR SALES VS. CIT 230 ITR 44 (ALL) II. MANGATRAM HAZARIMAL KUTHIALA 125 ITR 91 III. CITY MILL DISTRIBUTORS P LTD. 291 ITR 1 (SC) F) THE LD. COUNSEL ALTERNATIVELY SUBMITTED T THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE REOPENING U/S 147 OF THE ACT BEING INITIATED 2010- 11, THE AO WAS REQUIRED TO FIRST COMPLY WITH THE CONDITION PRECEDENT IN PROVISO TO SECTION 147 OF THE ACT THERE WAS NOT EVEN A WHISPER IN THE RECORDED THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL THE MATERIAL FACTS REQUIRED FOR ASSESSMENT AND FOR THAT REASON THE ACT OF PROPOSITION, HE RELIED ON THE FOLLOWIN I) ORACLE SYSTEM CORPORATION (DELHI) WP 1873/2013 II) JOHNSON & JOHNSON P. LTD., ITA NO. 4912/MUM/2013 DATED 10.08.2020 III) M/S. CYGNUS INVESTMENTS & FINANCE PVT. LTD. ITA NO. 117/KOL/2018 IV) RURAL ELECTRIFICATION SLP NO.1835C/2014 DECIDED ON 28.08.2017 V) SOUND CASTING P. LTD. VS. DCIT 250 CTR 119 (BOM.) VI) CIT VS. ORIENT CRAFT LTD. (2013) 354 ITR 356 (DEL.) VII) CIT VS. VISHISHTH CHAY VYAPARK LTD. ITA NO. 1108 VIII) CIT VS. PRADESHIYA INDUSTRIAL & INVESTMENT CORPN. OF UP LTD. 332 ITR 0324 G) TH E LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUED THAT, W REOPENED ON 21/03/2014ON IDENTICAL REASONS COMPLETED N OR CLOSED, THE ASSESSMENT YEAR FOR THE SAME REASONS WAS ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED U/S 143(3) OF THE ACT ON 14/12/2012. THE REAFTER, THE FIRST REASSESSMENT COMP ANY ON 21/03/2014. THE ON 23/07/2014 AND 31/07/2014. THE ASSESSEE LETTER DT. 18/01/2014. 6 MOTOR SALES VS. CIT 230 ITR 44 (ALL) MANGATRAM HAZARIMAL KUTHIALA 125 ITR 91 DISTRIBUTORS P LTD. 291 ITR 1 (SC) THE LD. COUNSEL ALTERNATIVELY SUBMITTED T HAT, THE REOPENING IS BAD IN LAW FOR THE REASON THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE REOPENING U/S BEING INITIATED BEYOND A PERIOD OF FOUR YEARS FROM THE END OF THE AY 11, THE AO WAS REQUIRED TO FIRST COMPLY WITH THE CONDITION PRECEDENT IN PROVISO TO SECTION 147 OF THE ACT TO VALIDLY REOPEN THE ASSESSMENT. THERE WAS NOT EVEN A WHISPER IN THE RECORDED REASONS THAT THERE WAS THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL THE MATERIAL FACTS REQUIRED FOR ASSESSMENT AND FOR THAT REASON THE ACT OF REOPENING THE ASSESSMENT U/S 148 IS BAD IN LAW PROPOSITION, HE RELIED ON THE FOLLOWIN G CASE-LAW:- ORACLE SYSTEM CORPORATION (DELHI) WP 1873/2013 JOHNSON & JOHNSON P. LTD., ITA NO. 4912/MUM/2013 DATED 10.08.2020 M/S. CYGNUS INVESTMENTS & FINANCE PVT. LTD. ITA NO. 117/KOL/2018 RURAL ELECTRIFICATION SLP NO.1835C/2014 DECIDED ON 28.08.2017 SOUND CASTING P. LTD. VS. DCIT 250 CTR 119 (BOM.) CIT VS. ORIENT CRAFT LTD. (2013) 354 ITR 356 (DEL.) CIT VS. VISHISHTH CHAY VYAPARK LTD. ITA NO. 1108 - 1109/2010 DATED 03.12.2015 CIT VS. PRADESHIYA INDUSTRIAL & INVESTMENT CORPN. OF UP LTD. 332 ITR 0324 E LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUED THAT, W HEN THE ASSESSMENT HAS BEEN ON 21/03/2014ON IDENTICAL REASONS AND SUCH REOPENED ASSESSMENT OR CLOSED, THE AOS ACTION OF INITIATING SECOND REOPENING OF THE SAME FOR THE SAME REASONS WAS BAD IN LAW. HE POINTED OUT THAT ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED U/S 143(3) OF THE ACT ON 14/12/2012. REAFTER, THE FIRST REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WAS INITIATED ON THE ANY ON 21/03/2014. THE AO ALSO ISSUED NOTICES U/S 142(1) AND 143(2) OF THE ACT ON 23/07/2014 AND 31/07/2014. THE ASSESSEE HAD FILED OBJECTIONS TO THE REOPENING VIDE LETTER DT. 18/01/2014. ACCORDING TO THE LD. COUNSEL OF THE ASSESSE ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. THE REOPENING IS BAD IN LAW FOR THE REASON THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE REOPENING U/S FROM THE END OF THE AY 11, THE AO WAS REQUIRED TO FIRST COMPLY WITH THE CONDITION PRECEDENT IN FIRST TO VALIDLY REOPEN THE ASSESSMENT. HE POINTED OUT THAT THERE WAS FAILURE ON PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL THE MATERIAL FACTS REQUIRED FOR ASSESSMENT REOPENING THE ASSESSMENT U/S 148 IS BAD IN LAW . FOR THIS JOHNSON & JOHNSON P. LTD., ITA NO. 4912/MUM/2013 DATED 10.08.2020 M/S. CYGNUS INVESTMENTS & FINANCE PVT. LTD. ITA NO. 117/KOL/2018 RURAL ELECTRIFICATION SLP NO.1835C/2014 DECIDED ON 28.08.2017 1109/2010 DATED 03.12.2015 CIT VS. PRADESHIYA INDUSTRIAL & INVESTMENT CORPN. OF UP LTD. 332 ITR 0324 HEN THE ASSESSMENT HAS BEEN FIRST AND SUCH REOPENED ASSESSMENT WAS NEITHER SECOND REOPENING OF THE SAME POINTED OUT THAT THAT THE ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED U/S 143(3) OF THE ACT ON 14/12/2012. PROCEEDINGS U/S 147 OF THE ACT WAS INITIATED ON THE U/S 142(1) AND 143(2) OF THE ACT FILED OBJECTIONS TO THE REOPENING VIDE ACCORDING TO THE LD. COUNSEL OF THE ASSESSE E, THIS REASSESSMENT PROCEEDINGS WAS NOT TERMINATED AND NOT ICE U/S 148 OF THE ACT DT. 30/03 ASSESSMENT U/S. 147 OF THE ACT. ACTION OF THE AO W AS LAW:- CIT VS. P KRISHNAN KUTTY MENON REPORTED IN 181 ITR 237 [KERALA] THE INDIAN TUBE CO. LTD. VS. ITO REPORTED IN 272 ITR 439 [CAL.} CIT VS. S. RAMAN CHETTIAR [1965] SCR (1) 883 TRUSTEES OF H.E.H. THE NIZAMS SUPPLEMENTAL FAMILY TRUST VS. CIT REPORTED IN 242 ITR 381 (SC) CIT VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA REPORTED IN [1971] 82 ITR 821 (SC) CIT VS. BIBHUTI BHUSAN MALLICK REPORTED IN [1987] 165 ITR 107 (CAL.) H) HE FURTHER ARGUED THAT PROCEEDING U/S. 147 IS BAD IN LAW, SINCE NO FRESH REOPENING OF ASSESSMENT PROCEEDING CAN BE INITIATED ON THE SAME REASONS ON WHICH THE ASSESSMENT WAS REOPENED EARLIER IN THE FIRST ROUND. I. ACIT VS. MA RICO LTD. (SC) II. CIT VS. CENTRAL WAREHOUSING CORPORATION, ITA NO. 575/2012 DATED 15.01.2015 I) THE LD. COUNSEL THEREAFTER PROCEEDED TO FURTHER POINT OUT ISSUANCE & SERVICE OF NOTICE VIZ., (I) ADDRESS OF THE FIRM AND THEREAFTER THE NOTICE U/S 148 OF THE ACT, WAS SENT BY SPEED POST. HE POINTED OUT THAT THE REASONS RECORDED AS WELL AS APPROVAL WAS IN THE NAME OF THE COMPANY. HE SUBMITTED THAT THERE RECORDED, THAT THE ASSESSING OFFICER WAS TREATING THE ASSESSEE COMPANY AS THE SUCCESSOR OF THE ERSTWHILE FIRM, OR G APPLICATION OF MIND BY AO W 7 NOT TERMINATED AND REMAINED PENDING. IN THE MEANWHILE, ICE U/S 148 OF THE ACT DT. 30/03 /2017, WAS ISSUED ONCE AGAIN REOPENING THE ASSESSMENT U/S. 147 OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SUCH AS BAD IN LAW. FOR THIS PROPOSITION, HE RELIED ON THE FOLLOWING CASE CIT VS. P KRISHNAN KUTTY MENON REPORTED IN 181 ITR 237 [KERALA] THE INDIAN TUBE CO. LTD. VS. ITO REPORTED IN 272 ITR 439 [CAL.} CIT VS. S. RAMAN CHETTIAR [1965] SCR (1) 883 TRUSTEES OF H.E.H. THE NIZAMS SUPPLEMENTAL FAMILY TRUST VS. CIT REPORTED IN 242 CIT VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA REPORTED IN [1971] 82 ITR 821 (SC) CIT VS. BIBHUTI BHUSAN MALLICK REPORTED IN [1987] 165 ITR 107 (CAL.) ARGUED THAT PROCEEDING U/S. 147 IS BAD IN LAW, SINCE NO FRESH REOPENING OF ASSESSMENT PROCEEDING CAN BE INITIATED ON THE SAME REASONS ON WHICH THE ASSESSMENT WAS REOPENED EARLIER IN THE FIRST ROUND. FOR THIS, H E RELIED ON FOLLOWING CASE LAW: RICO LTD. (SC) IN WP NO. 1917/2019 DATED 01.06.2020 CIT VS. CENTRAL WAREHOUSING CORPORATION, ITA NO. 575/2012 DATED 15.01.2015 THE LD. COUNSEL THEREAFTER PROCEEDED TO FURTHER POINT OUT SEVERAL DISCREPANCIES ISSUANCE & SERVICE OF NOTICE VIZ., (I) THE NOTICE WAS SENT BY E- MAIL TO THE NON ADDRESS OF THE FIRM AND THEREAFTER THE NOTICE U/S 148 OF THE ACT, WAS SENT BY SPEED POST. HE POINTED OUT THAT THE REASONS RECORDED AS WELL AS APPROVAL WAS IN THE NAME OF THE COMPANY. HE SUBMITTED THAT THERE IS NO WHISPER ANYWHERE IN THE NOTICE OR IN THE REASONS RECORDED, THAT THE ASSESSING OFFICER WAS TREATING THE ASSESSEE COMPANY AS THE SUCCESSOR OF THE ERSTWHILE FIRM, OR G AVE ANY VALID REASON FOR DOING SO. THESE FACTS REVEAL NON APPLICATION OF MIND BY AO W HILE ISSUING NOTICE U/S 148 OF THE ACT. ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. IN THE MEANWHILE, ANOTHER /2017, WAS ISSUED ONCE AGAIN REOPENING THE THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SUCH FOR THIS PROPOSITION, HE RELIED ON THE FOLLOWING CASE - CIT VS. P KRISHNAN KUTTY MENON REPORTED IN 181 ITR 237 [KERALA] THE INDIAN TUBE CO. LTD. VS. ITO REPORTED IN 272 ITR 439 [CAL.} TRUSTEES OF H.E.H. THE NIZAMS SUPPLEMENTAL FAMILY TRUST VS. CIT REPORTED IN 242 CIT VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA REPORTED IN [1971] 82 ITR 821 (SC) CIT VS. BIBHUTI BHUSAN MALLICK REPORTED IN [1987] 165 ITR 107 (CAL.) ARGUED THAT PROCEEDING U/S. 147 IS BAD IN LAW, SINCE NO FRESH REOPENING OF ASSESSMENT PROCEEDING CAN BE INITIATED ON THE SAME REASONS ON WHICH THE ASSESSMENT E RELIED ON FOLLOWING CASE LAW: 01.06.2020 CIT VS. CENTRAL WAREHOUSING CORPORATION, ITA NO. 575/2012 DATED 15.01.2015 SEVERAL DISCREPANCIES IN THE MAIL TO THE NON -EXISTING ADDRESS OF THE FIRM AND THEREAFTER THE NOTICE U/S 148 OF THE ACT, WAS SENT BY SPEED POST. HE POINTED OUT THAT THE REASONS RECORDED AS WELL AS APPROVAL WAS IN THE NAME OF THE IS NO WHISPER ANYWHERE IN THE NOTICE OR IN THE REASONS RECORDED, THAT THE ASSESSING OFFICER WAS TREATING THE ASSESSEE COMPANY AS THE SUCCESSOR THESE FACTS REVEAL NON - 5. THE LD. CIT DR SHRI VIJAY SHANKAR SUBMITTED THAT, IN THE GROUNDS OF ASSESSEE HAS NOT TAKEN SPECIFIC GROUNDS RELATING TO THE SEVERAL LEGAL ISSUES RAISED BY THE LD. COUNSEL CHALLENGING THE VALIDITY OF CHALLENGING THE VALIDITY OF THE NOTICE U/S148 OF THE ACT AS WELL AS PCIT AND THEREFORE HE CONTENDED ALL OTHER ARGUMENTS PERTAINING TO THE LEGALITY OR VALIDITY OF THE REOPENING OF THE ASSESSMENT RAISED BY THE LD. COUNSEL FOR THE ASSESSEE OUGHT NOT BE ADJUDICATED. THE LD. CIT DR CONTENDED THAT, THE LD. CIT(A) AND ACCORDING TO HIM THEREFORE, THE ASSESSEE SHOULD NOT BE PERMITTED TO AGITATE THE SAME WITHOUT RAISING SPECIFIC GROUNDS ON THE VALIDITY OF REOPENING OF THE ASSESSMENT BEFORE THE ITAT. 6. COMING TO THE VALIDITY OF NOTICE U/S 148 OF THE ACT ISSUED IN THE NAME OF THE ERSTWHILE FIRM M/S. EASTERN MINERAL ORDER OF THE LOWER AUTHORITIES AND CONTENDED THAT THE GENERATION OF NOTICE IN THE NAME OF THE FIRM WAS MERELY A HUMAN/COMPUTER ERROR. HE DREW OUR ATTENTION TO PAGE 246 OF THE PAPER BOOK WHICH CONTAINED THE REASONS RECORDED BY THE AO FOR REOPENIN POINTED OUT THAT IN THE RECORDED REASONS, THE AO HAD RECORDED THE NAME OF THE ASSESSEE AS EMTA COAL LTD. (ERSTWHILE PARTNERSHIP FIRM M/S EASTERN MINERAL AND TRADING AGENCY FOR A.Y 2010- 11). HE FURTHER REFERRED TO THE MEMO OF APPROVAL SHOWED THAT THE APPROVAL TO ISSUE NOTICE FOR REOPENING OF ASSESSMENT HAD BEEN GIVEN IN THE NAME OF EMTA COAL LTD. (ERSTWHILE PARTNERSHIP AGENCY FOR A.Y 2010- 11). THEREFORE, ERROR WHILE PRINTING THE NOTICE ISSUED U/S 148 OF THE ACT. HE ARGUED THAT THIS CLERICAL MISTAKE CANNOT INVALIDATE THE REASSESSMENT ORDER. ACCORDING NOT PAVE WAY FOR MISCARRIAGE OF JUSTICE, SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT IN 254 TAXMAN 290. ACCORDING THIS CASE ARE IDENTICAL TO THE FACTS OF M/S. SKYLIGHT HOSPITALITY LTD. MERIT IN THE CONTENTION OF THE ASSESSEE ON THIS SCORE. 7. COMING TO THE GROUND APPLICATION OF MIND BY LD. PCIT, HE DREW OUR ATTENTION TO PAGE 252 OF PB WHEREIN THE LD. PCIT HAS NOTED SATISFY AND ACTION U/S 147/148 APP HAS TAKEN INTO CONSIDERATION 8 DR SHRI VIJAY SHANKAR SUBMITTED THAT, IN THE GROUNDS OF ASSESSEE HAS NOT TAKEN SPECIFIC GROUNDS RELATING TO THE SEVERAL LEGAL ISSUES RAISED BY THE LD. COUNSEL CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT AS BAD IN LAW, THE NOTICE U/S148 OF THE ACT AS WELL AS THE APPROVAL PCIT AND THEREFORE HE CONTENDED ALL OTHER ARGUMENTS PERTAINING TO THE LEGALITY OR VALIDITY OF ASSESSMENT RAISED BY THE LD. COUNSEL FOR THE ASSESSEE OUGHT NOT BE DR CONTENDED THAT, THESE OTHER ARGUMENTS WERE ALSO RAISED BEFORE THE LD. CIT(A) AND ACCORDING TO HIM THEREFORE, THE ASSESSEE SHOULD NOT BE PERMITTED TO SAME WITHOUT RAISING SPECIFIC GROUNDS ON THE VALIDITY OF REOPENING OF THE COMING TO THE VALIDITY OF NOTICE U/S 148 OF THE ACT ISSUED IN THE NAME OF THE MINERAL AND TRADING AGENCY, THE LD. CIT DR SUP ORDER OF THE LOWER AUTHORITIES AND CONTENDED THAT THE GENERATION OF NOTICE IN THE NAME OF THE HUMAN/COMPUTER ERROR. HE DREW OUR ATTENTION TO PAGE 246 OF THE PAPER WHICH CONTAINED THE REASONS RECORDED BY THE AO FOR REOPENIN G THE ASSESSMENT. HE IN THE RECORDED REASONS, THE AO HAD RECORDED THE NAME OF THE ASSESSEE AS EMTA COAL LTD. (ERSTWHILE PARTNERSHIP FIRM M/S EASTERN MINERAL AND TRADING AGENCY 11). HE FURTHER REFERRED TO THE MEMO OF APPROVAL ISSUED BY PR. CIT WHICH SHOWED THAT THE APPROVAL TO ISSUE NOTICE FOR REOPENING OF ASSESSMENT HAD BEEN GIVEN IN THE NAME OF EMTA COAL LTD. (ERSTWHILE PARTNERSHIP FIRM M/S EASTERN MINERAL AND TRADING 11). THEREFORE, ACCORDING TO LD. C ITDR, THE AO HAD COMMITTED AN THE NOTICE ISSUED U/S 148 OF THE ACT. HE ARGUED THAT THIS CLERICAL MISTAKE CANNOT INVALIDATE THE REASSESSMENT ORDER. ACCORDING TO LD. CIT DR, PROCEDURAL NOT PAVE WAY FOR MISCARRIAGE OF JUSTICE, AS HELD BY THE HONBLE SUPREME SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT IN 254 TAXMAN 290. ACCORDING TO IDENTICAL TO THE FACTS OF M/S. SKYLIGHT HOSPITALITY LTD. AND THEREFORE, THERE IS NO CONTENTION OF THE ASSESSEE ON THIS SCORE. GROUND NO.3 RAISED BY THE ASSESSEE WHICH IS LD. PCIT, HE DREW OUR ATTENTION TO PAGE 252 OF PB WHEREIN THE LD. SATISFY AND ACTION U/S 147/148 APP ROVED . ACCORDING TO HIM, THE LD. PCIT CONSIDERATION THE RECOMMENDATION OF JOINT/ADDITIONALCOMMISSIONER ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. DR SHRI VIJAY SHANKAR SUBMITTED THAT, IN THE GROUNDS OF APPEAL THE ASSESSEE HAS NOT TAKEN SPECIFIC GROUNDS RELATING TO THE SEVERAL LEGAL ISSUES RAISED BY THE LD. REOPENING OF ASSESSMENT AS BAD IN LAW, OTHER THAN APPROVAL OF THE LD. PCIT AND THEREFORE HE CONTENDED ALL OTHER ARGUMENTS PERTAINING TO THE LEGALITY OR VALIDITY OF ASSESSMENT RAISED BY THE LD. COUNSEL FOR THE ASSESSEE OUGHT NOT BE THESE OTHER ARGUMENTS WERE ALSO RAISED BEFORE THE LD. CIT(A) AND ACCORDING TO HIM THEREFORE, THE ASSESSEE SHOULD NOT BE PERMITTED TO SAME WITHOUT RAISING SPECIFIC GROUNDS ON THE VALIDITY OF REOPENING OF THE COMING TO THE VALIDITY OF NOTICE U/S 148 OF THE ACT ISSUED IN THE NAME OF THE AGENCY, THE LD. CIT DR SUP PORTED THE ORDER OF THE LOWER AUTHORITIES AND CONTENDED THAT THE GENERATION OF NOTICE IN THE NAME OF THE HUMAN/COMPUTER ERROR. HE DREW OUR ATTENTION TO PAGE 246 OF THE PAPER G THE ASSESSMENT. HE IN THE RECORDED REASONS, THE AO HAD RECORDED THE NAME OF THE ASSESSEE AS EMTA COAL LTD. (ERSTWHILE PARTNERSHIP FIRM M/S EASTERN MINERAL AND TRADING AGENCY ISSUED BY PR. CIT WHICH SHOWED THAT THE APPROVAL TO ISSUE NOTICE FOR REOPENING OF ASSESSMENT HAD BEEN GIVEN IN THE FIRM M/S EASTERN MINERAL AND TRADING ITDR, THE AO HAD COMMITTED AN THE NOTICE ISSUED U/S 148 OF THE ACT. HE ARGUED THAT THIS CLERICAL MISTAKE PROCEDURAL LAW SHOULD AS HELD BY THE HONBLE SUPREME COURT IN M/S. TO HIM, THE FACTS IN THEREFORE, THERE IS NO IS AGAINST THE NON- LD. PCIT, HE DREW OUR ATTENTION TO PAGE 252 OF PB WHEREIN THE LD. . ACCORDING TO HIM, THE LD. PCIT JOINT/ADDITIONALCOMMISSIONER OF INCOME TAX, RANGE- 3 WHEREIN THAT OFFICER HAS RECORDED HIS SATISFIED THAT IT IS A FIT CASE FOR ISSUE LD. PCIT HAS GONE THROUGH THE PROPOSED I.E. REOPENING THE ASSESSMENT OF THE ASSESSEE FOR A.Y 2010 ACT, HE GAVE HIS A PPROVAL TO DO SO AND SATISFIED. THE LD. CIT DR ARGUED THAT IN THIS CASE, IT CANNOT BE SAID THAT APPLICATION OF MIND BY THE LD. PCIT WHILE GIVING THE APPROVAL TO 147/148 OF THE ACT. THEREFORE, ACCORDING TO HIM, THIS GROUND OF APPEAL OF THE ASSESSEE IS DEVOID OF MERITS AND NEED TO BE DISMISSED. 8. FURTHER, COUNTERING THE ARGUMENTS OF THE TAKEN OVER BY THE COMPANY ON THE NOTICES SHOULD HAVE BEEN ISSUED TO THE PARTNERS OF THE DISSOLVED FIRM; AND SINCE IN THIS CASE NO NOTICES HAS BEEN ISSUED TO CITDR CONTENDED THAT SECTION 189 WHICH HAS DISCONTINUED ITS BUSINESS AND IS COMPANY HAS BEEN TAKEN OVER BY THE FIRM AS A GOING CONTENTIONS OF ASSESSEE REGARDING DISMISSED. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PREPARED HIS GROUNDS ON MERIT AND HENCE THE SAME HAVE TO BE DISMISSED. 9. IN HIS REJOINDER THE LD. A.R CITED CASE LAWS TO THE PAPER BOOK CONTAINING CASE LAWS/JUDGMENTS AND CONTENDED THAT THE ASSESSEE IS ENTITLED TO RAISE ANY LEGAL ISSUE AT ANY STAGE OF THE PROCEEDINGS INCLUDING AT APPELLATE FOR THE FIRST TIME BEFORE THI S TRIBUNAL AS HELD BY THE CIT 229 ITR 383 (SC) IF THE FACTS ARE ON RECORD AND NO INVESTIGATION INTO FACTS ARE REQUIRED. HE SUBMITTED THAT THE OMNIBUS GROUND CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT HAS TO BE ADJUDIC ATED BY THE ITAT. HE SUBMITTED PARTY AND THAT THE NOTICE HAS NOT BEEN SERVED AS PER THE REQUIREMENTS OF LAW AND HENCE THE CONSEQUENT ORDER PASSED U/S 144/147 WAS BAD IN LAW. 10. THE LD. CIT, DR AT THIS STAGE SUBM THE SERVICE OF THE NOTICE I.E. THE NOTICE IS SERVED ON SOME EXECUTIVE OF THE COMPANY AND NOT ON 9 3 WHEREIN THAT OFFICER HAS RECORDED HIS SATISFACTION BY SAYING SATISFIED THAT IT IS A FIT CASE FOR ISSUE OF NOTICE U/S 148. THE LD. CIT DR SUBMITTED THAT THE LD. PCIT HAS GONE THROUGH THE REASONS RECORDED AND SINCE HE WAS FULLY SATISFIED BY THE ACTION THE ASSESSMENT OF THE ASSESSEE FOR A.Y 2010 - 11 U/S 147/148 OF THE PPROVAL TO DO SO AND THEREFORE THE REQUIREMENT OF LAW HAS BEEN FULLY SATISFIED. THE LD. CIT DR ARGUED THAT IN THIS CASE, IT CANNOT BE SAID THAT APPLICATION OF MIND BY THE LD. PCIT WHILE GIVING THE APPROVAL TO REOPEN THE ASSESSMENT U/S THE ACT. THEREFORE, ACCORDING TO HIM, THIS GROUND OF APPEAL OF THE ASSESSEE IS DEVOID OF MERITS AND NEED TO BE DISMISSED. FURTHER, COUNTERING THE ARGUMENTS OF THE LD.AR THAT SINCE PARTNERSHIP ON 19.03.2010, SECTION 189 OF THE ACT WILL APPLY AND THEREFORE, HAVE BEEN ISSUED TO THE PARTNERS OF THE DISSOLVED FIRM; AND SINCE IN THIS CASE NO NOTICES HAS BEEN ISSUED TO THE PARTNERS MAKES THE ACTION OF AO ILLEGAL, THE LD. CITDR CONTENDED THAT SECTION 189 OF THE ACT IS IN RESPECT OF FIRM WHICH IS DISSOLVED OR WHICH HAS DISCONTINUED ITS BUSINESS AND IS NOT APPLICABLE IN THE FACTS OF THIS CASE, SINCE THE COMPANY HAS BEEN TAKEN OVER BY THE FIRM AS A GOING CONCERN. ACCORDING TO ASSESSEE REGARDING THE LEGAL ISSUE RAISED ARE DEVOID OF MERITS AND NEED TO BE DISMISSED. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PREPARED HIS GROUNDS ON MERIT AND HENCE THE SAME HAVE TO BE DISMISSED. IN HIS REJOINDER THE LD. A.R CITED CASE LAWS TO BUTTRESS HIS ARGUMENTS THE PAPER BOOK CONTAINING CASE LAWS/JUDGMENTS AND CONTENDED THAT THE ASSESSEE IS ENTITLED TO LEGAL ISSUE AT ANY STAGE OF THE PROCEEDINGS INCLUDING AT APPELLATE S TRIBUNAL AS HELD BY THE HONBLE SUPREME COURT IN NTPC VS. CIT 229 ITR 383 (SC) IF THE FACTS ARE ON RECORD AND NO INVESTIGATION INTO FACTS ARE REQUIRED. OMNIBUS GROUND CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT ATED BY THE ITAT. HE SUBMITTED THAT NOTICE WAS ISSUED ON NON PARTY AND THAT THE NOTICE HAS NOT BEEN SERVED AS PER THE REQUIREMENTS OF LAW AND HENCE THE CONSEQUENT ORDER PASSED U/S 144/147 WAS BAD IN LAW. THE LD. CIT, DR AT THIS STAGE SUBM ITTED THAT IF THE ASSESSEE IS DISPUTING THE VALIDITY OF THE SERVICE OF THE NOTICE I.E. THE NOTICE IS SERVED ON SOME EXECUTIVE OF THE COMPANY AND NOT ON ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. SATISFACTION BY SAYING YES I AM THE LD. CIT DR SUBMITTED THAT THE REASONS RECORDED AND SINCE HE WAS FULLY SATISFIED BY THE ACTION 11 U/S 147/148 OF THE THEREFORE THE REQUIREMENT OF LAW HAS BEEN FULLY SATISFIED. THE LD. CIT DR ARGUED THAT IN THIS CASE, IT CANNOT BE SAID THAT THERE WAS NON- REOPEN THE ASSESSMENT U/S THE ACT. THEREFORE, ACCORDING TO HIM, THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTNERSHIP FIRM WAS 189 OF THE ACT WILL APPLY AND THEREFORE, HAVE BEEN ISSUED TO THE PARTNERS OF THE DISSOLVED FIRM; AND SINCE IN THIS THE PARTNERS MAKES THE ACTION OF AO ILLEGAL, THE LD. IN RESPECT OF FIRM WHICH IS DISSOLVED OR NOT APPLICABLE IN THE FACTS OF THIS CASE, SINCE THE TO LD. CITDR, THE LEGAL ISSUE RAISED ARE DEVOID OF MERITS AND NEED TO BE DISMISSED. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PREPARED HIS GROUNDS ON MERIT AND BUTTRESS HIS ARGUMENTS TOOK US THROUGH THE PAPER BOOK CONTAINING CASE LAWS/JUDGMENTS AND CONTENDED THAT THE ASSESSEE IS ENTITLED TO LEGAL ISSUE AT ANY STAGE OF THE PROCEEDINGS INCLUDING AT APPELLATE PROCEEDINGS EVEN HONBLE SUPREME COURT IN NTPC VS. CIT 229 ITR 383 (SC) IF THE FACTS ARE ON RECORD AND NO INVESTIGATION INTO FACTS ARE REQUIRED. OMNIBUS GROUND CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT THAT NOTICE WAS ISSUED ON NON -EXISTENT PARTY AND THAT THE NOTICE HAS NOT BEEN SERVED AS PER THE REQUIREMENTS OF LAW AND HENCE THE ITTED THAT IF THE ASSESSEE IS DISPUTING THE VALIDITY OF THE SERVICE OF THE NOTICE I.E. THE NOTICE IS SERVED ON SOME EXECUTIVE OF THE COMPANY AND NOT ON THE ERSTWHILE PARTNERS OF THE FIRM, THEN THE DEFECT IF ANY IS COVERED U/S. 292BB OF THE ACT. HE ARGUED THAT THE ASSESSEE IS NOT CLEAR AS TO WHETHER ITS CASE IS THAT, THE NOTICE ITSELF IS DEFECTIVE OR WHETHER THE SERVICE OF THE NOTICE IS DEFECTIVE. 11. W E HAVE HEARD RIVAL CONTENTIONS. CIRCUMSTANCES OF THE CASE AND O AND THE ORDERS OF THE AUTHORITIES BELOW, WE HOLD AS FOLLOWS: 12. THE ISSUE OF REOPENING OF ASSESSMENT IS A LEGAL ISSUE. THIS IS A JURISDICTIONAL GROUND AND SUCH A GROUND CAN BE RAISED AND ARGUED FACTS ARE ON RECORD. HENCE, WE ARE BOUND TO CONSIDER UNDER LAW, THE ARGUMENT OF THE ASSESSEE CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENTS ON VARIOUS GROUNDS. 13. THE UNDISPUTED FACTS OF THE PRESENT CASE 30/03/2017 HAD BEEN ISSUE D IN THE NAME OF THE ERSTWHILE F ON THAT DATE. IT IS ALSO NOTED THAT, THE AO WAS AWARE ABOUT THIS FACT IN AS MUCH AS IN THE EARLIER NOTICE DATED 21/03/ 2014 ISSUED U/S 148 OF THE ACT FOR THIS SAME YEAR, THE AO HAD RECOGNIZED M/S EMTA COAL LTD AS THE SUCCESSOR OF THE FIRM. LD. CIT, DR IN SUPPORT OF THE ORDER OF THE LOWER AUTHORITIES, IS IDENTICAL TO THE ARGUMENT TA BY THE REVENUE BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS LIMITED REPORTED IN 416 ITR 613 HOSPITALITY LTD. VS. ASST. CIT ARE AS FOLLOWS: 17. MRZOHEB HOSSAIN, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT SUBMITTED THAT: (I) THE HIGH COURT WAS NOT JUSTIFIED IN QUASHING THE FINAL ASSESSMENT ORDER UNDER SECTION 143 (3) ONLY ON THE GROUND THAT THE AMALGAMATING COMPANY, WHICH WAS NOT IN EXISTENCE, IGNORING THE FACT THAT THE NAMES OF BOTH THE AMALGAMATED COMPANY AND THE AMALGAMATING COMPANY WERE MENTIONED IN THE ASSESSMENT ORDER; (II) EVEN ON THE HYPOTHESIS TH THE AMALGAMATING COMPANY, IT WOULD AMOUNT TO A 'MISTAKE, DEFECT OR OMISSION' WHICH IS CURABLE UNDER SECTION 292B WHEN THE ASSESSMENT IS, 'IN SUBSTANCE AND EFFECT, IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE' OF THE ACT; 10 THE ERSTWHILE PARTNERS OF THE FIRM, THEN THE DEFECT IF ANY IS COVERED U/S. 292BB OF THE ACT. HE THAT THE ASSESSEE IS NOT CLEAR AS TO WHETHER ITS CASE IS THAT, THE NOTICE ITSELF IS DEFECTIVE OR WHETHER THE SERVICE OF THE NOTICE IS DEFECTIVE. E HAVE HEARD RIVAL CONTENTIONS. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND O N PERUSAL OF THE PAPERS ON RECORD AS WELL AS CASE LAWS CITED AND THE ORDERS OF THE AUTHORITIES BELOW, WE HOLD AS FOLLOWS: THE ISSUE OF REOPENING OF ASSESSMENT IS A LEGAL ISSUE. THIS IS A JURISDICTIONAL GROUND AND SUCH A GROUND CAN BE RAISED AND ARGUED AT ANY STAGE OF ASSESSMENT PROCEEDINGS, IF THE FACTS ARE ON RECORD. HENCE, WE ARE BOUND TO CONSIDER UNDER LAW, THE ARGUMENT OF THE ASSESSEE CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENTS ON VARIOUS GROUNDS. THE UNDISPUTED FACTS OF THE PRESENT CASE ARE THAT, THE NOTICE U/S 148 OF THE ACT DATED D IN THE NAME OF THE ERSTWHILE F IRM WHICH WAS NOT IN EXISTENCE AS ON THAT DATE. IT IS ALSO NOTED THAT, THE AO WAS AWARE ABOUT THIS FACT IN AS MUCH AS IN THE EARLIER 2014 ISSUED U/S 148 OF THE ACT FOR THIS SAME YEAR, THE AO HAD RECOGNIZED M/S EMTA COAL LTD AS THE SUCCESSOR OF THE FIRM. WE NOTE THAT THE ARGUMENT PUT FORTH BY THE LD. CIT, DR IN SUPPORT OF THE ORDER OF THE LOWER AUTHORITIES, IS IDENTICAL TO THE ARGUMENT TA BY THE REVENUE BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS MARUTI SUZUKI INDIA LIMITED REPORTED IN 416 ITR 613 WHEREIN THE CASE LAW CITED BY LD CIT DR IN HOSPITALITY LTD. VS. ASST. CIT (SUPRA) WAS CONSIDERED AND THE CONTENTION HOSSAIN, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT SUBMITTED (I) THE HIGH COURT WAS NOT JUSTIFIED IN QUASHING THE FINAL ASSESSMENT ORDER UNDER SECTION 143 (3) ONLY ON THE GROUND THAT THE ASSESSMENT WAS FRAMED IN THE NAME OF THE AMALGAMATING COMPANY, WHICH WAS NOT IN EXISTENCE, IGNORING THE FACT THAT THE NAMES OF BOTH THE AMALGAMATED COMPANY AND THE AMALGAMATING COMPANY WERE MENTIONED IN THE (II) EVEN ON THE HYPOTHESIS TH AT THE ASSESSMENT ORDER WAS FRAMED INCORRECTLY IN THE NAME OF THE AMALGAMATING COMPANY, IT WOULD AMOUNT TO A 'MISTAKE, DEFECT OR OMISSION' WHICH IS CURABLE UNDER SECTION 292B WHEN THE ASSESSMENT IS, 'IN SUBSTANCE AND EFFECT, IN CONFORMITY TO THE INTENT AND PURPOSE' OF THE ACT; ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. THE ERSTWHILE PARTNERS OF THE FIRM, THEN THE DEFECT IF ANY IS COVERED U/S. 292BB OF THE ACT. HE THAT THE ASSESSEE IS NOT CLEAR AS TO WHETHER ITS CASE IS THAT, THE NOTICE ITSELF IS DEFECTIVE ON A CAREFUL CONSIDERATION OF THE FACTS AND N PERUSAL OF THE PAPERS ON RECORD AS WELL AS CASE LAWS CITED THE ISSUE OF REOPENING OF ASSESSMENT IS A LEGAL ISSUE. THIS IS A JURISDICTIONAL GROUND AT ANY STAGE OF ASSESSMENT PROCEEDINGS, IF THE FACTS ARE ON RECORD. HENCE, WE ARE BOUND TO CONSIDER UNDER LAW, THE ARGUMENT OF THE ASSESSEE ARE THAT, THE NOTICE U/S 148 OF THE ACT DATED IRM WHICH WAS NOT IN EXISTENCE AS ON THAT DATE. IT IS ALSO NOTED THAT, THE AO WAS AWARE ABOUT THIS FACT IN AS MUCH AS IN THE EARLIER 2014 ISSUED U/S 148 OF THE ACT FOR THIS SAME YEAR, THE AO HAD RECOGNIZED WE NOTE THAT THE ARGUMENT PUT FORTH BY THE LD. CIT, DR IN SUPPORT OF THE ORDER OF THE LOWER AUTHORITIES, IS IDENTICAL TO THE ARGUMENT TA KEN MARUTI SUZUKI INDIA WHEREIN THE CASE LAW CITED BY LD CIT DR IN M/S. SKYLIGHT THE CONTENTION RAISED BY REVENUE HOSSAIN, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT SUBMITTED (I) THE HIGH COURT WAS NOT JUSTIFIED IN QUASHING THE FINAL ASSESSMENT ORDER UNDER SECTION ASSESSMENT WAS FRAMED IN THE NAME OF THE AMALGAMATING COMPANY, WHICH WAS NOT IN EXISTENCE, IGNORING THE FACT THAT THE NAMES OF BOTH THE AMALGAMATED COMPANY AND THE AMALGAMATING COMPANY WERE MENTIONED IN THE AT THE ASSESSMENT ORDER WAS FRAMED INCORRECTLY IN THE NAME OF THE AMALGAMATING COMPANY, IT WOULD AMOUNT TO A 'MISTAKE, DEFECT OR OMISSION' WHICH IS CURABLE UNDER SECTION 292B WHEN THE ASSESSMENT IS, 'IN SUBSTANCE AND EFFECT, IN CONFORMITY (III) DURING THE ASSESSMENT PROCEEDINGS AND THE SUBSEQUENT PROCEEDINGS IN APPEAL, THE AMALGAMATING COMPANY WAS DULY REPRESENTED BY THE AMALGAMATED COMPANY. NO PREJUDICE WAS CAUSED TO ANY OF THE PARTIES BY THE ASSESS ASSESSMENT ORDER INVALID ON A 'MERE TECHNICALITY' WOULD BE INCORRECT IN LAW. THERE WAS EFFECTIVE PARTICIPATION OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS AND THERE WAS NO DOUBT IN THE MINDS OF THOSE WHO PARTICIPATED AB ASSESSMENT PROCEEDINGS TOOK PLACE;' 14. WE NOTE THE HON'BLE SUPREME COURT ANSWERING THE QUESTION AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE, HELD THAT IRRESPECTIVE OF THE FACT THAT THE FINAL ORDER CONTAINED NAMES OF THE NON- EXISTENT ENTITY AND THE SUC ACT WAS ISSUED IN THE NAME OF A NON CONSEQUENT ORDER TO BE NULLITY IN THE EYES OF LAW. THE RELEVANT SUPREME COURT, ARE AS FOLLOWS: '19. WHILE ASSESSING THE MERITS OF THE RIVAL SUBMISSIONS, IT IS NECESSARY AT THE OUTSET TO ADVERT TO CERTAIN SIGNIFICANT FACETS OF THE PRESENT CASE: (I) FIRSTLY, THE INCOME WHICH IS SOUGHT TO BE SUBJ 2012- 13 IS THE INCOME OF THE ERSTWHILE ENTITY (SPIL) PRIOR TO AMALGAMATION. THIS IS ON ACCOUNT OF A TRANSFER PRICING ADDITION OF RS. 78.97 CRORES; (II) SECONDLY, UNDER THE APPROVED SCHEME OF AMALGAMATION, THE TRANSFEREE ASSUMED THE LIABILITIES OF THE TRANSFEROR COMPANY, INCLUDING TAX LIABILITIES; (III) THIRDLY, THE CONSEQUENCE OF THE SCHEME OF AMALGAMATION APPROVED UNDER SECTION 394 OF THE COMPANIES ACT 1956 IS THAT THE AMALGAMATING COMPANY CEASED TO EXIST. IN SARASW INDUSTRIAL SYNDICATE LTD., (SUPRA) THE PRINCIPLE HAS BEEN FORMULATED BY THIS COURT IN THE FOLLOWING OBSERVATIONS: '5. GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CHANGE AND THE RIGHTS OF THE SHAREHOLDERS AND CREDITORS ARE VARIED, IT AMOUNTS TO RE SCHEME OF ARRANGEMENT. IN AMALGAMATION TWO OR MORE COMPANIES ARE FUSED INTO ONE BY MERGER OR BY TAKING OVER BY ANOTHER. RECONSTRUCTION OR 'AMALGAMATION' HAS NO PRECISE LEGAL MEANING. THE AMALGAMATION IS A BLENDING OF TWO O ONE UNDERTAKING, THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAREHOLDERS IN THE COMPANY WHICH IS TO CARRY ON THE BLENDED UNDERTAKINGS. THERE MAY BE AMALGAMATION EITHER BY THE TRANSFER OF TWO OR MORE THE TRANSFER OF ONE OR MORE UNDERTAKINGS TO AN EXISTING COMPANY. STRICTLY 'AMALGAMATION' DOES NOT COVER THE MERE ACQUISITION BY A COMPANY OF THE SHARE CAPITAL OF OTHER COMPANY WHICH REMAINS IN EXISTENCE AND CONTINUES I IS USED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISITION. SEE: HALSBURY'S LAWS OF ENGLAND (4TH EDITION VOLUME 7 PARA 1539). TWO COMPANIES MAY JOIN TO FORM A NEW COMPANY, BUT THERE MAY BE ABSORPTIO 11 (III) DURING THE ASSESSMENT PROCEEDINGS AND THE SUBSEQUENT PROCEEDINGS IN APPEAL, THE AMALGAMATING COMPANY WAS DULY REPRESENTED BY THE AMALGAMATED COMPANY. NO PREJUDICE WAS CAUSED TO ANY OF THE PARTIES BY THE ASSESS MENT ORDER AND HENCE RENDERING THE ASSESSMENT ORDER INVALID ON A 'MERE TECHNICALITY' WOULD BE INCORRECT IN LAW. THERE WAS EFFECTIVE PARTICIPATION OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS AND THERE WAS NO DOUBT IN THE MINDS OF THOSE WHO PARTICIPATED AB OUT THE ENTITY IN RELATION TO WHICH THE ASSESSMENT PROCEEDINGS TOOK PLACE;' WE NOTE THE HON'BLE SUPREME COURT ANSWERING THE QUESTION AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE, HELD THAT IRRESPECTIVE OF THE FACT THAT THE FINAL ORDER CONTAINED EXISTENT ENTITY AND THE SUC C ESSOR ASSESSEE, SINCE THE NOTICE U/S 143(2) OF THE ACT WAS ISSUED IN THE NAME OF A NON - EXISTENT ENTITY, IT RENDERED THE ENTIRE PROCEEDINGS AND CONSEQUENT ORDER TO BE NULLITY IN THE EYES OF LAW. THE RELEVANT FINDINGS OF THE HON'BLE SUPREME COURT, ARE AS FOLLOWS: '19. WHILE ASSESSING THE MERITS OF THE RIVAL SUBMISSIONS, IT IS NECESSARY AT THE OUTSET TO ADVERT TO CERTAIN SIGNIFICANT FACETS OF THE PRESENT CASE: FIRSTLY, THE INCOME WHICH IS SOUGHT TO BE SUBJ ECTED TO THE CHARGE OF TAX FOR AY 13 IS THE INCOME OF THE ERSTWHILE ENTITY (SPIL) PRIOR TO AMALGAMATION. THIS IS ON ACCOUNT OF A TRANSFER PRICING ADDITION OF RS. 78.97 CRORES; SECONDLY, UNDER THE APPROVED SCHEME OF AMALGAMATION, THE TRANSFEREE ASSUMED THE LIABILITIES OF THE TRANSFEROR COMPANY, INCLUDING TAX LIABILITIES; (III) THIRDLY, THE CONSEQUENCE OF THE SCHEME OF AMALGAMATION APPROVED UNDER SECTION 394 OF THE COMPANIES ACT 1956 IS THAT THE AMALGAMATING COMPANY CEASED TO EXIST. IN SARASW INDUSTRIAL SYNDICATE LTD., (SUPRA) THE PRINCIPLE HAS BEEN FORMULATED BY THIS COURT IN THE '5. GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CHANGE AND THE RIGHTS OF THE SHAREHOLDERS AND CREDITORS ARE VARIED, IT AMOUNTS TO RE CONSTRUCTION OR REORGANISATION OF SCHEME OF ARRANGEMENT. IN AMALGAMATION TWO OR MORE COMPANIES ARE FUSED INTO ONE BY MERGER OR BY TAKING OVER BY ANOTHER. RECONSTRUCTION OR 'AMALGAMATION' HAS NO PRECISE LEGAL MEANING. THE AMALGAMATION IS A BLENDING OF TWO O R MORE EXISTING UNDERTAKINGS INTO ONE UNDERTAKING, THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAREHOLDERS IN THE COMPANY WHICH IS TO CARRY ON THE BLENDED UNDERTAKINGS. THERE MAY BE AMALGAMATION EITHER BY THE TRANSFER OF TWO OR MORE UNDERTAKINGS TO A NEW COMPANY, OR BY THE TRANSFER OF ONE OR MORE UNDERTAKINGS TO AN EXISTING COMPANY. STRICTLY 'AMALGAMATION' DOES NOT COVER THE MERE ACQUISITION BY A COMPANY OF THE SHARE CAPITAL OF OTHER COMPANY WHICH REMAINS IN EXISTENCE AND CONTINUES I TS UNDERTAKING BUT THE CONTEXT IN WHICH THE TERM IS USED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISITION. SEE: HALSBURY'S LAWS OF ENGLAND (4TH EDITION VOLUME 7 PARA 1539). TWO COMPANIES MAY JOIN TO FORM A NEW COMPANY, BUT THERE MAY BE ABSORPTIO N OR BLENDING OF ONE BY THE OTHER, BOTH AMOUNT TO ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. (III) DURING THE ASSESSMENT PROCEEDINGS AND THE SUBSEQUENT PROCEEDINGS IN APPEAL, THE AMALGAMATING COMPANY WAS DULY REPRESENTED BY THE AMALGAMATED COMPANY. NO PREJUDICE MENT ORDER AND HENCE RENDERING THE ASSESSMENT ORDER INVALID ON A 'MERE TECHNICALITY' WOULD BE INCORRECT IN LAW. THERE WAS EFFECTIVE PARTICIPATION OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS AND THERE WAS NO OUT THE ENTITY IN RELATION TO WHICH THE WE NOTE THE HON'BLE SUPREME COURT ANSWERING THE QUESTION AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE, HELD THAT IRRESPECTIVE OF THE FACT THAT THE FINAL ORDER CONTAINED THE ESSOR ASSESSEE, SINCE THE NOTICE U/S 143(2) OF THE EXISTENT ENTITY, IT RENDERED THE ENTIRE PROCEEDINGS AND FINDINGS OF THE HON'BLE '19. WHILE ASSESSING THE MERITS OF THE RIVAL SUBMISSIONS, IT IS NECESSARY AT THE OUTSET TO ECTED TO THE CHARGE OF TAX FOR AY 13 IS THE INCOME OF THE ERSTWHILE ENTITY (SPIL) PRIOR TO AMALGAMATION. THIS IS ON SECONDLY, UNDER THE APPROVED SCHEME OF AMALGAMATION, THE TRANSFEREE HAS ASSUMED THE LIABILITIES OF THE TRANSFEROR COMPANY, INCLUDING TAX LIABILITIES; (III) THIRDLY, THE CONSEQUENCE OF THE SCHEME OF AMALGAMATION APPROVED UNDER SECTION 394 OF THE COMPANIES ACT 1956 IS THAT THE AMALGAMATING COMPANY CEASED TO EXIST. IN SARASW ATI INDUSTRIAL SYNDICATE LTD., (SUPRA) THE PRINCIPLE HAS BEEN FORMULATED BY THIS COURT IN THE '5. GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CHANGE AND THE RIGHTS OF THE CONSTRUCTION OR REORGANISATION OF SCHEME OF ARRANGEMENT. IN AMALGAMATION TWO OR MORE COMPANIES ARE FUSED INTO ONE BY MERGER OR BY TAKING OVER BY ANOTHER. RECONSTRUCTION OR 'AMALGAMATION' HAS NO PRECISE R MORE EXISTING UNDERTAKINGS INTO ONE UNDERTAKING, THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAREHOLDERS IN THE COMPANY WHICH IS TO CARRY ON THE BLENDED UNDERTAKINGS. THERE MAY BE UNDERTAKINGS TO A NEW COMPANY, OR BY THE TRANSFER OF ONE OR MORE UNDERTAKINGS TO AN EXISTING COMPANY. STRICTLY 'AMALGAMATION' DOES NOT COVER THE MERE ACQUISITION BY A COMPANY OF THE SHARE CAPITAL OF OTHER COMPANY TS UNDERTAKING BUT THE CONTEXT IN WHICH THE TERM IS USED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISITION. SEE: HALSBURY'S LAWS OF ENGLAND (4TH EDITION VOLUME 7 PARA 1539). TWO COMPANIES MAY JOIN TO FORM A NEW N OR BLENDING OF ONE BY THE OTHER, BOTH AMOUNT TO AMALGAMATION. WHEN TWO COMPANIES ARE MERGED AND ARE SO JOINED, AS TO FORM A THIRD COMPANY OR ONE IS ABSORBED INTO ONE OR BLENDED WITH ANOTHER, THE AMALGAMATING COMPANY LOSES ITS ENTITY.' (IV) FOURTHLY, UP ON THE AMALGAMATING COMPANY CEASING TO EXIST, IT CANNOT BE REGARDED AS A PERSON UNDER SECTION 2(31) OF THE ACT 1961 AGAINST WHOM ASSESSMENT PROCEEDINGS CAN BE INITIATED OR AN ORDER OF ASSESSMENT PASSED; (V) FIFTHLY, A NOTICE UNDER SECTION 143 (2) WAS ISS AMALGAMATING COMPANY, SPIL, WHICH WAS FOLLOWED BY A NOTICE TO IT UNDER SECTION 142(1); (VI) SIXTHLY, PRIOR TO THE DATE ON WHICH THE JURISDICTIONAL NOTICE UNDER SECTION 143 (2) WAS ISSUED, THE SCHEME OF AMALGAMATION HAD BEE HIGH COURT OF DELHI UNDER THE COMPANIES ACT 1956 WITH EFFECT FROM 1 APRIL 2012; (VII) SEVENTHLY, THE ASSESSING OFFICER ASSUMED JURISDICTION TO MAKE AN ASSESSMENT IN PURSUANCE OF THE NOTICE UNDER SECTION 143 (2). THE NO AMALGAMATING COMPANY IN SPITE OF THE FACT THAT ON 2 APRIL 2013, THE AMALGAMATED COMPANY MSIL HAD ADDRESSED A COMMUNICATION TO THE ASSESSING OFFICER INTIMATING THE FACT OF AMALGAMATION. IN THE ABOVE CONSPECTUS OF THE FACTS PROCEEDINGS AGAINST AN ENTITY, WHICH HAD CEASED TO EXIST WAS VOID AB INITIO GIVEN BY US] 15. IT IS NOTED THAT, IN THIS JUDGMENT RENDERED BY THEM EARLIER (SUPRA), CITED BY THE LD. CIT, DR. NOTICE U/S 143(2) IN THE NAME OF A NON NOT BE CURED. WE ARE THUS BOUND TO FOLLOW THE LATER JUDGMENT OF THE HONBLE SUPREME COURT. 16. IT IS NOTED THAT, THIS IDENTICAL DELHI HIGH COURT IN THE CASE OF SAVITA KAPILA VS ACIT (426 ITR 502) WHEREIN THE QUE BEFORE THE HIGH COURT WAS, WHETHER THE ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE NAME OF A NON- EXISTENT PERSON WAS BAD IN LAW OR WAS IT A CURABLE DEFECT U/S 292B OF THE ACT. IN THIS JUDGMENT, THE HIGH COURT AFTER TAKING DUE NOTE OF THE JUDGMENTS R APEX COURT IN THE CASES OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA) AND SUZUKI INDIA LIMITED (SUPRA) , ANSWERED THE AFORESAID QUESTION IN FAVOUR OF THE ASSESSEE. THE FACTS AS NOTED BY THE HIGH COURT ARE AS FOLLOWS: 2. THE RELEVANT FACTS OF THE PRESENT CASE ARE THAT AN INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER THAT IN FINANCIAL YEAR 2011 PAUL KAPILA HAD CASH DEPOSITS OF RUPEES TEN LAKHS (RS. 10,00,000/ ACCOUNT, TIME DEPOSITS OF RUPEES ELEVEN LAKHS FIVE THOUSAND FIVE HUNDRED EIGHTY SIX 12 AMALGAMATION. WHEN TWO COMPANIES ARE MERGED AND ARE SO JOINED, AS TO FORM A THIRD COMPANY OR ONE IS ABSORBED INTO ONE OR BLENDED WITH ANOTHER, THE AMALGAMATING COMPANY ON THE AMALGAMATING COMPANY CEASING TO EXIST, IT CANNOT BE REGARDED AS A PERSON UNDER SECTION 2(31) OF THE ACT 1961 AGAINST WHOM ASSESSMENT PROCEEDINGS CAN BE INITIATED OR AN ORDER OF ASSESSMENT PASSED; FIFTHLY, A NOTICE UNDER SECTION 143 (2) WAS ISS UED ON 26 SEPTEMBER 2013 TO THE AMALGAMATING COMPANY, SPIL, WHICH WAS FOLLOWED BY A NOTICE TO IT UNDER SECTION 142(1); SIXTHLY, PRIOR TO THE DATE ON WHICH THE JURISDICTIONAL NOTICE UNDER SECTION 143 (2) WAS ISSUED, THE SCHEME OF AMALGAMATION HAD BEE N APPROVED ON 29 JANUARY 2013 BY THE HIGH COURT OF DELHI UNDER THE COMPANIES ACT 1956 WITH EFFECT FROM 1 APRIL 2012; SEVENTHLY, THE ASSESSING OFFICER ASSUMED JURISDICTION TO MAKE AN ASSESSMENT IN PURSUANCE OF THE NOTICE UNDER SECTION 143 (2). THE NO TICE WAS ISSUED IN THE NAME OF THE AMALGAMATING COMPANY IN SPITE OF THE FACT THAT ON 2 APRIL 2013, THE AMALGAMATED COMPANY MSIL HAD ADDRESSED A COMMUNICATION TO THE ASSESSING OFFICER INTIMATING THE FACT OF AMALGAMATION. IN THE ABOVE CONSPECTUS OF THE FACTS , THE INITIATION OF ASSESSMENT PROCEEDINGS AGAINST AN ENTITY, WHICH HAD CEASED TO EXIST WAS VOID AB INITIO LATER JUDGMENT, THE HONBLE SUPREME COURT HAD CONSIDERED THE EARLIER IN THE CASE OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA), CITED BY THE LD. CIT, DR. ACCORDINGLY, THE HONBLE APEX COURT HELD THAT ISSUANCE OF NOTICE U/S 143(2) IN THE NAME OF A NON - EXISTENT PERSON WAS A JURISDICTIONAL DEFECT WHICH COULD WE ARE THUS BOUND TO FOLLOW THE LATER JUDGMENT OF THE HONBLE SUPREME COURT. IT IS NOTED THAT, THIS IDENTICAL LEGAL ISSUE CAME UP FOR CONSIDERATION BEFORE THE HONBLE DELHI HIGH COURT IN THE CASE OF SAVITA KAPILA VS ACIT (426 ITR 502) WHEREIN THE QUE BEFORE THE HIGH COURT WAS, WHETHER THE ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE NAME OF A EXISTENT PERSON WAS BAD IN LAW OR WAS IT A CURABLE DEFECT U/S 292B OF THE ACT. IN THIS JUDGMENT, THE HIGH COURT AFTER TAKING DUE NOTE OF THE JUDGMENTS R ENDERED BY THE HONBLE APEX COURT IN THE CASES OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA) AND , ANSWERED THE AFORESAID QUESTION IN FAVOUR OF THE ASSESSEE. THE FACTS AS NOTED BY THE HIGH COURT ARE AS FOLLOWS: THE RELEVANT FACTS OF THE PRESENT CASE ARE THAT AN INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER THAT IN FINANCIAL YEAR 2011 -12, THE A SSESSEE HAD CASH DEPOSITS OF RUPEES TEN LAKHS (RS. 10,00,000/ ACCOUNT, TIME DEPOSITS OF RUPEES ELEVEN LAKHS FIVE THOUSAND FIVE HUNDRED EIGHTY SIX ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. AMALGAMATION. WHEN TWO COMPANIES ARE MERGED AND ARE SO JOINED, AS TO FORM A THIRD COMPANY OR ONE IS ABSORBED INTO ONE OR BLENDED WITH ANOTHER, THE AMALGAMATING COMPANY ON THE AMALGAMATING COMPANY CEASING TO EXIST, IT CANNOT BE REGARDED AS A PERSON UNDER SECTION 2(31) OF THE ACT 1961 AGAINST WHOM ASSESSMENT PROCEEDINGS CAN UED ON 26 SEPTEMBER 2013 TO THE AMALGAMATING COMPANY, SPIL, WHICH WAS FOLLOWED BY A NOTICE TO IT UNDER SECTION 142(1); SIXTHLY, PRIOR TO THE DATE ON WHICH THE JURISDICTIONAL NOTICE UNDER SECTION 143 (2) N APPROVED ON 29 JANUARY 2013 BY THE HIGH COURT OF DELHI UNDER THE COMPANIES ACT 1956 WITH EFFECT FROM 1 APRIL 2012; SEVENTHLY, THE ASSESSING OFFICER ASSUMED JURISDICTION TO MAKE AN ASSESSMENT IN TICE WAS ISSUED IN THE NAME OF THE AMALGAMATING COMPANY IN SPITE OF THE FACT THAT ON 2 APRIL 2013, THE AMALGAMATED COMPANY MSIL HAD ADDRESSED A COMMUNICATION TO THE ASSESSING OFFICER INTIMATING THE FACT OF , THE INITIATION OF ASSESSMENT PROCEEDINGS AGAINST AN ENTITY, WHICH HAD CEASED TO EXIST WAS VOID AB INITIO .[EMPHASIS LATER JUDGMENT, THE HONBLE SUPREME COURT HAD CONSIDERED THE IN THE CASE OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT ACCORDINGLY, THE HONBLE APEX COURT HELD THAT ISSUANCE OF EXISTENT PERSON WAS A JURISDICTIONAL DEFECT WHICH COULD WE ARE THUS BOUND TO FOLLOW THE LATER JUDGMENT OF THE HONBLE SUPREME COURT. ISSUE CAME UP FOR CONSIDERATION BEFORE THE HONBLE DELHI HIGH COURT IN THE CASE OF SAVITA KAPILA VS ACIT (426 ITR 502) WHEREIN THE QUE STION BEFORE THE HIGH COURT WAS, WHETHER THE ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE NAME OF A EXISTENT PERSON WAS BAD IN LAW OR WAS IT A CURABLE DEFECT U/S 292B OF THE ACT. IN THIS ENDERED BY THE HONBLE APEX COURT IN THE CASES OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA) AND CIT VS MARUTI , ANSWERED THE AFORESAID QUESTION IN FAVOUR OF THE ASSESSEE. THE THE RELEVANT FACTS OF THE PRESENT CASE ARE THAT AN INFORMATION WAS RECEIVED BY THE SSESSEE -SHRIMOHINDER HAD CASH DEPOSITS OF RUPEES TEN LAKHS (RS. 10,00,000/ -) IN HIS BANK ACCOUNT, TIME DEPOSITS OF RUPEES ELEVEN LAKHS FIVE THOUSAND FIVE HUNDRED EIGHTY SIX (RS. 11,05,586/- ) AND RECEIPTS OF RUPEES TWENTY FIVE THOUSAND FOUR HUND (RS. 25,414/- ) AS PER FORM 26AS. IT WAS NOTICED THAT NO RETURN HAD BEEN FILED AND THE SOURCE OF THE AFORESAID DEPOSITS AND RECEIPTS REMAINED UNEXPLAINED AND HAD ESCAPED ASSESSMENT. ACCORDINGLY, THE CASE OF MR. MOHINDER PAUL SECTION 147/148 OF THE ACT 1961, AFTER RECORDING OF REASONS AND APPROVAL OF PCIT DELHI ON 28TH MARCH, 2019. 3. HOWEVER, LATE SHRIMOHINDER PAUL ASSESSEE') HAD ALREADY EXPIRED ON 21ST DECEMBER, 2018. TH SURVIVED BY TWO SONS AND TWO DAUGHTERS. 4. NOTICE DATED 31ST MARCH, 2019 UNDER SECTION 148 OF THE ACT 1961 FOR A.Y. 2012 WAS ISSUED, I.E. ON THE LAST DATE OF LIMITATION, IN THE NAME OF DECEASED ASSESSEE SHRIMOHINDER PAUL KAPILA KNOWN TO THE INCOME- TAX DEPARTMENT 1, DWARKA, NEW DELHI 110075. THE IMPUGNED NOTICE COULD NOT AND WAS NEVER SERVED UPON LATE SHRIMOHINDER PAUL REFERRED TO AS 'ASSESSING OFFICER') ISSUED NOTICES DATED 22ND AUGUST, 2019, 27TH AUGUST, 2019 & 18TH SEPTEMBER, 2019 TO THE DECEASED ASSESSEE. THE SAID NOTICES WERE ALSO NEITHER SERVED UPON THE ASSESSEE 17. WE NOTE THAT, ON THE ABOVE FACTS, THE CONTENTION RAISED BY THE REVENUE BEFORE THE HONBLE HIGH COURT WERE SIMILAR TO THAT OF THE LD. CIT, DR IN THE PRESENT CASE. RELYING UPON THE PROVISIONS OF SECTION 292B OF THE ACT A HOSPITALITY LTD. VS. ASST. CIT (SUPRA), THE REVENUE CONTENDED THAT THE MISTAKE OF ISSUANCE OF NOTICE IN THE NAME OF NON- EXISTENT PERSON WAS A CURABLE DEFECT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT EXTRACT S OF THE REVENUES SUBMISSIONS ARE SET OUT BELOW, 17. MR. ZOHEB HUSSAIN FURTHER SUBMITTED THAT THE FACTS OF THE PRESENT CASE WERE DISTINGUISHABLE FROM THE CASES RELIED UPON BY THE PETITIONER WHEREIN COURTS HAD QUASHED NOTICES SENT TO NON- EXISTENT ENTITIES EXISTENCE WAS AVAILABLE WITH THE ASSESSING OFFICER PRIOR TO THE ISSUANCE OF NOTICE. IN SUPPORT OF HIS SUBMISSION, HE RELIED UPON THE DECISION IN THE CASE OF PR. COMMISSIONER OF INCOME- TAX V. MARUTI SUZUKI SUPREME COURT HAD RENDERED THE PROCEEDINGS NULL AND VOID ON THE BASIS OF THE FOLLOWING OBSERVATION 'IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY OF AMALGAMATION, THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME'. 18. HE ALSO RELIED UPON THE JUDGMENT OF THE HIGH COURT OF JHARKHAND IN THE CASE OF SMT. SUDHA PRASAD V. CHIEF COMMISSIONER OF INCOME TAX [2005] 275 ITR 135 (JHARKHAND) WHEREIN, ACCORDING TO HIM UNDER SIMILAR CIRCUMSTANCES, THE COURT HAD SET ASIDE THE PROCEEDINGS FOR DE NOVO ASSESSMENTS INSTEAD OF QUASHING THE SAME, ON ACCOUNT OF REVENUE'S BONA FID E MISTAKE SINCE NOTICE WAS ISSUED TO A DEAD PERSON OUT OF IGNORANCE OF ASSESSEE'S DEATH, WHICH WAS NOT INTIMATED TO THE REVENUE. 13 ) AND RECEIPTS OF RUPEES TWENTY FIVE THOUSAND FOUR HUND ) AS PER FORM 26AS. IT WAS NOTICED THAT NO RETURN HAD BEEN FILED AND THE SOURCE OF THE AFORESAID DEPOSITS AND RECEIPTS REMAINED UNEXPLAINED AND HAD ESCAPED ASSESSMENT. ACCORDINGLY, THE CASE OF MR. MOHINDER PAUL KAPILA WAS SELECTED SECTION 147/148 OF THE ACT 1961, AFTER RECORDING OF REASONS AND APPROVAL OF PCIT DELHI ON 28TH MARCH, 2019. HOWEVER, LATE SHRIMOHINDER PAUL KAPILA (HEREINAFTER REFERRED TO AS 'DECEASED ASSESSEE') HAD ALREADY EXPIRED ON 21ST DECEMBER, 2018. TH E DECEASED ASSESSEE IS SURVIVED BY TWO SONS AND TWO DAUGHTERS. NOTICE DATED 31ST MARCH, 2019 UNDER SECTION 148 OF THE ACT 1961 FOR A.Y. 2012 ON THE LAST DATE OF LIMITATION, IN THE NAME OF DECEASED ASSESSEE KAPILA WITH PAN: ASXPK1666P AND SENT AT HIS LAST KNOWN ADDRESS TAX DEPARTMENT I.E. FLAT NO. 286, 1ST FLOOR, D FLATS, SECTOR 9, PKT 1, DWARKA, NEW DELHI 110075. THE IMPUGNED NOTICE COULD NOT AND WAS NEVER SERVED UPON LATE SHRIMOHINDER PAUL KAPI LA. THEREAFTER ACIT, CIRCLE 43(1), DELHI (HEREINAFTER REFERRED TO AS 'ASSESSING OFFICER') ISSUED NOTICES DATED 22ND AUGUST, 2019, 27TH AUGUST, 2019 & 18TH SEPTEMBER, 2019 TO THE DECEASED ASSESSEE. THE SAID NOTICES WERE ALSO NEITHER SERVED UPON THE ASSESSEE NOR UPON ANY OF HIS LEGAL HEIRS. WE NOTE THAT, ON THE ABOVE FACTS, THE CONTENTION RAISED BY THE REVENUE BEFORE THE HONBLE HIGH COURT WERE SIMILAR TO THAT OF THE LD. CIT, DR IN THE PRESENT CASE. RELYING UPON THE PROVISIONS OF SECTION 292B OF THE ACT A ND THE DECISION RENDERED IN THE CASE OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA), THE REVENUE CONTENDED THAT THE MISTAKE OF ISSUANCE OF EXISTENT PERSON WAS A CURABLE DEFECT. FOR THE SAKE OF CONVENIENCE, S OF THE REVENUES SUBMISSIONS ARE SET OUT BELOW, 17. MR. ZOHEB HUSSAIN FURTHER SUBMITTED THAT THE FACTS OF THE PRESENT CASE WERE DISTINGUISHABLE FROM THE CASES RELIED UPON BY THE PETITIONER WHEREIN COURTS HAD QUASHED EXISTENT ENTITIES , AS IN ALL SUCH CASES THE INFORMATION OF SUCH NON EXISTENCE WAS AVAILABLE WITH THE ASSESSING OFFICER PRIOR TO THE ISSUANCE OF NOTICE. IN SUPPORT OF HIS SUBMISSION, HE RELIED UPON THE DECISION IN THE CASE OF PR. COMMISSIONER OF TAX V. MARUTI SUZUKI INDIA LIMITED [2019] 416 ITR 613 (SC), WHEREIN THE SUPREME COURT HAD RENDERED THE PROCEEDINGS NULL AND VOID ON THE BASIS OF THE FOLLOWING OBSERVATION 'IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RESULT OF THE APPROVED SCHEME OF AMALGAMATION, THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME'. 18. HE ALSO RELIED UPON THE JUDGMENT OF THE HIGH COURT OF JHARKHAND IN THE CASE OF SMT. PRASAD V. CHIEF COMMISSIONER OF INCOME TAX [2005] 275 ITR 135 (JHARKHAND) WHEREIN, ACCORDING TO HIM UNDER SIMILAR CIRCUMSTANCES, THE COURT HAD SET ASIDE THE PROCEEDINGS FOR DE NOVO ASSESSMENTS INSTEAD OF QUASHING THE SAME, ON ACCOUNT OF E MISTAKE SINCE NOTICE WAS ISSUED TO A DEAD PERSON OUT OF IGNORANCE OF ASSESSEE'S DEATH, WHICH WAS NOT INTIMATED TO THE REVENUE. ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. ) AND RECEIPTS OF RUPEES TWENTY FIVE THOUSAND FOUR HUND RED FOURTEEN ) AS PER FORM 26AS. IT WAS NOTICED THAT NO RETURN HAD BEEN FILED AND THE SOURCE OF THE AFORESAID DEPOSITS AND RECEIPTS REMAINED UNEXPLAINED AND HAD ESCAPED WAS SELECTED UNDER SECTION 147/148 OF THE ACT 1961, AFTER RECORDING OF REASONS AND APPROVAL OF PCIT -15, (HEREINAFTER REFERRED TO AS 'DECEASED - E DECEASED ASSESSEE IS NOTICE DATED 31ST MARCH, 2019 UNDER SECTION 148 OF THE ACT 1961 FOR A.Y. 2012 -2013 ON THE LAST DATE OF LIMITATION, IN THE NAME OF DECEASED ASSESSEE WITH PAN: ASXPK1666P AND SENT AT HIS LAST KNOWN ADDRESS FLAT NO. 286, 1ST FLOOR, D FLATS, SECTOR 9, PKT - 1, DWARKA, NEW DELHI 110075. THE IMPUGNED NOTICE COULD NOT AND WAS NEVER SERVED LA. THEREAFTER ACIT, CIRCLE 43(1), DELHI (HEREINAFTER REFERRED TO AS 'ASSESSING OFFICER') ISSUED NOTICES DATED 22ND AUGUST, 2019, 27TH AUGUST, 2019 & 18TH SEPTEMBER, 2019 TO THE DECEASED ASSESSEE. THE SAID NOTICES WERE ALSO WE NOTE THAT, ON THE ABOVE FACTS, THE CONTENTION RAISED BY THE REVENUE BEFORE THE HONBLE HIGH COURT WERE SIMILAR TO THAT OF THE LD. CIT, DR IN THE PRESENT CASE. RELYING UPON ND THE DECISION RENDERED IN THE CASE OF SKYLIGHT HOSPITALITY LTD. VS. ASST. CIT (SUPRA), THE REVENUE CONTENDED THAT THE MISTAKE OF ISSUANCE OF EXISTENT PERSON WAS A CURABLE DEFECT. FOR THE SAKE OF CONVENIENCE, 17. MR. ZOHEB HUSSAIN FURTHER SUBMITTED THAT THE FACTS OF THE PRESENT CASE WERE DISTINGUISHABLE FROM THE CASES RELIED UPON BY THE PETITIONER WHEREIN COURTS HAD QUASHED , AS IN ALL SUCH CASES THE INFORMATION OF SUCH NON - EXISTENCE WAS AVAILABLE WITH THE ASSESSING OFFICER PRIOR TO THE ISSUANCE OF NOTICE. IN SUPPORT OF HIS SUBMISSION, HE RELIED UPON THE DECISION IN THE CASE OF PR. COMMISSIONER OF INDIA LIMITED [2019] 416 ITR 613 (SC), WHEREIN THE SUPREME COURT HAD RENDERED THE PROCEEDINGS NULL AND VOID ON THE BASIS OF THE FOLLOWING OBSERVATION 'IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED HAVING CEASED TO EXIST AS A RESULT OF THE APPROVED SCHEME 18. HE ALSO RELIED UPON THE JUDGMENT OF THE HIGH COURT OF JHARKHAND IN THE CASE OF SMT. PRASAD V. CHIEF COMMISSIONER OF INCOME TAX [2005] 275 ITR 135 (JHARKHAND) WHEREIN, ACCORDING TO HIM UNDER SIMILAR CIRCUMSTANCES, THE COURT HAD SET ASIDE THE PROCEEDINGS FOR DE NOVO ASSESSMENTS INSTEAD OF QUASHING THE SAME, ON ACCOUNT OF E MISTAKE SINCE NOTICE WAS ISSUED TO A DEAD PERSON OUT OF IGNORANCE OF 19. HE CONTENDED THAT THE REVENUE HAD ACTED BONA FIDE AT THE TIME OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT AS IT HAD UPON THE JUDGMENT OF THIS COURT IN SKYLIGHT HOSPITALITY LLP V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE- 28(1), NEW DELHI [2018] 405 ITR 296 (DELHI) TO SUBMIT THAT EVEN IF THERE WAS ANY DEFECT IN THE 292B OF THE ACT, 1961. 18. THE HONBLE HIGH COURT HOWEVER ANSWERED THE QUESTION IN FAVOUR OF THE ASSESSEE, BY OBSERVING AS UNDER: 32. THIS COURT IS OF THE VIEW THAT IN THE ABSENCE OF A STATUTORY CAST A DUTY UPON THE LEGAL REPRESENTATIVES TO INTIMATE THE FACTUM OF DEATH OF AN ASSESSEE TO THE INCOME TAX DEPARTMENT. AFTER ALL, THERE MAY BE CASES WHERE THE LEGAL REPRESENTATIVES ARE ESTRANGED FROM THE DECEASED ASSESSEE OR T HAVE BEQUEATHED HIS ENTIRE WEALTH TO A CHARITY. CONSEQUENTLY, WHETHER PAN RECORD WAS UPDATED OR NOT OR WHETHER THE DEPARTMENT WAS MADE AWARE BY THE LEGAL REPRESENTATIVES OR NOT IS IRRELEVANT. IN ALAMELU VEERAPPAN (SUPRA) IT HAS BEE PLACED BEFORE THIS COURT BY THE REVENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATION ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE TO IMMEDIATELY INTIMATE THE DEATH OF THE ASSESSEE OR TAKE STEPS TO CANCEL THE PA 33. THE JUDGMENT IN PR. COMMISSIONER OF INCOME (SUPRA) OFFERS NO ASSISTANCE TO THE RESPONDENTS. IN PR. COMMISSIONER OF INCOME MARUTI SUZUKI INDIA LIMITED (SUPRA) THE SUPREME COURT WAS DEALING WITH THE ACT, 1961 (SUCCESSION TO BUSINESS OTHERWISE THAN ON DEATH) WHEREIN NOTICE UNDER SECTION 143(2) OF THE ACT, 1961 WAS ISSUED TO NON DEPARTMENT BY VERY NATURE OF TRANSACTION WAS AWARE ABOUT THE AMALGAMATION. THE SAID JUDGMENT NOWHERE STATES THAT THERE IS AN OBLIGATION UPON THE LEGAL REPRESENTATIVE TO INFORM THE INCOME- TAX DEPARTMENT ABOUT THE DEATH OF THE ASSESSEE OR TO SURRENDER THE PAN OF THE DECEASED ASSESSEE. 35. THIS COURT IS OF THE OPINION THAT SERVICE OF NOTICE DOES NOT COME UNDER THE AMBIT OF MISTAKE, DEFECT OR OMISSION. CONSEQUENTLY, SECTION 292B OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE. 36. IN SKYLIGHT HOSPITALITY (SUPRA) NOTICE WAS ISS INSTEAD OF SKYLIGHT HOSPITALITY LLP. IN THAT FACTUAL CONTEXT, THIS COURT HAD OBSERVED, 'NOTICEABLY, THE APPELLANT HAVING RECEIVED THE SAID NOTICE, HAD FILED WITHOUT PREJUDICE REPLY/LETTER DATED APRIL 11, 2017. THEY HAD NAME OF THE COMPANY, WHICH HAD CEASED TO EXIST. HOWEVER, THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE, THAT THE NOTICE WAS FOR THEM. IT WAS RELIED AND DEALT WITH BY THEM.' THE OBSERVED 'IN THE PECULIAR FACTS OF THIS CASE, WE ARE CONVINCED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED UNDER SECTION 292B OF THE INCOME-TAX ACT.' 37. IN ANY EV ENT, SECTION 292B OF THE ACT, 1961 HAS BEEN HELD TO BE INAPPLICABLE VIZ NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL (SUPRA), CHANDRESHBHAI 14 19. HE CONTENDED THAT THE REVENUE HAD ACTED BONA FIDE AT THE TIME OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT AS IT HAD NO KNOWLEDGE OF THE DEATH OF THE ASSESSEE. HE RELIED UPON THE JUDGMENT OF THIS COURT IN SKYLIGHT HOSPITALITY LLP V. ASSISTANT COMMISSIONER OF 28(1), NEW DELHI [2018] 405 ITR 296 (DELHI) TO SUBMIT THAT EVEN IF THERE WAS ANY DEFECT IN THE NOTICE, IT WOULD BE A BONA FIDE CURABLE DEFECT UNDER SECTION THE HONBLE HIGH COURT HOWEVER ANSWERED THE QUESTION IN FAVOUR OF THE ASSESSEE, BY 32. THIS COURT IS OF THE VIEW THAT IN THE ABSENCE OF A STATUTORY PROVISION IT IS DIFFICULT TO CAST A DUTY UPON THE LEGAL REPRESENTATIVES TO INTIMATE THE FACTUM OF DEATH OF AN ASSESSEE TO THE INCOME TAX DEPARTMENT. AFTER ALL, THERE MAY BE CASES WHERE THE LEGAL REPRESENTATIVES ARE ESTRANGED FROM THE DECEASED ASSESSEE OR T HE DECEASED ASSESSEE MAY HAVE BEQUEATHED HIS ENTIRE WEALTH TO A CHARITY. CONSEQUENTLY, WHETHER PAN RECORD WAS UPDATED OR NOT OR WHETHER THE DEPARTMENT WAS MADE AWARE BY THE LEGAL REPRESENTATIVES OR NOT IS IRRELEVANT. IN ALAMELU VEERAPPAN (SUPRA) IT HAS BEE N HELD 'NOTHING HAS BEEN PLACED BEFORE THIS COURT BY THE REVENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATION ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE TO IMMEDIATELY INTIMATE THE DEATH OF THE ASSESSEE OR TAKE STEPS TO CANCEL THE PA N REGISTRATION.' 33. THE JUDGMENT IN PR. COMMISSIONER OF INCOME - TAX V. MARUTI SUZUKI INDIA LIMITED (SUPRA) OFFERS NO ASSISTANCE TO THE RESPONDENTS. IN PR. COMMISSIONER OF INCOME MARUTI SUZUKI INDIA LIMITED (SUPRA) THE SUPREME COURT WAS DEALING WITH THE ACT, 1961 (SUCCESSION TO BUSINESS OTHERWISE THAN ON DEATH) WHEREIN NOTICE UNDER SECTION 143(2) OF THE ACT, 1961 WAS ISSUED TO NON - EXISTING COMPANY. IN THAT CASE, DEPARTMENT BY VERY NATURE OF TRANSACTION WAS AWARE ABOUT THE AMALGAMATION. THE SAID JUDGMENT NOWHERE STATES THAT THERE IS AN OBLIGATION UPON THE LEGAL REPRESENTATIVE TAX DEPARTMENT ABOUT THE DEATH OF THE ASSESSEE OR TO SURRENDER THE PAN OF THE DECEASED ASSESSEE. 35. THIS COURT IS OF THE OPINION THAT ISSUANCE OF NOTICE UPON A DEAD PERSON AND NON SERVICE OF NOTICE DOES NOT COME UNDER THE AMBIT OF MISTAKE, DEFECT OR OMISSION. CONSEQUENTLY, SECTION 292B OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE. 36. IN SKYLIGHT HOSPITALITY (SUPRA) NOTICE WAS ISS UED TO SKYLIGHT HOSPITALITY PVT. LTD. INSTEAD OF SKYLIGHT HOSPITALITY LLP. IN THAT FACTUAL CONTEXT, THIS COURT HAD OBSERVED, 'NOTICEABLY, THE APPELLANT HAVING RECEIVED THE SAID NOTICE, HAD FILED WITHOUT PREJUDICE REPLY/LETTER DATED APRIL 11, 2017. THEY HAD OBJECTED TO THE NOTICE BEING ISSUED IN THE NAME OF THE COMPANY, WHICH HAD CEASED TO EXIST. HOWEVER, THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE, THAT THE NOTICE WAS FOR THEM. IT WAS RELIED AND DEALT WITH BY THEM.' THE SUPREME COURT WHILE DISMISSING THE SLP HAD ALSO OBSERVED 'IN THE PECULIAR FACTS OF THIS CASE, WE ARE CONVINCED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED UNDER SECTION 292B OF THE ENT, SECTION 292B OF THE ACT, 1961 HAS BEEN HELD TO BE INAPPLICABLE VIZ NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL (SUPRA), CHANDRESHBHAI ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. 19. HE CONTENDED THAT THE REVENUE HAD ACTED BONA FIDE AT THE TIME OF ISSUANCE OF NOTICE NO KNOWLEDGE OF THE DEATH OF THE ASSESSEE. HE RELIED UPON THE JUDGMENT OF THIS COURT IN SKYLIGHT HOSPITALITY LLP V. ASSISTANT COMMISSIONER OF 28(1), NEW DELHI [2018] 405 ITR 296 (DELHI) TO SUBMIT THAT EVEN IF NOTICE, IT WOULD BE A BONA FIDE CURABLE DEFECT UNDER SECTION THE HONBLE HIGH COURT HOWEVER ANSWERED THE QUESTION IN FAVOUR OF THE ASSESSEE, BY PROVISION IT IS DIFFICULT TO CAST A DUTY UPON THE LEGAL REPRESENTATIVES TO INTIMATE THE FACTUM OF DEATH OF AN ASSESSEE TO THE INCOME TAX DEPARTMENT. AFTER ALL, THERE MAY BE CASES WHERE THE LEGAL HE DECEASED ASSESSEE MAY HAVE BEQUEATHED HIS ENTIRE WEALTH TO A CHARITY. CONSEQUENTLY, WHETHER PAN RECORD WAS UPDATED OR NOT OR WHETHER THE DEPARTMENT WAS MADE AWARE BY THE LEGAL REPRESENTATIVES N HELD 'NOTHING HAS BEEN PLACED BEFORE THIS COURT BY THE REVENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATION ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE TO IMMEDIATELY INTIMATE THE TAX V. MARUTI SUZUKI INDIA LIMITED (SUPRA) OFFERS NO ASSISTANCE TO THE RESPONDENTS. IN PR. COMMISSIONER OF INCOME -TAX V. MARUTI SUZUKI INDIA LIMITED (SUPRA) THE SUPREME COURT WAS DEALING WITH SECTION 170 OF THE ACT, 1961 (SUCCESSION TO BUSINESS OTHERWISE THAN ON DEATH) WHEREIN NOTICE UNDER EXISTING COMPANY. IN THAT CASE, DEPARTMENT BY VERY NATURE OF TRANSACTION WAS AWARE ABOUT THE AMALGAMATION. HOWEVER, THE SAID JUDGMENT NOWHERE STATES THAT THERE IS AN OBLIGATION UPON THE LEGAL REPRESENTATIVE TAX DEPARTMENT ABOUT THE DEATH OF THE ASSESSEE OR TO SURRENDER THE ISSUANCE OF NOTICE UPON A DEAD PERSON AND NON - SERVICE OF NOTICE DOES NOT COME UNDER THE AMBIT OF MISTAKE, DEFECT OR OMISSION. CONSEQUENTLY, SECTION 292B OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE. UED TO SKYLIGHT HOSPITALITY PVT. LTD. INSTEAD OF SKYLIGHT HOSPITALITY LLP. IN THAT FACTUAL CONTEXT, THIS COURT HAD OBSERVED, 'NOTICEABLY, THE APPELLANT HAVING RECEIVED THE SAID NOTICE, HAD FILED WITHOUT PREJUDICE OBJECTED TO THE NOTICE BEING ISSUED IN THE NAME OF THE COMPANY, WHICH HAD CEASED TO EXIST. HOWEVER, THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE, THAT THE NOTICE WAS FOR THEM. IT WAS SUPREME COURT WHILE DISMISSING THE SLP HAD ALSO OBSERVED 'IN THE PECULIAR FACTS OF THIS CASE, WE ARE CONVINCED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED UNDER SECTION 292B OF THE ENT, SECTION 292B OF THE ACT, 1961 HAS BEEN HELD TO BE INAPPLICABLE VIZ -A-VIZ NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL (SUPRA), CHANDRESHBHAI JAYANTIBHAI PATEL (SUPRA) AND ALAMELU VEERAPPAN (SUPRA). IN ALL THE AFORESAID CASES, THE JUDGMENT O F SKYLIGHT HOSPITALITY (SUPRA) HAD BEEN CITED BY THE REVENUE. 19. GAINFUL REFERENCE MAY ALSO BE MADE IN THIS REGARD TO THE DECISION OF THE HONBLE KARANATAKA HIGH COURT IN THE CASE OF EMUDHRA LTD VS ACIT REPORTED IN 273 TAXMAN 473, WHEREIN IT WAS HELD AS UNDER: 12. IN VIEW OF THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT AT THE 'N'TH HOUR BEFORE THE LIMITATION GETTING LAPSED ON 31 BACK TO THE ASSESSING OFFICER, IT WOULD BE A FUTILE EXERCISE, SINCE THE D ISSUED UNDER SECTION 148 OF THE ACT, CANNOT BE CURED AT THIS LENGTH OF TIME. 13. THE HON'BLE APEX COURT IN THE CASE OF MARUTHI SUZUKI LTD.SUPRA, HAS CATEGORICALLY OBSERVED THUS; 'IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RESULT OF THE APPROVED SCHEME OF AMALGAMATION, THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME. THE BASIS ON WHICH JURISDICTION WAS INVOKED WAS FUNDAMENTALLY AT ODDS WITH TH AMALGAMATING ENTITY CEASES TO EXIST UPON THE APPROVED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT IN THE CIRCUMSTANCES CANNOT OPERATE AS AN ESTOPPEL AGAINST LAW. THIS POSITION NOW HOLDS THE FIELD IN ORDINATE BENCH OF TWO LEARNED JUDGES WHICH DISMISSED THE APPEAL OF THE REVENUE IN SPICE ENTERTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENTERTAINMENT HAS BEEN FOLLOWED IN THE CASE OF THE RESPONDENT WHILE DISMISSING THE 2011- 12. IN DOING SO, THIS COURT HAS RELIED ON THE DECISION IN SPICE ENTERTAINMENT.' WHILE ARRIVING AT SUCH A DECISION, THE HON'BLE APEX COURT HAS TAKEN NOTE OF SECTION 292 B OF THE ACT ALSO, WHICH IS APPOSITE TO REFER TO AND '292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISION OF THIS ACT SHA TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT, OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SU WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT.' THE JURISDICTION ASSUMED BY THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 148 OF THE ACT TO NON- EXISTING COMPANY IS SUBSTANTIVE ILLEGALITY AND NOT THE PROCEDU THE NATURE ADVERTED TO IN SECTION 292 AGAINST A NON- EXISTING COMPANY IS NOT CURABLE. ON THIS GROUND ALONE, WITHOUT ADJUDICATING UPON THE OTHER ISSUES RAISED BY THE PETITIONER INASMUCH A ASPECT, CHANGE OF OPINION, NON 15 JAYANTIBHAI PATEL (SUPRA) AND ALAMELU VEERAPPAN (SUPRA). IN ALL THE AFORESAID CASES, THE F SKYLIGHT HOSPITALITY (SUPRA) HAD BEEN CITED BY THE REVENUE. GAINFUL REFERENCE MAY ALSO BE MADE IN THIS REGARD TO THE DECISION OF THE HONBLE KARANATAKA HIGH COURT IN THE CASE OF EMUDHRA LTD VS ACIT REPORTED IN 273 TAXMAN 473, 12. IN VIEW OF THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT AT THE 'N'TH HOUR BEFORE THE LIMITATION GETTING LAPSED ON 31 -3- 2018, EVEN IF THE MATTER IS NOW REMANDED BACK TO THE ASSESSING OFFICER, IT WOULD BE A FUTILE EXERCISE, SINCE THE D ISSUED UNDER SECTION 148 OF THE ACT, CANNOT BE CURED AT THIS LENGTH OF TIME. 13. THE HON'BLE APEX COURT IN THE CASE OF MARUTHI SUZUKI LTD.SUPRA, HAS CATEGORICALLY 'IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RESULT OF THE APPROVED SCHEME OF AMALGAMATION, THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME. THE BASIS ON WHICH JURISDICTION WAS INVOKED WAS FUNDAMENTALLY AT ODDS WITH TH E LEGAL PRINCIPLE THAT THE AMALGAMATING ENTITY CEASES TO EXIST UPON THE APPROVED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT IN THE CIRCUMSTANCES CANNOT OPERATE AS AN ESTOPPEL AGAINST LAW. THIS POSITION NOW HOLDS THE FIELD IN VIEW OF THE JUDGMENT OF A CO ORDINATE BENCH OF TWO LEARNED JUDGES WHICH DISMISSED THE APPEAL OF THE REVENUE IN SPICE ENTERTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENTERTAINMENT HAS BEEN FOLLOWED IN THE CASE OF THE RESPONDENT WHILE DISMISSING THE SPECIAL LEAVE PETITION FOR AY 12. IN DOING SO, THIS COURT HAS RELIED ON THE DECISION IN SPICE ENTERTAINMENT.' WHILE ARRIVING AT SUCH A DECISION, THE HON'BLE APEX COURT HAS TAKEN NOTE OF SECTION 292 B OF THE ACT ALSO, WHICH IS APPOSITE TO REFER TO AND THE SAME READS AS UNDER; '292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISION OF THIS ACT SHA LL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT, OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SU BSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT.' THE JURISDICTION ASSUMED BY THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 148 OF THE EXISTING COMPANY IS SUBSTANTIVE ILLEGALITY AND NOT THE PROCEDU THE NATURE ADVERTED TO IN SECTION 292 - B OF THE ACT. THE SUBSTANTIVE DEFECTIVE NOTICE ISSUED EXISTING COMPANY IS NOT CURABLE. ON THIS GROUND ALONE, WITHOUT ADJUDICATING UPON THE OTHER ISSUES RAISED BY THE PETITIONER INASMUCH A ASPECT, CHANGE OF OPINION, NON -EXISTENCE OF TANGIBLE MATERIAL AND NON- FAILURE ON THE PART ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. JAYANTIBHAI PATEL (SUPRA) AND ALAMELU VEERAPPAN (SUPRA). IN ALL THE AFORESAID CASES, THE GAINFUL REFERENCE MAY ALSO BE MADE IN THIS REGARD TO THE DECISION OF THE HONBLE KARANATAKA HIGH COURT IN THE CASE OF EMUDHRA LTD VS ACIT REPORTED IN 273 TAXMAN 473, 12. IN VIEW OF THE PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT AT THE 'N'TH HOUR 2018, EVEN IF THE MATTER IS NOW REMANDED BACK TO THE ASSESSING OFFICER, IT WOULD BE A FUTILE EXERCISE, SINCE THE D EFECTIVE NOTICE ISSUED UNDER SECTION 148 OF THE ACT, CANNOT BE CURED AT THIS LENGTH OF TIME. 13. THE HON'BLE APEX COURT IN THE CASE OF MARUTHI SUZUKI LTD.SUPRA, HAS CATEGORICALLY OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEASED TO EXIST AS A RESULT OF THE APPROVED SCHEME OF AMALGAMATION, THE JURISDICTIONAL NOTICE WAS ISSUED ONLY IN ITS NAME. THE BASIS ON WHICH E LEGAL PRINCIPLE THAT THE AMALGAMATING ENTITY CEASES TO EXIST UPON THE APPROVED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT IN THE CIRCUMSTANCES CANNOT OPERATE AS VIEW OF THE JUDGMENT OF A CO - ORDINATE BENCH OF TWO LEARNED JUDGES WHICH DISMISSED THE APPEAL OF THE REVENUE IN SPICE ENTERTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENTERTAINMENT HAS BEEN SPECIAL LEAVE PETITION FOR AY 12. IN DOING SO, THIS COURT HAS RELIED ON THE DECISION IN SPICE ENTERTAINMENT.' WHILE ARRIVING AT SUCH A DECISION, THE HON'BLE APEX COURT HAS TAKEN NOTE OF SECTION 292 - THE SAME READS AS UNDER; '292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR LL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT, OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, BSTANCE AND EFFECT IN CONFORMITY THE JURISDICTION ASSUMED BY THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 148 OF THE EXISTING COMPANY IS SUBSTANTIVE ILLEGALITY AND NOT THE PROCEDU RAL VIOLATION OF B OF THE ACT. THE SUBSTANTIVE DEFECTIVE NOTICE ISSUED EXISTING COMPANY IS NOT CURABLE. ON THIS GROUND ALONE, WITHOUT ADJUDICATING UPON THE OTHER ISSUES RAISED BY THE PETITIONER INASMUCH A S THE LIMITATION FAILURE ON THE PART OF THE ASSESSEE DISCLOSING FULL AND TRUE MATERIAL FACTS NEED NOT BE EXAMINED. WITHOUT GOING INTO THESE ASPECTS, THE WRIT PETITION REQUIRES TO BE ALLO ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT TO THE NON 14. HENCE, NOTICE DATED 28 THE ORDER OVERRULING THE OBJECTIONS OF THE PETITIONER DATED 29 NOTICE DATED 11-12- 2018 ISSUED UNDER SECTION 142(1) OF THE ACT AT ANNEXURE QUASHED. 15. THE WRIT PETITION IS ALLOWED, IN TERMS OF THE ABOVE. 20. IN VIEW OF THE ABOVE PRECEDENTS (SUPRA), THE ASSESSEE SUCCEEDS ON THIS LEGAL ISSUE. WE HOLD THAT THE NOTICE DATED 30/03/2017 ISSUED IN THE NAME OF A NON AO USURPED TO ASSESS THE ASSES ASSESSMENT SO FRAMED U/S 144/147 OF THE ACT WITHOUT ASSUMING VALID JURISDICTION IS HELD TO BE NULL IN THE EYES OF LAW. WE THEREFORE HOLD THAT THE IMPUGNED ASSESSMENT ORDER DATED 29.12.2017 IS NON-EST AND AB INITIO VOID AND, THEREFORE, ALL AND CONFIRMED BY THE LD CIT(A) ARE 21. IT IS ALSO NOTED THAT, THE REOPENING OF ASSESSMENT WAS BEYOND THE PERIOD OF FOUR YEARS AND THE ORIGINAL ASSESSMENT WAS COMPLETED U/S CIRCUMSTANCES, IT WAS INCUMBENT UPON THE AO TO SATISFY THE CONDITION PRECEDENT IN THE PROVISO TO SECTION 147 OF THE ACT AND IT WAS MANDATORY FOR HIM TO SPEAK THROUGH HIS RECORDED REASONS THAT THE ASSESSMENT IS BEING REOPE TO TRULY AND FULLY DISCLOSED MATERIAL FACTS NECESSARY FOR ASSESSMENT. REASONS HOWEVER SHOWS THAT THERE IS NO ALLEGATION THAT, THERE IS FAILURE ON THE PART OF THE ASSESSEE IN TRU LY AND FULLY DISCLOSING MATERIAL FACTS NECESSARY FOR ASSESSMENT. THIS BENCH OF THE ITAT IN THE CASE OF HALDIA PETROCHEMICALS LTD. VS. ACIT, ITA NO.2455/KOL/2019 ORDER DATED 24.03.2021 AFTER CONSIDERING A NUMBER OF JUDGMENTS ON THIS IDENTICAL ISSUE FOLLOWS: 4.1. ADMITTEDLY, THE RE END OF ASSESSMENT YEAR 2008 INTO PLAY. A READING OF THE REASONS RECORDED FOR RE THERE IS NO ALLEGATION MADE, THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO TRULY AND FULLY DISCLOSE MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. UNDER THESE CIRCUMSTANCES, WE HAVE TO HOLD THAT THE RE- OPENING OF ASSESSMENT IS BAD IN 4.2. THIS KOLKATA A BENCH OF THE TRIBUNAL IN THE CASE OF INDUSTRIES LTD. VS. DCIT, CC 16 OF THE ASSESSEE DISCLOSING FULL AND TRUE MATERIAL FACTS NEED NOT BE EXAMINED. WITHOUT GOING INTO THESE ASPECTS, THE WRIT PETITION REQUIRES TO BE ALLO WED ON THE GROUND OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT TO THE NON - EXISTING COMPANY. 14. HENCE, NOTICE DATED 28 -3- 2018 ISSUED UNDER SECTION 148 OF THE ACT, AT ANNEXURE THE ORDER OVERRULING THE OBJECTIONS OF THE PETITIONER DATED 29 -11-2018 AT ANNEXURE 2018 ISSUED UNDER SECTION 142(1) OF THE ACT AT ANNEXURE 15. THE WRIT PETITION IS ALLOWED, IN TERMS OF THE ABOVE. IN VIEW OF THE ABOVE RATIO DECIDENDI OF THE HON'BLE APEX COURT AND JUDICIAL PRECEDENTS (SUPRA), THE ASSESSEE SUCCEEDS ON THIS LEGAL ISSUE. WE HOLD THAT THE NOTICE DATED 30/03/2017 ISSUED IN THE NAME OF A NON -EXISTENT ENTITY WAS AB- INITIO VOID AND THEREFORE, THE AO USURPED TO ASSESS THE ASSES SEE WITHOUT HAVING VALID JURISDICTION. ACCORDINGLY, THE ASSESSMENT SO FRAMED U/S 144/147 OF THE ACT WITHOUT ASSUMING VALID JURISDICTION IS HELD TO BE NULL IN THE EYES OF LAW. WE THEREFORE HOLD THAT THE IMPUGNED ASSESSMENT ORDER DATED AND AB INITIO VOID AND, THEREFORE, ALL CONSEQUENT ACTION TAKEN BY AO BY THE LD CIT(A) ARE NULL AND VOID. IT IS ALSO NOTED THAT, THE REOPENING OF ASSESSMENT WAS BEYOND THE PERIOD OF FOUR YEARS AND THE ORIGINAL ASSESSMENT WAS COMPLETED U/S . 143(3) OF THE ACT. UNDER THESE CIRCUMSTANCES, IT WAS INCUMBENT UPON THE AO TO SATISFY THE CONDITION PRECEDENT IN THE PROVISO TO SECTION 147 OF THE ACT AND IT WAS MANDATORY FOR HIM TO SPEAK THROUGH HIS RECORDED REASONS THAT THE ASSESSMENT IS BEING REOPE NED CONSEQUENT TO FAILURE ON THE PART OF THE ASSESSEE TO TRULY AND FULLY DISCLOSED MATERIAL FACTS NECESSARY FOR ASSESSMENT. PERUSAL OF THE RECORDED THAT THERE IS NO ALLEGATION THAT, THERE IS FAILURE ON THE PART OF THE LY AND FULLY DISCLOSING MATERIAL FACTS NECESSARY FOR ASSESSMENT. THIS BENCH OF THE ITAT IN THE CASE OF HALDIA PETROCHEMICALS LTD. VS. ACIT, ITA NO.2455/KOL/2019 ORDER DATED 24.03.2021 AFTER CONSIDERING A NUMBER OF JUDGMENTS ON THIS IDENTICAL ISSUE ADMITTEDLY, THE RE - OPENING OF ASSESSMENT IS AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF ASSESSMENT YEAR 2008 - 09 AND HENCE THE PROVISO TO SECTION 147 OF THE ACT COMES INTO PLAY. A READING OF THE REASONS RECORDED FOR RE -OPENING OF ASSE SSMENT SHOWS THAT THERE IS NO ALLEGATION MADE, THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO TRULY AND FULLY DISCLOSE MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. UNDER THESE CIRCUMSTANCES, WE OPENING OF ASSESSMENT IS BAD IN LAW. THIS KOLKATA A BENCH OF THE TRIBUNAL IN THE CASE OF M/S. BEEKAY STEEL INDUSTRIES LTD. VS. DCIT, CC -XXX, KOLKATA IN ITA NO. 105/KOL/2015 ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. OF THE ASSESSEE DISCLOSING FULL AND TRUE MATERIAL FACTS NEED NOT BE EXAMINED. WITHOUT WED ON THE GROUND OF EXISTING COMPANY. 2018 ISSUED UNDER SECTION 148 OF THE ACT, AT ANNEXURE -A, AT ANNEXURE -B AND 2018 ISSUED UNDER SECTION 142(1) OF THE ACT AT ANNEXURE -S ARE OF THE HON'BLE APEX COURT AND JUDICIAL PRECEDENTS (SUPRA), THE ASSESSEE SUCCEEDS ON THIS LEGAL ISSUE. WE HOLD THAT THE NOTICE DATED INITIO VOID AND THEREFORE, THE SEE WITHOUT HAVING VALID JURISDICTION. ACCORDINGLY, THE ASSESSMENT SO FRAMED U/S 144/147 OF THE ACT WITHOUT ASSUMING VALID JURISDICTION IS HELD TO BE NULL IN THE EYES OF LAW. WE THEREFORE HOLD THAT THE IMPUGNED ASSESSMENT ORDER DATED CONSEQUENT ACTION TAKEN BY AO IT IS ALSO NOTED THAT, THE REOPENING OF ASSESSMENT WAS BEYOND THE PERIOD OF FOUR YEARS . 143(3) OF THE ACT. UNDER THESE CIRCUMSTANCES, IT WAS INCUMBENT UPON THE AO TO SATISFY THE CONDITION PRECEDENT IN THE PROVISO TO SECTION 147 OF THE ACT AND IT WAS MANDATORY FOR HIM TO SPEAK THROUGH HIS RECORDED NED CONSEQUENT TO FAILURE ON THE PART OF THE ASSESSEE PERUSAL OF THE RECORDED THAT THERE IS NO ALLEGATION THAT, THERE IS FAILURE ON THE PART OF THE LY AND FULLY DISCLOSING MATERIAL FACTS NECESSARY FOR ASSESSMENT. THIS BENCH OF THE ITAT IN THE CASE OF HALDIA PETROCHEMICALS LTD. VS. ACIT, ITA NO.2455/KOL/2019 ORDER DATED 24.03.2021 AFTER CONSIDERING A NUMBER OF JUDGMENTS ON THIS IDENTICAL ISSUE HAD HELD AS OPENING OF ASSESSMENT IS AFTER THE EXPIRY OF FOUR YEARS FROM THE 09 AND HENCE THE PROVISO TO SECTION 147 OF THE ACT COMES SSMENT SHOWS THAT THERE IS NO ALLEGATION MADE, THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO TRULY AND FULLY DISCLOSE MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. UNDER THESE CIRCUMSTANCES, WE M/S. BEEKAY STEEL ITA NO. 105/KOL/2015 , ORDER DATED 31.05.2017 CONSIDERED THE LEGAL ISSUE AND THE PROPOSITIONS OF LAW LAID DOWN BY VARIOUS HIGH COURTS AND HELD AS FOLLOWS: 4.4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TAO PUBLISHING (P) LTD. V. DY.CIT REPORTED IN (2015) 370 ITR 135 (BOM.), HAS HELD AS FOLLOWS: 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE T ANY FAILURE ON THE PART OF THE PETITIONER TO PROVIDE ALL THE MATERIAL FACTS. THAT BEING THE POSITION, THIS GROUND COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF DISPOSING OF THE OBJECTIONS. ONCE THIS WAS NOT THE BASIS FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THAT THE PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO MAKE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS CARRYING OUT THE REASSESSMENT, AFTER THE EXPIRY OF PERIOD OF FOUR YEARS, IS NOT FULFILLED IN THE PRESENT CASE. 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT REPORTED IN 250 CTR 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN DISCLOSED TO THE ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THEREFORE REOPENING BEYOND FOUR YE ARS WAS NOT VALID. (A.Y. 2005 4.6. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ORIENT CRAFT LTD. REPORTED IN [2013] 354 ITR 356 (DEL.)(HC) HAS HELD AS FOLLOWS: THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION ABOUT THE HARM THAT A LESS STRICT INTERPRETATION OF THE WORDS REASON TO BELIEVE VIS-- VIS AN INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAM POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATION. IT REFLECTS AN ARBITRARY EXERCISE OF THE POWER CONFERRED UNDER SECTION 147. 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. COMM ISSIONER OF INCOME AS FOLLOWS: 26. VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITH PROVISO, WHETHER OR NOT IT WAS COVERED UNDER THE MAIN PROVISIONS OF SECTION 147 OF THE SAID ACT WOULD NOT BE MATERIAL. ONCE THE EXCEPTION CARVED OUT BY THE PROVISO CAME INTO PLAY, THE CASE WOULD FALL OUTSIDE THE AMBIT OF SECTION 147. 27. EXAMINING T HE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF THE FOLLOWING CONDITIONS ARE SATISFIED: (A) AN ASSESSMENT UNDER SUB THE RELEVANT ASSESSMENT YEAR; AND (B) UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: (I) TO MAKE A RETURN UNDER SECTION 139 OR IN (1) OF SECTION 142 OR SECTION 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. 17 31.05.2017 CONSIDERED THE LEGAL ISSUE AND THE PROPOSITIONS OF LAW LAID DOWN BY VARIOUS COURTS AND HELD AS FOLLOWS: 4.4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TAO PUBLISHING (P) LTD. V. DY.CIT REPORTED IN (2015) 370 ITR 135 (BOM.), HAS HELD AS FOLLOWS: - 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE T ANY FAILURE ON THE PART OF THE PETITIONER TO PROVIDE ALL THE MATERIAL FACTS. THAT BEING THE POSITION, THIS GROUND COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF DISPOSING OF THE OBJECTIONS. ONCE THIS WAS NOT THE BASIS FOR ISSUANCE OF NOTICE FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THAT THE PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO MAKE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS . THE JURISDICTIONAL REQUIREMENT FOR CARRYING OUT THE REASSESSMENT, AFTER THE EXPIRY OF PERIOD OF FOUR YEARS, IS NOT FULFILLED IN 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN DISCLOSED TO THE ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THEREFORE REOPENING ARS WAS NOT VALID. (A.Y. 2005 -06). 4.6. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ORIENT CRAFT LTD. REPORTED IN [2013] 354 ITR 356 (DEL.)(HC) HAS HELD AS FOLLOWS: THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION ABOUT THE HARM THAT A LESS STRICT INTERPRETATION OF THE WORDS REASON TO VIS AN INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAM POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATION. IT REFLECTS AN ARBITRARY EXERCISE OF THE POWER CONFERRED UNDER SECTION 147. 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. ISSIONER OF INCOME - TAX AND ANOR. REPORTED IN [2009] 308 ITR 38 (DELHI) HAS HELD 26. VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITH PROVISO, WHETHER OR NOT IT WAS COVERED UNDER THE MAIN PROVISIONS OF SECTION 147 OF THE SAID ACT WOULD NOT BE MATERIAL. ONCE THE EXCEPTION CARVED OUT BY THE PROVISO CAME INTO PLAY, THE CASE WOULD FALL OUTSIDE THE AMBIT OF SECTION 147. HE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF THE FOLLOWING CONDITIONS ARE SATISFIED: (A) AN ASSESSMENT UNDER SUB -SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR; AND (B) UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: (I) TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB (1) OF SECTION 142 OR SECTION 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. 31.05.2017 CONSIDERED THE LEGAL ISSUE AND THE PROPOSITIONS OF LAW LAID DOWN BY VARIOUS 4.4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TAO PUBLISHING (P) LTD. V. DY.CIT 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE T HAT THERE WAS ANY FAILURE ON THE PART OF THE PETITIONER TO PROVIDE ALL THE MATERIAL FACTS. THAT BEING THE POSITION, THIS GROUND COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF ISSUANCE OF NOTICE FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THAT THE PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO . THE JURISDICTIONAL REQUIREMENT FOR CARRYING OUT THE REASSESSMENT, AFTER THE EXPIRY OF PERIOD OF FOUR YEARS, IS NOT FULFILLED IN 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN DISCLOSED TO THE ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THEREFORE REOPENING 4.6. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ORIENT CRAFT LTD. REPORTED IN THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION ABOUT THE HARM THAT A LESS STRICT INTERPRETATION OF THE WORDS REASON TO VIS AN INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAM E TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATION. IT REFLECTS AN 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. TAX AND ANOR. REPORTED IN [2009] 308 ITR 38 (DELHI) HAS HELD 26. VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITH IN THE PROVISO, WHETHER OR NOT IT WAS COVERED UNDER THE MAIN PROVISIONS OF SECTION 147 OF THE SAID ACT WOULD NOT BE MATERIAL. ONCE THE EXCEPTION CARVED OUT BY THE PROVISO CAME INTO HE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR; AND (B) UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: RESPONSE TO A NOTICE ISSUED UNDER SUB -SECTION (1) OF SECTION 142 OR SECTION 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS CONDITION (A) IS ADMITTEDLY SATISFIED INASMUCH AS THE ORIGINAL A UNDER SECTION 143(3) OF THE SAID ACT. CONDITION (B) DEALS WITH A SPECIAL KIND OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR ISSUED UNDER SUB- SECTION (1) OF SECTION 142 OR SECTION 148. THIS IS CLEARLY NOT THE CASE HERE BECAUSE THE PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE RETURN, THE ESCAPEMENT OF INCOME CANNOT BE ATTRIBUTED T THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IF IT IS ALSO F MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT, THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR NOT THE PETITIONER HAD MADE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS? 29. IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR AS SESSMENT AND THAT BECAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED ABOVE. T HE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED BY THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDI NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION UNDER SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION. CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR PERIOD REMAINS UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGH ABSENCE OF AN ALLEGATION IN THE REASONS RECORDED THAT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, ANY ACTION T UNDER SECTION 147 BEYOND THE FOUR YEAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. REITERATING OUR VIEW- POINT, WE HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 BASED ON THE RECORDED REASONS AS SUPPLIED TO THE PETITI ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYOND THE FOUR YEAR PERIOD IN THE CIRCUMSTANCES NARRATED ABOVE. 4.8. APPLYING THE PROPOSITIONS LAID DOWN IN THE ABOVE CASE LAW TO WE HAVE TO NECESSARILY HOLD THAT THE RE THAT THERE IS NOT EVEN A WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT THERE IS A FAILURE ON THE PART OF THE ASSE THE NECESSARY MATERIAL FACTS REQUIRED FOR ASSESSMENT IN VIEW OF THE 1STPROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSM BASED ON THE SAME MATERIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH THE LD. COUNSEL FOR THE ASSESSEE AS THERE WAS N ASSESSING OFFICER DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, NOR THERE WAS A REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. 4.9. IN ANY EVENT, AS WE HA REQUIREMENT OF THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS 18 CONDITION (A) IS ADMITTEDLY SATISFIED INASMUCH AS THE ORIGINAL A SSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE SAID ACT. CONDITION (B) DEALS WITH A SPECIAL KIND OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE SECTION (1) OF SECTION 142 OR SECTION 148. THIS IS CLEARLY NOT THE CASE HERE BECAUSE THE PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE RETURN, THE ESCAPEMENT OF INCOME CANNOT BE ATTRIBUTED T O SUCH FAILURE. THIS LEAVES US WITH THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IF IT IS ALSO F OUND THAT THE PETITIONER HAD DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT, THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR HAD MADE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS? 29. IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS SESSMENT AND THAT BECAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED HE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED BY THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDI NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION UNDER SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION. CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR REMOVING THE BAR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR PERIOD REMAINS UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGH ANIA (SUPRA) THAT, IN THE ABSENCE OF AN ALLEGATION IN THE REASONS RECORDED THAT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, ANY ACTION T AKEN BY THE ASSESSING OFFICER UNDER SECTION 147 BEYOND THE FOUR YEAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. POINT, WE HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 BASED ON THE RECORDED REASONS AS SUPPLIED TO THE PETITI ONER AS WELL AS THE CONSEQUENT ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYOND THE FOUR YEAR PERIOD IN THE CIRCUMSTANCES NARRATED ABOVE. 4.8. APPLYING THE PROPOSITIONS LAID DOWN IN THE ABOVE CASE LAW TO THE FACTS TO THIS CASE, WE HAVE TO NECESSARILY HOLD THAT THE RE - OPENING OF THE ASSESSMENT PROCEEDINGS IS NOT VALID THAT THERE IS NOT EVEN A WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT THERE IS A FAILURE ON THE PART OF THE ASSE SSEE TO DISCLOSE FULLY AND TRULY ALL THE NECESSARY MATERIAL FACTS REQUIRED FOR ASSESSMENT IN VIEW OF THE 1STPROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSM ENT ORDER U/S 143(3). RE - BASED ON THE SAME MATERIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH THE LD. COUNSEL FOR THE ASSESSEE AS THERE WAS N EITHER A QUERY ON THIS ISSUE BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, NOR THERE WAS A REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION 4.9. IN ANY EVENT, AS WE HA VE HELD THAT THE RE- OPENING IS BAD IN LAW AS IT DOES NOT FULFIL THE REQUIREMENT OF THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. SSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE SAID ACT. CONDITION (B) DEALS WITH A SPECIAL KIND OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON IN RESPONSE TO A NOTICE SECTION (1) OF SECTION 142 OR SECTION 148. THIS IS CLEARLY NOT THE CASE HERE BECAUSE THE PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE O SUCH FAILURE. THIS LEAVES US WITH THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR OUND THAT THE PETITIONER HAD DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT, THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR HAD MADE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS? 29. IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS SESSMENT AND THAT BECAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED HE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED BY THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDI TION IS NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION UNDER SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN REMOVING THE BAR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR PERIOD REMAINS UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE ANIA (SUPRA) THAT, IN THE ABSENCE OF AN ALLEGATION IN THE REASONS RECORDED THAT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL AKEN BY THE ASSESSING OFFICER UNDER SECTION 147 BEYOND THE FOUR YEAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. POINT, WE HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 ONER AS WELL AS THE CONSEQUENT ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE THE FACTS TO THIS CASE, OPENING OF THE ASSESSMENT PROCEEDINGS IS NOT VALID THAT THERE IS NOT EVEN A WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE SSEE TO DISCLOSE FULLY AND TRULY ALL THE NECESSARY MATERIAL FACTS REQUIRED FOR ASSESSMENT IN VIEW OF THE 1STPROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF THE - OPENING IS DONE BASED ON THE SAME MATERIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH EITHER A QUERY ON THIS ISSUE BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, NOR THERE WAS A REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION OPENING IS BAD IN LAW AS IT DOES NOT FULFIL THE REQUIREMENT OF THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS COME TO THE POSSESSION OF THE ASSESSING OFFICER, WE QUASH THE ASSESSMENT AND ALLOW THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5.1. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE FACTS OF THE CASE ON HAND, I HOLD THAT THE RE 6. IN THE RESULT AP PEAL OF THE ASSESSEE IS ALLOWED. 4.2. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE LAWS TO THE FACTS OF THIS CASE WE HOLD THAT THE RE IMPUGNED ASSESSMENT ORDER IS HEREBY QUASHED. 22. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THE DECISION OF THE COORDINATE BENCH TO THE FACTS OF THIS CASE, WE NOTE THAT THERE IS NO WHISPER MUCH LESS ANY ALLEGATION BY THE AO THAT THE ASSESSEE HAS FAILED TO DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSM INCOME, AND THEREFORE THE REOPENING OF ASSESSMENT IS HELD TO BE BAD IN LAW. FOREGOING FINDINGS, WE DO NOT DEEM IT NECESSARY TO DEAL WITH OTHER LEGAL ARGUMENTS PUT FORTH BY THE ASSESSEE CHALLENGING THE VALIDITY OF REASSES NOW BECOME ACADEMIC IN NATURE. ACCORDINGLY, GROUND NOS. 23. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON SD/- [ ABY T. VARKEY ] JUDICIAL MEMBER {SC SPS} 19 COME TO THE POSSESSION OF THE ASSESSING OFFICER, WE QUASH THE ASSESSMENT AND ALLOW THE 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5.1. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE FACTS OF THE CASE ON HAND, I HOLD THAT THE RE - OPENING OF ASSESSMENT IS BAD IN LAW. PEAL OF THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE LAWS TO THE FACTS OF THIS CASE WE HOLD THAT THE RE - OPENING IS BAD IN LAW. IN THE RESULT, THE IMPUGNED ASSESSMENT ORDER IS HEREBY QUASHED. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THE DECISION OF THE COORDINATE BENCH TO THE FACTS OF THIS CASE, WE NOTE THAT THERE IS NO WHISPER MUCH LESS ANY ALLEGATION BY THE AO THAT THE ASSESSEE HAS FAILED TO DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSM ENT IN THE RETURN OF INCOME, AND THEREFORE THE REOPENING OF ASSESSMENT IS HELD TO BE BAD IN LAW. FOREGOING FINDINGS, WE DO NOT DEEM IT NECESSARY TO DEAL WITH OTHER LEGAL ARGUMENTS PUT FORTH BY THE ASSESSEE CHALLENGING THE VALIDITY OF REASSES SMENT AS WELL AS ON MERITS NOW BECOME ACADEMIC IN NATURE. ACCORDINGLY, GROUND NOS. 1 TO 3 STANDS ALLOWED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE, 2021 [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER DATED: 29.06.2021 ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. COME TO THE POSSESSION OF THE ASSESSING OFFICER, WE QUASH THE ASSESSMENT AND ALLOW THE 5.1. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE -LAW TO THE OPENING OF ASSESSMENT IS BAD IN LAW. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE CASE LAWS OPENING IS BAD IN LAW. IN THE RESULT, THE APPLYING THE PROPOSITION OF LAW LAID DOWN IN THE DECISION OF THE COORDINATE BENCH TO THE FACTS OF THIS CASE, WE NOTE THAT THERE IS NO WHISPER MUCH LESS ANY ALLEGATION BY THE AO THAT ENT IN THE RETURN OF INCOME, AND THEREFORE THE REOPENING OF ASSESSMENT IS HELD TO BE BAD IN LAW. IN VIEW OF THE FOREGOING FINDINGS, WE DO NOT DEEM IT NECESSARY TO DEAL WITH OTHER LEGAL ARGUMENTS PUT FORTH AS WELL AS ON MERITS AS SINCE IT HAS STANDS ALLOWED. SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. EMTA COAL LTD 5B, NANDLAL BASU SARANI KOLKATA 700 071 2. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 20 COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -3(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2422/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. EMTA COAL LTD. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES
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