V3S Infratech Ltd., New Delhi V. ACIT, New Delhi

ITA 3643/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0666 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law; Validity of assessment; Procedural lapse; Scheme of amalgamation; Reassessment proceedings
• Section: 143(3); 153A; 144C; 292BB; 143(2); 147; 148; 263; 132; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO.3643/DEL/2016 ASSESSMENT YEAR: 2007-08 V3S INFRATECH LTD. (AMALGAMATED CO. OF YOGUM DEVELOPERS PVT. LTD.) A-20, NARAINA INDUSTRIAL AREA, PHASE-I, NARAINA, NEW DELHI. V. ACIT, CENTRAL CIRCLE-23 (NOW CC-32), NEW DELHI. TAN/PAN: AABCG 9474A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SANJAY KUMAR, CA & SHRI AJAY KUMAR, CA RESPONDENT BY: SHRI N.K. BANSAL, SR.D.R. DATE OF HEARING: 25 03 2019 DATE OF PRONOUNCEMENT: 21 05 2019 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 28.03.2016, PASSED BY LD. CIT (APPEALS)-30, NEW DELHI FOR THE QUANTUM OF ASSESSMENT UNDER SECTION 143(3)/147 FOR THE ASSESSMENT YEAR 2007-08. THE ASSE SSEE HAS RAISED VARIOUS GROUNDS AGAINST THE INITIATION OF PROC EEDINGS UNDER SECTION 147 AND FRAMING OF ASSESSMENT ON A NON-EXISTI NG ENTITY, NON-ISSUE OF NOTICE UNDER SECTION 143(2); AND MERITS O F ADDITION. 2. IN GROUNDS OF APPEAL NO. 1 & 2, THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE THAT THE VERY INITIATION OF PROCEEDING S UNDER SECTION 147 AND FRAMING OF ASSESSMENT IN PURSUANCE THE REOF IN THE NAME OF M/S YOGUM DEVELOPERS PVT. LTD., A NON-EXISTI NG ENTITY IS I.T.A. NO.3643/DEL/2016 2 VOID AB-INITIO WHICH CANNOT BE CURED BY THE PROVISION S OF SECTION 292BB OF THE ACT. 4. FACTS IN BRIEF QUA THE SAID ISSUE ARE THAT COMPANY N AMELY, M/S YOGUM DEVELOPERS PVT. LTD. WAS INCORPORATED ON 16. 09.2004. ORIGINAL RETURN FOR THE A.Y. 2007-08 WAS E-FILED BY THIS COMPANY ON 31.10.2007. PURSUANT TO THE JUDGMENT OF HONBLE DE LHI HIGH COURT AND BOMBAY HIGH COURT VIDE ORDERS DATED 21.10.2 008 AND 24.10.2008 RESPECTIVELY, M/S YOGUM DEVELOPERS PVT. LTD . WAS MERGED W.E.F. 01.04.2007 WITH M/S GAHOI BUILDWELL L TD. (SUBSEQUENTLY RENAMED AS M/S V3S INFRATECH LTD. W.E.F . 27.11.2009). ASSESSMENT IN THE CASE OF M/S YOGUM DEV ELOPERS PVT. LTD. WAS COMPLETED U/S 143(3) VIDE ORDER DATED 0 8.12.2009 AT AN INCOME OF RS. 60,53,114/-; AND AGAIN SECOND TIME ASSESSMENT WAS MADE U/S 153A R.W.S. 143(3) VIDE ORDER DATED 28 .12.2010 ON THE SAME INCOME. THEREAFTER, THE ASSESSMENT WAS REOPEN ED UNDER SECTION 147 OF THE ACT AND NOTICE UNDER SECTION 148 OF THE ACT DATED 31.03.2014 WAS ISSUED TO THE PRINCIPLE OFFICER , M/S YOGUM DEVELOPERS PVT. LTD. (NOW KNOWN AS M/S V3S INFRATECH LTD.). 4.1 AS POINTED OUT BY THE LD. COUNSEL, DURING THE CO URSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE MERGER OF M/S Y OGUM DEVELOPERS PVT. LTD. WITH M/S GAHOI BUILDWELL LTD. (SU BSEQUENTLY RENAMED AS M/S V3S INFRATECH LTD. W.E.F. 27.11.2009) WAS INTIMATED TO THE ASSESSING OFFICER VIDE LETTER FILED ON 02.08.2010 (COPY OF INTIMATION HAS BEEN PLACED AT PAGES 106-111 OF THE PB) AND ALSO ONCE AGAIN IN THE REASSESSMENT PROCEEDINGS VIDE LETTER FILED ON 07.05.2014 (PAGES 2-3 OF PB). DURING THE CO URSE OF REASSESSMENT PROCEEDINGS, OBJECTIONS TO THE REASONS REC ORDED AND ISSUE OF NOTICE UNDER SECTION 148 AND OTHER REPLIES W ERE FILED. I.T.A. NO.3643/DEL/2016 3 FINALLY, THE REASSESSMENT PROCEEDINGS WERE CONCLUDED VIDE ORDER DATED 30.06.2014 IN THE NAME OF M/S YOGUM DEVELOPERS PVT. LTD. PASSED UNDER SECTION 143(3)/147 OF THE ACT BY MAKING ADDITION OF RS. 48,55,728/-. 5. BEING AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BE FORE THE LD. CIT (A) BOTH ON VALIDITY OF REASSESSMENT PROCEEDINGS AS WELL AS ON MERITS OF THE ADDITION MADE. ON MERITS, LD. CIT (A) ALL OWED PART RELIEF TO THE ASSESSEE HOWEVER HAD CONFIRMED THE ADDITI ON TO THE EXTENT OF RS. 10,00,000/-. IN SO FAR AS THE ISSUE OF FRAMING OF ASSESSMENT IN THE NAME OF M/S YOGUM DEVELOPERS PVT. L TD., LD. CIT (A) HELD THAT IT IS A CURABLE DEFECT AS PER PROVIS IONS OF SECTION 292BB OF THE ACT. THE RELEVANT FINDING OF THE LD. CIT ( A) IS REPRODUCED HEREUNDER:- I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, W RITTEN SUBMISSIONS, CASE LAWS RELIED UPON AND ORAL ARGUMEN TS OF LD. AR. THE OBJECTIONS/ARGUMENTS OF THE APPELLANT ARE AS UN DER:- (I) VIDE HONBLE DELHI HIGH COURT AND BOMBAY HIGH C OURT ORDERS DATED 21.10.2008 AND 24.10.2008 RESPECTIVELY, M/S. YOGUM DEVELOPERS PRIVATE LIMITED (INCORPORATED ON 16.9.20 04), WAS MERGED W.E.F. 01.04.2007 WITH M/S. GAHOI BUILDWELL LTD. SUBSEQUENTLY, M/S. GAHOI BUILDWELL LTD. WAS RENAMED AS M/S. V3S INFRATECH LTD. W.E.F. 27.11.2009 . (II) IN THE CASE OF THE ASSESSEE, SEARCH ACTION U/S 132 WAS CARRIED ON 19.01.2009 AND THE ASSESSMENT ORDER U/S 153A WAS PASSED ON 28.12.2010. (III) SUBSEQUENTLY, NOTICE U/S 148 WAS ISSUED ON 31 .03.2014, IN THE NAME OF THE PRINCIPAL OFFICER, M/S. YOGUM DEVE LOPERS PRIVATE LIMITED (NOW KNOWN AS M/S. V3S INFRATECH LIMITED). ACCORDINGLY, IT HAS BEEN OBJECTED THAT THIS NOTICE THAT THE SAME IS NOT ISSUED IN THE NAME OF THE APPELLANT. ON PERUSAL OF THE ASSESSMENT ORDER, NOTICES ISSUED BY THE A.O. AND THE REPLY FILED BY THE APPEL LANT, BOTH THE NAMES I.E. M/S. V3S INFRATECH LIMITED/ M/S. YOGUM D EVELOPERS PRIVATE LIMITED HAVE BEEN MENTIONED BY THE A.O. AS WELL AS BY THE APPELLANT. IN THE ASSESSMENT ORDER, PASSED U/S 143( 3) ON 08.12.2009, THE NAME OF THE ASSESSEE IS WRITTEN AS M/S. YOGUM I.T.A. NO.3643/DEL/2016 4 DEVELOPERS PRIVATE LIMITED, ALTHOUGH THE NAME OF TH E COMPANY WAS CHANGED W.E.F. 27.11.2009. IN VIEW OF THESE FACTS, MENTIONING OF OLD NAME, IS NOT FATAL AND IS CURABLE AS PER PROVISION OF SECTION 292BB. A CCORDINGLY, THIS OBJECTION OF THE APPELLANT IS NOT ACCEPTABLE. 6. AT THE TIME OF HEARING BEFORE US LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT A COMPANY INCORPORATED UNDER THE COMPANIE S ACT, 1956 IS A JURISTIC PERSON. IT TAKES ITS BIRTH AND GETS LIFE WITH THE INCORPORATION AND DIES WITH THE DISSOLUTION, AS PER TH E PROVISIONS OF COMPANIES ACT. IT IS TRITE LAW THAT ON AMALGAMATION, TH E AMALGAMATING COMPANY CEASES TO EXIST IN THE EYES OF LAW . HAVING REGARD TO THE CONSEQUENCES PROVIDED IN LAW IN UMPTEEN NUMBERS OF CASES AND ASSESSMENT UPON A DISSOLVED COMPANY IS IMPERMISSIBLE AS THERE IS NO PROVISION IN INCOME-TAX TO MAKE AN ASSESSMENT ON IT. THEREFORE, IT WAS INCUMBENT UPON THE L D. ASSESSING OFFICER TO SUBSTITUTE THE NAME OF THE AMALGAMA TED COMPANY I.E. GAHOI BUILDWELL LTD. (RENAMED AS V3S IN FRATECH LTD.) PRIOR TO ISSUE OF NOTICE UNDER SECTION 148 AND IN AN Y CASE, NO ASSESSMENT COULD BE FRAMED IN THE NAME OF DISSOLVED A ND NON- EXISTING COMPANY WHICH IS A JURISDICTIONAL DEFECT. 7 LD. COUNSEL FURTHER SUBMITTED THAT RELIANCE PLACED BY THE LD. CIT(A) ON THE PROVISIONS OF SECTION 292BB OF THE ACT IS WHOLLY ERRONEOUS, AS IN THE PRESENT CASE ASSESSEE HAS RAISE D ITS OBJECTION BEFORE THE COMPLETION OF ASSESSMENT VIDE LETTER FILED O N 07.05.2014 WHICH IS EVIDENT FROM PAGES 2-4 OF THE PB. FURTHER, THE FRAMING OF ASSESSMENT IN THE NAME OF M/S YOGUM DEVELOPERS PVT. LTD ., A NON-EXISTENT ENTITY CANNOT BE CURED BY THE PROVISIONS O F SECTION 292B OF THE ACT, AS IT GOES TO THE ROOT OF THE MATTER W HICH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT. I.T.A. NO.3643/DEL/2016 5 8. ON THE OTHER HAND LD. DR RELIED ON THE ORDER OF CIT (A) AND ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF SKY LIGHT HOSPITALITY LLP VS. ACIT [2018] 405 ITR 296 ( DELHI) AGAINST WHICH SLP FILED BY THE ASSESSEE WAS DISMISSED VIDE ORDER DATED 06.04.2018 SINCE REPORTED IN [2018] 254 TAXMAN 390 (SC). HOWEVER, LD. DR DID NOT DISPUTE THE FACTUAL SUBMISSION MADE BY THE LD. AR. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL PLACED BEFORE US. WE FIND THAT IT IS NOT IN DISPUTE THAT M/S YOGUM DEVELOPERS PVT. LTD. GOT MERGED AND AMALG AMATED WITH GAHOI BUILDWELL LTD. (NOW NAME CHANGED TO V3S IN FRATECH LTD.) BY VIRTUE OF THE ORDER AND JUDGMENT DATED 21.10. 2008 AND 24.10.2008 OF HONBLE HIGH COURT OF DELHI AND BOMBAY RESPECTIVELY W.E.F. 01.04.2007 (APPOINTED DATE). THE FACTUM OF YOGUM DEVELOPERS PVT. LTD., HAVING BEEN DISSOLVED, AS A RESULT OF ITS AMALGAMATION WITH GAHOI BUILDWELL LTD. WAS BROUGHT TO THE NOTICE OF THE ASSTT. C.I.T., CENTRAL CIRCLE-23, NEW DE LHI (IN SHORT ASSESSING OFFICER) VIDE LETTER FILED ON 14.07.2010 . STILL, THE ASSESSING OFFICER RECORDED THE REASONS UNDER SECTIO N 147 AND ISSUED NOTICE UNDER SECTION 148 DATED 31.03.2014 IN T HE NAME OF M/S YOGUM DEVELOPERS PVT. LTD. (NOW KNOWN AS M/S V3S INFRATECH LTD.). THE SAID NOTICE WAS RESPONDED BY M/ S V3S INFRATECH LTD. (AMALGAMATED COMPANY) VIDE LETTER FILED ON 07.05.2014, WHEREIN AFTER REITERATING THE FACTUM OF MER GER AND LETTER FILED IN EARLIER PROCEEDINGS, IT WAS STATED THAT A S THE ADDRESSEE COMPANY CEASED TO EXIST, THEREFORE, THE VERY INITIATION OF REASSESSMENT PROCEEDINGS AGAINST A NON-EXISTENT ENTITY IS BAD IN LAW AND VOID AB-INITIO. I.T.A. NO.3643/DEL/2016 6 9.1 ON THE AFORESAID PRELIMINARY OBJECTION, NO ORDER DISPOSING OFF OBJECTION WAS PASSED. HOWEVER, FROM A PERUSAL OF THE SHOW CAUSE NOTICE DATED 16.06.2014 (PG. 21-22 OF APB), IT IS S EEN THAT AO IN PARA 2 HAS STATED YOUR OBJECTION REGARDING ISSUE OF NOTICE U/S 148 OF IT ACT, 1961 IS NOT ACCEPTED AS NOW THE COMPAN Y HAS BEEN MERGED WITH M/S V3S INFRATECH LTD.. DESPITE THE AFORE SAID, THE ASSESSING OFFICER, VIDE ORDER DATED 30.06.2014 PASS ED UNDER SECTION 143(3)/147 OF THE ACT, FRAMED THE ASSESSMENT ON YOGUM DEVELOPERS PVT. LTD., THE AMALGAMATING COMPANY. 9.2 THE AFORESAID ASSESSMENT ORDER WAS APPEALED AGAI NST BY M/S V3S INFRATECH LTD. (AMALGAMATED COMPANY) BEFORE THE CI T (A), INTER ALIA, ON THE GROUND THAT THE SAME WAS BAD IN LAW AND VOID AB-INITIO, THE ASSESSMENT HAVING BEEN FRAMED UPON AND IN THE NAME OF A NO-EXISTENT ENTITY. THE CIT(A), HOWEVER, REJ ECTED THE AFORESAID GROUND BY HOLDING THAT IN THE NOTICES ISSUED BY THE A.O. BOTH THE NAMES I.E. M/S V3S INFRATECH LIMITED / M/S YOGUM DEVELOPERS PRIVATE LIMITED HAVE BEEN MENTIONED AND THE DEFECT IN THE NAME OF ASSESSMENT ORDER IS NOT FATAL AND IS CURABL E AS PER PROVISIONS OF SECTION 292BB OF THE ACT. 10 FIRST OF ALL, IT SHALL BE APT TO REFER TO THE DECISIO N OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD. VS CIT [2012] 247 CTR 500 (DEL.) , AS RELIED UPON BY THE LD. COUNSEL BEFORE US. IN THE SAID CASE SPICE CORPORATION LTD. IN A SCHEME OF AMALGAMATION APPROVED BY THE HONBLE DELHI HIGH COURT VIDE ORDER DATED 11.02.2004 GOT AMALGAMATED WITH MCORP PRIVATE LTD. W.E.F. 01.07.2003 AND ITS NAME WAS STRUCK OFF FROM THE ROLLS OF COMPANIES MAINTAINED BY THE ROC. PRIOR TO AMA LGAMATION ORDER, IT FILED ITS RETURN FOR THE A.Y. 2002-03 ON 30. 10.2002 WHICH I.T.A. NO.3643/DEL/2016 7 WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 1 43(2) WAS ISSUED BY THE AO ON 18.10.2003. FACTUM OF MERGER WAS BROUGHT TO THE NOTICE OF THE AO ON 02.04.2004. THEREAFTER, THE ASS ESSMENT ORDER DATED 28.03.2005 WAS PASSED UNDER SECTION 143( 3) ON SPICE CORPORATION LTD., THE AMALGAMATING COMPANY. APPEAL FILE D BY THE AMALGAMATED COMPANY ON THE GROUND THAT ASSESSMENT HAVIN G BEEN FRAMED ON A NON-EXISTENT ENTITY WAS BAD IN LAW AN D VOID AB- INITIO WAS DISMISSED BY THE CIT (A) AND ALSO BY THE HONBLE ITAT. IN FURTHER, APPEAL FOLLOWING TWO QUESTIONS OF LAW WAS FR AMED:- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN HOLDING THAT THE ACTIO N OF THE AO IN FRAMING ASSESSMENT IN THE NAME OF 'SPICE CORP. LTD. ', AFTER THE SAID ENTITY STOOD DISSOLVED CONSEQUENT UPON ITS AMA LGAMATION WITH MCORP (P) LTD. W.E.F 1ST JULY, 2003, WAS A MER E PROCEDURAL DEFECT ? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN HOLDING THAT IN VIEW O F THE PROVISIONS OF S. 292B OF THE ACT, THE ASSESSMENT, HAVING IN SU BSTANCE AND EFFECT, BEEN FRAMED ON THE AMALGAMATED COMPANY WHIC H COULD NOT BE REGARDED AS NULL AND VOID ? 10.1 THE HONBLE COURT, AFTER CONSIDERING THE FACTS A ND LAW OBSERVED AND HELD AS UNDER: 5. ACCORDING TO THE TRIBUNAL, IF THE SPICE WAS NON -EXISTENT, THERE WAS NO REASON FOR THE AMALGAMATED COMPANY TO REPRES ENT THE SAME OR TO FEEL AGGRIEVED AGAINST THE SAID ORDER AN D PREFER APPEAL AND GET THE SAME DECIDED ON MERITS. IN OTHER WORDS, ANY APPEAL PREFERRED BY A NON-EXISTENCE PERSON MUST ALSO BE TR EATED AS NON EST . ALL THESE ACTS OF THE APPELLANTS/AMALGAMATED COMP ANY CLEARLY SHOW THAT IT HAD BEEN CONSTANTLY TREATED THE ASSESS MENT MADE I.T.A. NO.3643/DEL/2016 8 AGAINST THE APPELLANT IN RESPECT OF THE ASSESSMENT OF AMALGAMATED COMPANY. FURTHER, NO PREJUDICE IS CAUSED TO THE ASS ESSEE MERELY BECAUSE IN THE BODY OF THE ASSESSMENT ORDER NAME OF THE AMALGAMATED COMPANY IS NOT SHOWN. 6. ON THE AFORESAID REASONING AND ANALYSIS, THE TRIBUN AL SUMMED UP THE POSITION IN PARA 14 OF ITS ORDER WHIC H READS AS UNDER : IN THE LIGHT OF THE DISCUSSIONS MADE ABOVE, WE, TH EREFORE, HOLD THAT THE ASSESSMENT MADE BY THE AO, IN SUBSTAN CE AND EFFECT, IS NOT AGAINST THE NON-EXISTENT AMALGAMATIN G COMPANY. HOWEVER, WE DO AGREE WITH THE PROPOSITION OR RATIO DECIDED IN THE VARIOUS CASES RELIED UPON BY THE LEA RNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSMENT MADE A GAINST NON-EXISTENT PERSON WOULD BE INVALID AND LIABLE TO BE STRUCK DOWN. BUT, IN THE PRESENT CASE, WE FIND THAT THE AS SESSMENT, IN SUBSTANCE AND EFFECT, HAS BEEN MADE AGAINST AMALGAMATED COMPANY IN RESPECT OF ASSESSMENT OF INC OME OF AMALGAMATING COMPANY FOR THE PERIOD PRIOR TO AMALGA MATION AND MERE OMISSION TO MENTION THE NAME OF AMALGAMATE D COMPANY ALONG WITH THE NAME OF AMALGAMATING COMPANY IN THE BODY OF ASSESSMENT AGAINST THE ITEM 'NAME OF TH E ASSESSEE' IS NOT FATAL TO THE VALIDITY OF ASSESSMEN T BUT IS A PROCEDURAL DEFECT COVERED BY S. 292B OF THE ACT. WE HOLD ACCORDINGLY. 7. THE AFORESAID LINE OF REASONING ADOPTED BY THE TRI BUNAL IS CLEARLY BLEMISHED WITH LEGAL LOOPHOLES AND IS CONTR ARY TO LAW. NO DOUBT, M/S SPICE WAS AN ASSESSEE AND AS AN INCORPOR ATED COMPANY AND WAS IN EXISTENCE WHEN IT FILED THE RETU RNS IN RESPECT OF TWO ASSESSMENT YEARS IN QUESTION, HOWEVER, BEFOR E THE CASE COULD BE SELECTED FOR SCRUTINY AND ASSESSMENT PROCE EDINGS COULD BE INITIATED, M/S SPICE GOT AMALGAMATED WITH MCORP (P) LTD. IT WAS THE RESULT OF THE SCHEME OF THE AMALGAMATION FILED BEFO RE THE COMPANY JUDGE OF THIS COURT WHICH WAS DULY SANCTIONED VIDE ORDERS DT. 11TH FEB., 2004. WITH THIS AMALGAMATION MADE EFFECTIVE F ROM 1ST JULY, 2003, M/S SPICE CEASED TO EXIST. THAT IS THE PLAIN AND SIMPLE EFFECT IN LAW. THE SCHEME OF AMALGAMATION ITSELF PROVIDED FOR THIS CONSEQUENCE, INASMUCH AS SIMULTANEOUS WITH THE SANC TIONING OF THE I.T.A. NO.3643/DEL/2016 9 SCHEME, M/S SPICE WAS ALSO STOOD DISSOLVED BY SPECI FIC ORDER OF THIS COURT. WITH THE DISSOLUTION OF THIS COMPANY, I TS NAME WAS STRUCK OFF FROM THE ROLLS OF COMPANIES MAINTAINED B Y THE ROC. 8. A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES A CT IS A JURISTIC PERSON. IT TAKES ITS BIRTH AND GETS LIFE W ITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW THAT ON AMALGAMATION, THE AMAL GAMATING COMPANY CEASES TO EXIST IN THE EYES OF LAW. THIS PO SITION IS EVEN ACCEPTED BY THE TRIBUNAL IN PARA 14 OF ITS ORDER EX TRACTED ABOVE. HAVING REGARD TO THIS CONSEQUENCE PROVIDED IN LAW, IN NUMBER OF CASES, THE SUPREME COURT HELD THAT ASSESSMENT UPON A DISSOLVED COMPANY IS IMPERMISSIBLE AS THERE IS NO PROVISION I N INCOME-TAX CAN TO MAKE AN ASSESSMENT THEREUPON. IN THE CASE OF SARASWATI INDUSTRIAL SYNDICATE LTD. VS. CIT (1990) 88 CTR (SC ) 61: (1990) 186 ITR 278 (SC) THE LEGAL POSITION IS EXPLAINED IN THE FOLLOWING TERMS: THE QUESTION IS WHETHER ON THE AMALGAMATION OF THE INDIAN SUGAR COMPANY WITH THE APPELLANT COMPANY, THE INDIA N SUGAR COMPANY CONTINUED TO HAVE ITS ENTITY AND WAS ALIVE FOR THE PURPOSES OF S. 41(1) OF THE ACT ? THE AMALGAMATION OF THE TWO COMPANIES WAS EFFECTED UNDER THE ORDER OF THE HIGH COURT IN PROCEEDINGS UNDER S. 391 R/W S. 394 OF THE COMPANIE S ACT. THE SARASWATI INDUSTRIAL SYNDICATE, THE TRANSFEREE COMP ANY WAS A SUBSIDIARY OF THE INDIAN SUGAR COMPANY, NAMELY, THE TRANSFEROR COMPANY. UNDER THE SCHEME OF AMALGAMATION THE INDIA N SUGAR COMPANY STOOD DISSOLVED ON 29TH OCT., 1962 AND IT C EASED TO BE IN EXISTENCE THEREAFTER. THOUGH THE SCHEME PROVI DED THAT THE TRANSFEREE COMPANY THE SARASWATI INDUSTRIAL SYNDICA TE LTD. UNDERTOOK TO MEET ANY LIABILITY OF THE INDIAN SUGAR COMPANY WHICH THAT COMPANY INCURRED OR IT COULD INCUR, ANY LIABILITY, BEFORE THE DISSOLUTION OR NOT THEREAFTER. I.T.A. NO.3643/DEL/2016 10 GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CH ANGE AND THE RIGHTS OF THE SHAREHOLDERS AND CREDITORS ARE VA RIED, IT AMOUNTS TO RECONSTRUCTION OR REORGANISATION OF SCHE ME OF ARRANGEMENT. IN AMALGAMATION TWO OR MORE COMPANIES ARE FUSED INTO ONE BY MERGER OR BY TAKING OVER BY ANOTH ER. RECONSTRUCTION OR AMALGAMATION HAS NO PRECISE LEGAL MEANING. THE AMALGAMATION IS A BLENDING OF TWO OR MORE EXIST ING UNDERTAKINGS INTO ONE UNDERTAKING, THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAREHOLD ERS IN THE COMPANY WHICH IS TO CARRY ON THE BLENDED UNDERTAKIN GS. THERE MAY BE AMALGAMATION EITHER BY THE TRANSFER OF TWO O R MORE UNDERTAKINGS TO A NEW COMPANY, OR BY THE TRANSFER O F 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 ITS UNDERTAKING BUT THE CONTEXT IN WHICH THE TERM IS USED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISITION. SEE HALSBURYS LAWS OF ENGLAND 4TH EDITION VOL. 7 PARA 1539 . TWO COMPANIES MAY JOIN TO FORM A NEW COMPANY, BUT THERE MAY BE ABSORPTION OR BLENDIN G 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. 9. THE COURT REFERRED TO ITS EARLIER JUDGMENT IN GENERAL RADIO & APPLIANCES CO. LTD. VS. M.A. KHADER (1986) 60 COMP CAS 1013 (SC). IN VIEW OF THE AFORESAID CLINCHING POSITION I N LAW, IT IS DIFFICULT TO DIGEST THE CIRCUITOUS ROUTE ADOPTED BY THE TRIBU NAL HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMAT ED COMPANY AND THERE WAS ONLY A PROCEDURAL DEFECT. I.T.A. NO.3643/DEL/2016 11 10. SEC. 481 OF THE COMPANIES ACT PROVIDES FOR DISSOLU TION OF THE COMPANY. THE COMPANY JUDGE IN THE HIGH COURT CAN OR DER DISSOLUTION OF A COMPANY ON THE GROUNDS STATED THER EIN. THE EFFECT OF THE DISSOLUTION IS THAT THE COMPANY NO MORE SURV IVES. THE DISSOLUTION PUTS AN END TO THE EXISTENCE OF THE COM PANY. IT IS HELD IN M.H. SMITH (PLANT HIRE) LTD. VS. D.L. MAINWARING (T /A INSHORE) (1986) BCLC 342 (CA) THAT ONCE A COMPANY IS DISSOLVED IT BECOMES A NON-EXISTENT PARTY AND THEREFORE NO ACTIO N CAN BE BROUGHT IN ITS NAME. THUS AN INSURANCE COMPANY WHIC H WAS SUBROGATED TO THE RIGHTS OF ANOTHER INSURED COMPANY WAS HELD NOT TO BE ENTITLED TO MAINTAIN AN ACTION IN THE NAME OF THE COMPANY AFTER THE LATTER HAD BEEN DISSOLVED. 11. AFTER THE SANCTION OF THE SCHEME ON 11TH FEB., 200 4, THE SPICE CEASED TO EXIST W.E.F. 1ST JULY, 2003. EVEN I F SPICE HAD FILED THE RETURNS, IT BECAME INCUMBENT UPON THE IT AUTHOR ITIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID 'DEAD PERSON'. WHEN NOTICE UNDER S. 143(2) WAS SENT, THE APPELLANT/AMAL GAMATED COMPANY APPEARED AND BROUGHT THIS FACT TO THE KNOWL EDGE OF THE AO. HE, HOWEVER, DID NOT SUBSTITUTE THE NAME OF THE APPELLANT ON RECORD. INSTEAD, THE AO MADE THE ASSESSMENT IN THE NAME OF M/S SPICE WHICH WAS NON-EXISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AN ASSESSMENT ORDER PASSED IN THE NAME OF M/S SPICE WOULD CLEARLY BE VOID. SUCH A DEFECT CANNOT BE TREA TED AS PROCEDURAL DEFECT. MERE PARTICIPATION BY THE APPELL ANT WOULD BE OF NO EFFECT AS THERE IS NO ESTOPPEL AGAINST LAW. 12. ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON-EXISTING ENTITY, IT DOES NOT REMAIN A PROCEDURA L IRREGULARITY OF THE NATURE WHICH COULD BE CURED BY INVOKING THE PRO VISIONS OF S. 292B OF THE ACT. SEC. 292B OF THE ACT READS AS UNDE R : 292B . NO RETURN OF INCOME ASSESSMENT, NOTICE, SUMMONS O R OTHER PROCEEDINGS FURNISHED OR MADE OR ISSUED OR TA KEN OR I.T.A. NO.3643/DEL/2016 12 PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT S HALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASONS OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF I NCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CONFORMIT Y WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. 13. THE PUNJAB & HARYANA HIGH COURT STATED THE EFFECT OF THIS PROVISION IN CIT VS. NORTON MOTORS (2006) 200 CTR (P&H) 604 : (2005) 275 ITR 595 (P&H) IN THE FOLLOWING MANNER : A READING OF THE ABOVE REPRODUCED PROVISION MAKES IT CLEAR THAT A MISTAKE, DEFECT OR OMISSION IN THE RETURN OF INCO ME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS NOT SUFFICIENT TO INVALIDATE AN ACTION TAKEN BY THE COM PETENT AUTHORITY, PROVIDED THAT SUCH RETURN OF INCOME, ASS ESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE PROVISIONS O F THE ACT. TO PUT IT DIFFERENTLY, S. 292B CAN BE RELIED UPON FOR RESISTING A CHALLENGE TO THE NOTICE, ETC., ONLY IF THERE IS A T ECHNICAL DEFECT OR OMISSION IN IT. HOWEVER, THERE IS NOTHING IN THE PL AIN LANGUAGE OF THAT SECTION FROM WHICH IT CAN BE INFERRED THAT THE SAME CAN BE RELIED UPON FOR CURING A JURISDICTIONAL DEFECT I N THE ASSESSMENT NOTICE, SUMMONS OR OTHER PROCEEDING. IN OTHER WORDS, IF THE NOTICE, SUMMONS OR OTHER PROCEEDING T AKEN BY AN AUTHORITY SUFFERS FROM AN INHERENT LACUNA AFFECTING HIS/ITS JURISDICTION, THE SAME CANNOT BE CURED BY HAVING RE SORT TO S. 292B. 14. THE ISSUE AGAIN CROPPED UP BEFORE THE COURT IN CIT VS. HARJINDER KAUR (2009) 222 CTR (P&H) 254 : (2009) 19 DTR (P&H) 211 . THAT WAS A CASE WHERE RETURN IN QUESTION FILED BY THE I.T.A. NO.3643/DEL/2016 13 ASSESSEE WAS NEITHER SIGNED BY THE ASSESSEE NOR VER IFIED IN TERMS OF THE MANDATE OF S. 140 OF THE ACT. THE COURT WAS OF THE OPINION THAT SUCH A RETURN CANNOT BE TREATED AS RETURN EVEN A RETURN FILED BY THE ASSESSEE AND THIS INHERENT DEFECT COULD NOT BE CURED IN SPITE OF THE DEEMING EFFECT OF S. 292B OF THE ACT. THEREFORE , THE RETURN WAS ABSOLUTELY INVALID AND ASSESSMENT COULD NOT BE MADE ON A INVALID RETURN. IN THE PROCESS, THE COURT OBSERVED AS UNDER : HAVING GIVEN OUR THOUGHTFUL CONSIDERATION TO THE S UBMISSIONS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT, WE ARE OF THE VIEW THAT THE PROVISIONS OF S. 292B OF THE 1961 ACT DO NOT AUTHORIZE THE AO TO IGNORE A DEFECT OF A SUBSTANTIV E NATURE AND IT IS, THEREFORE, THAT THE AFORESAID PROVISION CATE GORICALLY RECORDS THAT A RETURN WOULD NOT BE TREATED AS INVALID, IF T HE SAME 'IN SUBSTANCE AND EFFECT IS IN CONFORMITY WITH OR ACCOR DING TO THE INTENT AND PURPOSE OF THIS ACT'. INSOFAR AS THE RET URN UNDER REFERENCE IS CONCERNED, IN TERMS OF S. 140 OF THE 1 961 ACT, THE SAME CANNOT BE TREATED TO BE EVEN A RETURN FILED BY THE RESPONDENT ASSESSEE, AS THE SAME DOES NOT EVEN BEAR HER SIGNATURES AND HAD NOT EVEN BEEN VERIFIED BY HER. I N THE AFORESAID VIEW OF THE MATTER, IT IS NOT POSSIBLE FO R US TO ACCEPT THAT THE RETURN ALLEGEDLY FILED BY THE ASSESSEE WAS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE I NTENT AND PURPOSE OF THIS ACT. THUS VIEWED, IT IS NOT POSSIBL E FOR US TO ACCEPT THE CONTENTION ADVANCED BY THE LEARNED COUNS EL FOR THE APPELLANT ON THE BASIS OF S. 292B OF THE 1961 ACT. THE RETURN UNDER REFERENCE, WHICH HAD BEEN TAKEN INTO CONSIDER ATION BY THE REVENUE, WAS AN ABSOLUTELY INVALID RETURN AS IT HAD A GLARING INHERENT DEFECT WHICH COULD NOT BE CURED IN SPITE OF THE DEEMING EFFECT OF S. 292B OF THE 1961 ACT. 15. LIKEWISE, IN THE CASE OF SRI NATH SURESH CHAND RAM NARESH VS. CIT (2005) 196 CTR (ALL) 416 : (2006) 280 ITR 3 96 (ALL), THE I.T.A. NO.3643/DEL/2016 14 ALLAHABAD HIGH COURT HELD THAT THE ISSUE OF NOTICE UNDER S. 148 OF THE IT ACT IS A CONDITION PRECEDENT TO THE VALIDITY OF ANY ASSESSMENT ORDER TO BE PASSED UNDER S. 147 OF THE ACT AND WHEN SUCH A NOTICE IS NOT ISSUED AND ASSESSMENT MADE, SUCH A DEFECT CA NNOT BE TREATED AS CURED UNDER S. 292B OF THE ACT. THE COUR T OBSERVED THAT THIS PROVISION CONDONES THE INVALIDITY WHICH ARISES MERELY BY MISTAKE, DEFECT OR OMISSION IN A NOTICE, IF IN SUBS TANCE AND EFFECT IT IS IN CONFORMITY WITH OR ACCORDING TO THE INTENT AN D PURPOSE OF THIS ACT. SINCE NO VALID NOTICE WAS SERVED ON THE ASSESS EE TO REASSESS THE INCOME, ALL THE CONSEQUENT PROCEEDINGS WERE NUL L AND VOID AND IT WAS NOT A CASE OF IRREGULARITY. THEREFORE, S. 29 2B OF THE ACT HAD NO APPLICATION. 16. WHEN WE APPLY THE RATIO OF AFORESAID CASES TO THE FACTS OF THIS CASE, THE IRRESISTIBLE CONCLUSION WOULD BE PRO VISIONS OF S. 292B OF THE ACT ARE NOT APPLICABLE IN SUCH A CASE. THE F RAMING OF ASSESSMENT AGAINST A NON-EXISTING ENTITY/PERSON GOE S TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY B UT A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. 17. THE ORDER OF THE TRIBUNAL IS, THEREFORE, CLEARLY U NSUSTAINABLE. WE, THUS, DECIDE THE QUESTIONS OF LAW IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND ALLOW THESE APPEALS. 18. WE MAY, HOWEVER, POINT OUT THAT THE RETURNS WERE F ILED BY M/S SPICE ON THE DAY WHEN IT WAS IN EXISTENCE IT WO ULD BE PERMISSIBLE TO CARRY OUT THE ASSESSMENT ON THE BASI S OF THOSE RETURNS AFTER TAKING THE PROCEEDINGS AFRESH FROM TH E STAGE OF ISSUANCE OF NOTICE UNDER S. 143(2) OF THE ACT. IN T HESE CIRCUMSTANCES, IT WOULD BE INCUMBENT UPON THE AO TO FIRST SUBSTITUTE THE NAME OF THE APPELLANT IN PLACE OF M/ S SPICE AND THEN ISSUE NOTICE TO THE APPELLANT. HOWEVER, SUCH A COUR SE OF ACTION CAN BE TAKEN BY THE AO ONLY IF IT IS STILL PERMISSIBLE AS PER LAW AND HAS NOT BECOME TIME-BARRED. I.T.A. NO.3643/DEL/2016 15 11. THUS, IT WAS HELD THAT ASSESSMENT FRAMED ON A NON- EXISTENT ENTITY IS NOT SUSTAINABLE IN THE EYES OF LAW, AS IT IS A JURISDICTIONAL DEFECT AND IS NOT A MERE PROCEDURAL DEFECT AND EVEN SE CTION 292B CANNOT COME TO THE RESCUE. THE DECISION IN THE CASE OF SPICE INFOTAINMENT LTD. (SUPRA) HAS BEEN AFFIRMED BY THE HON BLE SUPREME COURT IN CIVIL APPEAL NO. 285 OF 2014 VIDE O RDER DATED 02.11.2017. 11.2 FURTHER, HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DIMENSION APPARELS P. LTD. [2015] 370 ITR 288 (DELH I) , RELYING ON THE DECISION IN THE CASE OF SPICE INFOTAINMENT LTD. ( SUPRA) HAS HELD AS UNDER: 6. SECTIONS 170(1) AND 170(2) OF THE ACT DO NOT ASSIS T THE REVENUE IN THEIR CASE. THE REVENUE DOES NOT CONTEST THAT IN A CASE OF AMALGAMATION, THE PREDECESSOR (BEING A DISSOLVED COMPANY) 'CANNOT BE FOUND'. CONSEQUENTLY, SECTION 1 70(2) APPLIES. THIS PROVISION CLARIFIES THAT WHERE THE PREDECESSOR CANNOT BE FOUND, 'THE ASSESSMENT OF THE INCOME OF THE PREVIOUS YEAR IN WHICH THE SUCCESSION TOOK PLACE UP TO THE DATE OF THE SUCCESS ION AND OF THE PRECIOUS YEAR PRECEDING THAT YEAR SHALL BE MADE ON THE SUCCESSOR IN LIKE MANNER AND TO THE SAME EXTENT AS IT WOULD HAVE BEEN MADE ON THE PREDECESSOR.' (EMPHASIS IN IT ALICS SUPPLIED) 7. THE REVENUE SEEMS TO ARGUE THAT THE ASSESSMENT IS JUSTIFIED BECAUSE THE LIABILITIES OF THE AMALGAMATING COMPANY ACCRUE TO THE AMALGAMATED (TRANSFEREE) COMPANY. WHILE THAT IS TRU E, THE QUESTION HERE IS WHICH ENTITY MUST THE ASSESSMENT BE MADE ON . THE TEXT OF SECTION 170(2) MAKES IT CLEAR THAT THE ASSESSMENT M UST BE MADE ON THE SUCCESSOR (I.E., THE AMALGAMATED COMPANY). I.T.A. NO.3643/DEL/2016 16 8. THE SUPREME COURT, IN SARASWATI INDUSTRIAL SYNDICA TE LTD. (SUPRA) HELD THAT 'AFTER THE AMALGAMATION OF THE TWO COMPANIES THE TRANSFEROR COMPANY CEASED TO HAVE ANY ENTITY AND TH E AMALGAMATED COMPANY ACQUIRED A NEW STATUS AND IT WA S NOT POSSIBLE TO TREAT THE TWO COMPANIES AS PARTNERS OR JOINTLY LIABLE IN RESPECT OF THEIR LIABILITIES AND ASSETS.' (EMPHA SIS SUPPLIED) 9. WITH RESPECT TO THE SPECIFIC ISSUE OF ASSESSMENT, I N VIVED MARKETING SERVICING (P.) LTD. (SUPRA) THE COURT OBS ERVED THAT : 'WHEN THE ASSESSING OFFICER PASSED THE ORDER OF ASS ESSMENT AGAINST THE RESPONDENT COMPANY, IT HAD ALREADY BEEN DISSOLVED AND STRUCK OFF THE REGISTER OF THE REGISTRAR OF COM PANIES U/S 560 OF THE COMPANIES ACT. IN THESE CIRCUMSTANCES, T HE TRIBUNAL RIGHTLY HELD THAT THERE COULD NOT HAVE BEEN ANY ASS ESSMENT ORDER PASSED AGAINST THE COMPANY WHICH WAS NOT IN E XISTENCE AS ON THAT DATE IN THE EYES OF LAW IT HAD ALREADY B EEN DISSOLVED.' (EMPHASIS SUPPLIED) 10. VIVED MARKETING SERVICING (P.) LTD. (SUPRA) ALSO NO TED THAT SECTION 176 OF THE IT ACT, WHICH CONTAINS PROVISION S PERTAINING TO A DISCONTINUATION OF BUSINESS, DOES NOT APPLY TO A CASE OF AMALGAMATION/DISSOLUTION. IT WAS ALSO HELD THAT SEC TION 159 OF THE ACT, WHICH PROVIDES FOR TAX LIABILITY TO BE ATTACHE D TO THE LEGAL REPRESENTATIVES OF A DECEASED PERSON, IS LIKEWISE I NAPPLICABLE. THE LANGUAGE OF SECTION 159 EVIDENTLY ONLY APPLIES TO N ATURAL PERSONS, AND CANNOT BE EXTENDED, THROUGH A LEGAL FICTION, TO THE DISSOLUTION OF COMPANIES. 11. MARSHALL SONS AND CO. (SUPRA), IS RELIED ON BY THE REVENUE. IT WAS HELD IN THAT JUDGMENT THAT 'THE TRANSFEROR-COMPANY SHALL, WITH EFFECT FROM THE TRANSFER DATE, BE DEEMED TO HAVE CARRIED ON ITS BUSINESS FOR AND ON BEHALF OF THE TRANSFEREE-COMPANY AND, ACCORDINGLY, THE PROFITS I.T.A. NO.3643/DEL/2016 17 AND LOSSES OF THE TRANSFEROR- COMPANY FOR THE PERIO D COMMENCING FROM THE TRANSFER DATE, SHALL BE DEEMED TO BE THE PROFITS OR LOSSES OF THE TRANSFEREE-COMPANY AND SHA LL BE AVAILABLE TO THE TRANSFEREE-COMPANY FOR DISPOSAL IN ANY MANNER ..' 12. THAT CASE, HOWEVER, INVOLVED A CONTROVERSY ABOUT TH E EFFECTIVE DATE OF AMALGAMATION, AND NOT ABOUT WHETH ER AN ASSESSMENT OF INCOME CAN BE MADE ON AN AMALGAMATED COMPANY. IN FACT, THE LOGIC OF THE MADRAS HIGH COURT'S DECIS ION UNDERMINES THE APPELLANTS' CASE. THE MADRAS HIGH COURT FOUND F OR THE REVENUE, BECAUSE, IN ITS OPINION, THE EFFECTIVE DATE OF AMAL GAMATION CAME AFTER THE DATE OF THE ASSESSMENT. THE ASSESSEE ARGU ED THAT THE DATE OF AMALGAMATION WAS JANUARY 1, 1982, WHEREAS T HE ASSESSMENT ORDER WAS DATED NOVEMBER 25, 1984. 13. THE MADRAS HIGH COURT HELD THAT ' ACCORDING TO THE RECORDS MAINTAINED PURSUANT TO THE PROVISIONS OF THE COMPANIES ACT, THE SUBSIDIARY COM PANY HAD CONTINUED TO REMAIN IN EXISTENCE UP TO JANUARY 21, 1986, EVEN LONG AFTER JANUARY 1, 1982.' 14. ON THIS BASIS, IT HELD THE ASSESSEE LIABLE. THIS OB VIOUSLY IMPLIES THAT HAD THE COMPANY NOT BEEN IN EXISTENCE AT THE TIME OF THE ASSESSMENT ORDER, IT WOULD NOT HAVE BEEN LIABLE . 15. IN SPICE ENTERTAINMENT LTD. (SUPRA), THIS COURT, AF TER DISCUSSING THE LAW DECLARED BY THE SUPREME COURT IN SARASWATI INDUSTRIAL SYNDICATE LTD. (SUPRA) STATED THAT: '9. THE COURT REFERRED TO ITS EARLIER JUDGMENT IN G ENERAL RADIO AND APPLIANCES CO. LTD. V. M.A. KHADER [1986] 60 CO MP CASE 1013. IN VIEW OF THE AFORESAID CLINCHING POSITION I N LAW, IT IS DIFFICULT TO DIGEST THE CIRCUITOUS ROUTE ADOPTED BY THE TRIBUNAL I.T.A. NO.3643/DEL/2016 18 HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMATED COMPANY AND THERE WAS ONLY A PROCEDURAL DEFECT. 10. SECTION 481 OF THE COMPANIES ACT PROVIDES FOR D ISSOLUTION OF THE COMPANY. THE COMPANY JUDGE IN THE HIGH COURT CAN ORDER DISSOLUTION OF A COMPANY ON THE GROUNDS STATE D THEREIN. THE EFFECT OF THE DISSOLUTION IS THAT THE COMPANY N O MORE SURVIVES. THE DISSOLUTION PUTS AN END TO THE EXISTE NCE OF THE COMPANY. IT IS HELD IN M.H. SMITH (PLANT HIRE) LTD. V. D.L. MAINWARING (T/A INSHORE), 1986 BCLC 342 (CA) THAT ' ONCE A COMPANY IS DISSOLVED IT BECOMES A NON-EXISTENT PART Y AND THEREFORE NO ACTION CAN BE BROUGHT IN ITS NAME. THU S AN INSURANCE COMPANY WHICH WAS SUBROGATED TO THE RIGHT S OF ANOTHER INSURED COMPANY WAS HELD NOT TO BE ENTITLED TO MAINTAIN AN ACTION IN THE NAME OF THE COMPANY AFTER THE LATTER HAD BEEN DISSOLVED. 11. AFTER THE SANCTION OF THE SCHEME ON 11TH APRIL, 2004, THE SPICE CEASES TO EXIT W.E.F 1ST JULY, 2003. EVEN IF SPICE HAD FILED THE RETURNS, IT BECAME INCUMBENT UPON THE INC OME TAX AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID 'DEAD PERSON'. WHEN NOTICE UNDER SECTION 143 (2) WA S SENT, THE APPELLANT/AMALGAMATED COMPANY APPEARED AND BROU GHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE, HOWEVER, DID NOT SUBSTITUTE THE NAME OF THE APPELLANT ON RECORD. INS TEAD, THE ASSESSING OFFICER MADE THE ASSESSMENT IN THE NAME O F M/S SPICE WHICH WAS NON EXISTING ENTITY ON THAT DAY IN SUCH PROCEEDINGS AND ASSESSMENT ORDER PASSED IN THE NAME OF M/S SPICE WOULD CLEARLY BE VOID. SUCH A DEFECT CANN OT BE TREATED AS PROCEDURAL DEFECT. MERE PARTICIPATION BY THE APPELLANT WOULD BE OF NO EFFECT AS THERE IS NO ESTO PPEL AGAINST LAW.' I.T.A. NO.3643/DEL/2016 19 16. THE AUTHORITY OF THE ABOVE PRECEDENT BINDS US; WE S EE NO REASON TO DIFFER FROM THE LOGIC AND REASONING IN SP ICE ENTERTAINMENT LTD. (SUPRA). 17. THE OTHER ASPECT IS AS TO THE APPLICABILITY OF SEC TION 292-B OF THE ACT, WHICH READS AS FOLLOWS: '292B. NO RETURN OF INCOME ASSESSMENT, NOTICE, SUMM ONS OR OTHER PROCEEDINGS FURNISHED OR MADE OR ISSUE OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASONS OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEE DING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMO NS OR OTHER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CON FORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT.' 18. THE REVENUE ARGUES THAT THE ASSESSMENT WAS IN SUBS TANCE AND EFFECT IN CONFORMITY WITH THE ACT, BECAUSE THE ASSESSING OFFICER HAD USED CORRECT NOMENCLATURE IN WRITING THE NAME O F THE ASSESSEE, ALONG WITH THE FACT THAT THE COMPANY HAD AMALGAMATE D, AS WELL AS THE CORRECT ADDRESS OF THE AMALGAMATED COMPANY. CON SEQUENTLY, THEY CONTEND THAT 'THE MERE OMISSION, IF ANY ON THE PART OF THE AO TO MENTION THE NAME OF THE APPELLANT/AMALGAMATED COMPANY IN PLACE OF M/S DIMENSION APPAREL [IS]THEREFORE A PROCEDURAL DEFE CT.' 19. THE QUESTION OF WHETHER AN ASSESSMENT UPON AN AMALGAMATED COMPANY IS A MISTAKE WITHIN THE MEANING OF SECTION 292B WAS RAISED AND ANSWERED BY THE DELHI HIGH COUR T IN SPICE ENTERTAINMENT LTD. (SUPRA). IN THAT CASE, THE TRIBU NAL HAD HELD THAT 'THE ASSESSMENT IN SUBSTANCE AND EFFECT HAS BEEN MA DE AGAINST AMALGAMATED COMPANY IN RESPECT OF ASSESSMEN T OF I.T.A. NO.3643/DEL/2016 20 INCOME OF AMALGAMATING COMPANY FOR THE PERIOD PRIOR TO AMALGAMATION AND MERE OMISSION TO MENTION THE NAME OF AMALGAMATED COMPANY ALONGWITH THE NAME OF AMALGAMAT ING COMPANY IN THE BODY OF ASSESSMENT AGAINST THE ITEM 'NAME OF THE ASSESSEE' IS NOT FATAL TO THE VALIDITY OF ASSES SMENT BUT IS A PROCEDURAL DEFECT COVERED BY SECTION 292B OF THE AC T.' (EMPHASIS SUPPLIED) 20. THIS COURT REJECTED THIS ARGUMENT, HOLDING THAT 'IT [BECOMES] INCUMBENT UPON THE INCOME TAX AUTHORI TIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID 'DEAD PERSON'. SUCH A DEFECT CANNOT BE TREATED AS PROCEDURAL DEFECT... ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON- EXISTING ENTITY IT DOES NOT REMAIN A PROCEDURAL IRREGULARITY OF THE NATURE WHICH COULD BE CURED BY INVOKING THE PROVISIONS OF SECTION 292B OF THE ACT.' (EMPHASIS SUPPLIED) 21. IN SPICE ENTERTAINMENT LTD. (SUPRA) THE REASON FOR THE INAPPLICABILITY OF SECTION 292-B WAS ADDITIONALLY P REMISED ON THE DECISION OF THE PUNJAB & HARYANA HIGH COURT IN CIT V. NORTON MOTOR, [2005] 275 ITR 595/146 TAXMAN 701, THAT WHIL E SECTION 292B CAN CURE TECHNICAL DEFECTS, IT CANNOT CURE A ' JURISDICTIONAL DEFECT IN THE ASSESSMENT NOTICE.'IN SPICE ENTERTAIN MENT LTD. (SUPRA), THEREFORE, THIS COURT EXPRESSLY CLASS IFIED 'THE FRAMING OF ASSESSMENT AGAINST A NON-EXISTING ENTITY/PERSON' AS A JURISDICTIONAL DEFECT. THIS HAS BEEN A CONSISTENT P OSITION. AS EARLY AS 1960, IN CIT V. EXPRESS NEWSPAPERS LTD. [1960] 4 0 ITR 38 (MAD), THE MADRAS HIGH COURT HELD THAT 'THERE CANNOT BE AN ASSESSMENT OF NON-EXISTENT PERS ON. . . THE ASSESSMENT IN THE INSTANT CASE WAS MADE LONG AFTER THE FREE PRESS COMPANY WAS STUCK OFF FROM THE REGISTER OF TH E COMPANIES, AND IT COULD NOT BE VALID.' (EMPHASIS SU PPLIED) I.T.A. NO.3643/DEL/2016 21 22. ON THE LAST CONTENTION, I.E WITH RESPECT TO PARTICI PATION BY THE PREVIOUS ASSESSEE, I.E THE AMALGAMATING COMPANY (WH ICH CEASES TO EXIST), AGAIN SPICE ENTERTAINMENT LTD. (SUPRA) IS C ATEGORICAL; IT WAS RULED ON THAT OCCASION THAT SUCH PARTICIPATION BY T HE AMALGAMATED COMPANY IN PROCEEDINGS DID NOT CURE THE DEFECT, BEC AUSE 'THERE CAN BE NO ESTOPPEL IN LAW.' VIVED MARKETING SERVICING ( P.) LTD. (SUPRA) HAD ALSO REACHED THE SAME CONCLUSION. 23. IT IS THUS CLEAR THAT ALL CONTENTIONS SOUGHT TO BE URGED BY THE REVENUE ARE IN RESPECT OF FAMILIAR GROUNDS, WHICH H AVE BEEN RULED UPON, AGAINST IT, CONSISTENTLY IN TWO DECISIONS OF THIS COURT. THEREFORE, NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL. 24. ACCORDINGLY, THERE IS NO MERIT IN THE APPEALS; THE Y ARE ACCORDINGLY DISMISSED ALONG WITH THE PENDING APPLIC ATIONS WITHOUT ANY ORDER AS TO COSTS. 11.2 FURTHER, HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS MICRA INDIA PVT. LTD. [2015] 231 TAXMAN 809 (DELHI) HAS HELD AS UNDER: 10. IN THE PRESENT CASE, NO DOUBT THERE WAS PARTICIPAT ION DURING THE COURSE OF ASSESSMENT; HOWEVER, THE AO, DESPITE BEING TOLD THAT THE ORIGINAL COMPANY WAS NO LONGER IN EXISTENCE, DI D NOT TAKE REMEDIAL MEASURES AND DID NOT TRANSPOSE THE TRANSFE REE AS THE COMPANY WHICH HAD TO BE ASSESSED. INSTEAD, HE RESOR TED TO A PECULIAR PROCEDURE OF DESCRIBING THE ORIGINAL ASSES SEE AS THE ONE IN EXISTENCE; THE ORDER ALSO MENTIONED THE TRANSFEREE' S NAME BELOW THAT OF M/S MICRA INDIA PVT. LTD. NOW, THAT DID NOT LEAD TO THE ASSESSMENT BEING COMPLETED IN THE NAME OF THE TRANS FEREE COMPANY. ACCORDING TO THE AO, M/S MICRA INDIA PVT. LTD. WAS STILL IN EXISTENCE. CLEARLY, THIS WAS A CASE WHERE THE ASSES SMENT WAS CONTRARY TO LAW, AS HAVING BEING COMPLETED AGAINST A NON-EXISTENT I.T.A. NO.3643/DEL/2016 22 COMPANY. THE ITAT'S DECISION IS, IN THE CIRCUMSTANC ES, JUSTIFIED AND WARRANTED. 11.3 FURTHER, HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS MARUTI SUZUKI INDIA LTD. [2017] 397 ITR 681 (DELHI) HAS HELD AS UNDER: 7. ON 29TH DECEMBER 2015, THE AO PASSED THE ASSESS MENT ORDER UNDER SECTION 143 (3) READ WITH SECTION 144C (1) OF THE ACT IN WHICH THE NAME AND ADDRESS OF THE ASSESSEE WAS SHOW N AS: 'M/S. SUZUKI POWERTRAIN INDIA LTD (AMALGAMATED WITH M/S MARUTI SUZUKI INDIA LTD)., PLOT NO 1, NELSON MANDEL A ROAD, VASANT KUNJ, NEW DELHI-110070' X X X X X X X 12. EVEN THEREAFTER THE REVENUE HAS REPEATEDLY BROU GHT THE SAID ISSUE BEFORE THIS COURT IN A LARGE NUMBER OF CASES WHERE, IN MORE OR LESS IDENTICAL CIRCUMSTANCES, THE AO HAD PASSED THE ASSESSMENT ORDER IN THE NAME OF THE ENTITY THAT HAD CEASED TO EXIST AS ON THE DATE OF THE ASSESSMENT ORDER. IN MANY OF THESE CASE S, AS IN THE PRESENT CASE, THE AO, AFTER MENTIONING THE NAME OF THE AMALGAMATING COMPANY AS THE ASSESSEE, MENTIONED BEL OW IT THE NAME OF THE AMALGAMATED COMPANY. ILLUSTRATIVELY THE CASES ARE: (I) CIT V MICRA INDIA (P.) LTD. [2015] 231 TAXMAN 8 09 (DEL); (II) CIT V. MICRON STEELS (P.) LTD. [2015] 372 ITR 386/233 TAXMAN 120 (DEL) (III) CIT V. DIMENSION APPARELS (P.) LTD. [2015] 370 ITR 288 (DEL) (IV) BDR BUILDERS & DEVELOPERS (P.) LTD. V. ASSTT. CIT (DECISION DATED 26TH JULY 2017 PASSED BY THIS COURT IN W.P.(C ) NO. 2712 OF 2016) 12. FURTHER, WE FIND THAT IN THE CASE OF SKY LIGHT HOSPI TALITY LLP VS. ACIT [2018] 405 ITR 296 (DELHI) RELIED UPON BY THE LD. DR, THE I.T.A. NO.3643/DEL/2016 23 QUESTION BEFORE THE HONBLE DELHI HIGH COURT WAS WITH REGARD TO THE VALIDITY OF ISSUE OF NOTICE UNDER SECTION 148 IN T HE NAME OF ERSTWHILE PRIVATE LIMITED COMPANY DESPITE COMPANY CEA SING TO EXIST AS IT HAD BEEN CONVERTED INTO LLP. THE HONBLE H IGH COURT UPHELD THE VALIDITY OF THE ISSUE OF NOTICE WITH THE FO LLOWING FINDING IN PARAGRAPH 17 OF THEIR ORDER: 17. IN THE CONTEXT OF THE PRESENT WRIT PETITION, THE A FORESAID RATIO IS A COMPLETE ANSWER TO THE CONTENTION RAISED ON VA LIDITY OF THE NOTICE UNDER SECTION 147/148 OF THE ACT AS IT WAS A DDRESSED TO THE ERSTWHILE COMPANY AND NOT TO THE LIMITED LIABILITY PARTNERSHIP. THERE WAS NO DOUBT AND DEBATE THAT THE NOTICE WAS MEANT F OR THE PETITIONER AND NO ONE ELSE. LEGAL ERROR AND MISTAKE WAS MADE IN ADDRESSING THE NOTICE. NOTICEABLY, THE APPELLANT HA VING RECEIVED THE SAID NOTICE, HAD FILED WITHOUT PREJUDICE REPLY/LETT ER DATED 11.04.2017. THEY HAD OBJECTED TO THE NOTICE BEING I SSUED IN THE NAME OF THE COMPANY, WHICH HAD CEASED TO EXIST. HOW EVER, THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE, THAT THE NOTICE WAS FOR THEM. IT WAS RE PLIED AND DEALT WITH BY THEM. THE FACT THAT NOTICE WAS ADDRESSED TO M/S SKY LIGHT HOSPITALITY PVT. LTD., A COMPANY WHICH HAD BEEN DIS SOLVED, WAS AN ERROR AND TECHNICAL LAPSE ON THE PART OF THE RESPON DENT. NO PREJUDICE WAS CAUSED. 12.1 SIMULTANEOUSLY, CASES WHERE VALIDITY OF ASSESSM ENT ORDER HAD BEEN PASSED IN THE NAME OF NON-EXISTING ASSESSEE WERE DISTINGUISHED AS UNDER: 18. PETITIONER RELIES ON SPICE INFOTAINMENT LTD. V. CI T [2012] 247 CTR 500 (DELHI). SPICE CORP. LTD., THE COMPANY THAT HAD FILED THE RETURN, HAD AMALGAMATED WITH ANOTHER COMPANY. AFTER NOTICE UNDER SECTION 147/148 OF THE ACT WAS ISSUED AND RECEIVED IN THE NAME OF SPICE CORP. LTD., THE ASSESSING OFFICER WAS INFORME D ABOUT I.T.A. NO.3643/DEL/2016 24 AMALGAMATION BUT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF THE AMALGAMATED COMPANY AND NOT IN THE NAME OF A MALGAMATING COMPANY. IN THE SAID SITUATION, THE AMALGAMATING CO MPANY HAD FILED AN APPEAL AND ISSUE OF VALIDITY OF ASSESSMENT ORDER WAS RAISED AND EXAMINED. IT WAS HELD THAT THE ASSESSMEN T ORDER WAS INVALID. THIS WAS NOT A CASE WHEREIN NOTICE UNDER S ECTION 147/148 OF THE ACT WAS DECLARED TO BE VOID AND INVALID BUT A CASE IN WHICH ASSESSMENT ORDER WAS PASSED IN THE NAME OF AND AGAI NST A JURISTIC PERSON WHICH HAD CEASED TO EXIST AND STOOD DISSOLVE D AS PER PROVISIONS OF THE COMPANIES ACT. ORDER WAS IN THE N AME OF NON- EXISTING PERSON AND HENCE VOID AND ILLEGAL. 19. SPICE INFOTAINMENT LTD. (SUPRA) REFERS TO DECISION OF ALLAHABAD HIGH COURT IN SRI NATH SURESH CHAND RAM NARESH V. CIT [ 2006] 280 ITR 396/[2005] 145 TAXMAN 186 (ALL.). WE HAVE EXAMINED THE DECISION IN SRI NATH SURESH CH AND RAM NARESH (SUPRA) AND WOULD OBSERVE THAT FACTS WERE PE CULIAR. THERE WAS ORAL PARTITION OF THE HINDU UNDIVIDED FAMILY, M /S MUNNA LAL MOTI LAL, ON DEATH OF THE 'KARTA' MOTI LAL. CAPITAL WAS DIVIDED AMONGST THREE BROTHERS, WHO WERE THE COPARCENERS. C ONTROVERSY WAS REGARDING LEGALITY OF ORAL PARTITION THAT WAS N OT RECOGNIZED BY THE REVENUE. RE-ASSESSMENT NOTICES WERE ISSUED, IN THE NAME OF M/S SRI NATH SURESH CHAND RAM NARESH, KARTA SHRI NA TH. 'NIL' RETURN WAS FILED ALONG WITH LETTER STATING THAT NO BUSINESS WAS CONDUCTED IN THE NAME OF THE ASSESSEE AND NOTICES W ERE WRONGLY ISSUED. REVENUE HAD ASSERTED THAT THIS NOTICE WAS M EANT TO ASSESS M/S MUNNA LAL MOTI LAL THOUGH THE NOTICE WAS TO ANO THER ASSESSEE, WHO WAS ALSO EXISTING IN LAW. RECORDING THIS FACTUA L MATRIX, THE NOTICE UNDER SECTION 148 AND ASSESSMENTS MADE WERE HELD TO BE INVALID. 20. CIT V. DIMENSION APPARELS (P.) LTD. [2015] 370 ITR 288/[2014] 52 TAXMANN.COM 356 (DELHI) AND CIT V. IN TEL TECHNOLOGY I.T.A. NO.3643/DEL/2016 25 INDIA LTD.[2016] 380 ITR 272/232 TAXMAN 279/57 TAXM ANN.COM 159 (KAR.) FOLLOW THE RATIO AND DECISION IN THE CAS E OF SPICE INFOTAINMENT LTD.(SUPRA), AS ASSESSMENT ORDERS HAD BEEN PASSED IN THE NAME OF THE NON-EXISTING ASSESSEE. THESE CASES ARE THEREFORE DISTINGUISHABLE. 13. THUS, ON PERUSAL OF THE DECISION OF SKY LIGHT HOS PITALITY LLP (SUPRA), IT IS CLEAR THAT IT CANNOT BE APPLIED IN A S ITUATION WHERE THE ISSUE OF VALIDITY OF ASSESSMENT ORDER IS INVOLVED . SIMILAR VIEW WAS TAKEN BY THE HONBLE G BENCH OF ITAT, DELHI IN THE CASE OF M/S SMA CORPORATION VS. PR. CIT-8, NEW DELHI [ITA NO . 4832/DEL/2018, A.Y. 2010-11, ORDER DATED 18.03.2019 ]. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL IN PARA 8 READ A S UNDER: 8. AFTER CONSIDERING BOTH THE ABOVE DECISIONS OF H ON'BLE DELHI HIGH COURT, WE FIND THAT THE DECISION OF SKY LIGHT HOSPITALITY LLP (SUPRA) WOULD BE APPLICABLE WHILE CONSIDERING THE A PPLICABILITY OF VALIDITY OF NOTICE, WHILE, FOR CONSIDERING THE VALI DITY OF A FINAL ORDER, THE DECISION OF SPICE ENTERTAINMENT LTD. (SUPRA) WO ULD BE APPLICABLE. THEIR LORDSHIPS HAVE CLEARLY HELD THAT WHILE CONSIDERING THE VALIDITY OF AN ORDER, SECTION 292B WOULD NOT BE APPLICABLE BECAUSE THE FRAMING OF AN ASSESSMENT AGAINST A NON- EXISTENT ENTITY GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCE DURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. THE ABOVE OBSERVATION WOULD BE SQUARELY APPLICATION WITH REGARD TO ORDER UNDER SECTION 263. WHEN ON THE DATE OF ORDER UNDER SECTION 263 ADMITTEDLY THE COMP ANY M/S SMA CONSTRUCTION PVT.LTD. IS NOT IN EXISTENCE, ANY ORDE R PASSED ON A NON-EXISTENT ENTITY WOULD BE NULLITY. WE, THEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HI GH COURT IN THE CASE OF SPICE ENTERTAINMENT LTD. (SUPRA), HOLD THAT THE ORDER PASSED I.T.A. NO.3643/DEL/2016 26 UNDER SECTION 263 IN THE CASE OF M/S SMA CONSTRUCTI ON PVT.LTD. WAS VOID AB-INITIO AND NULLITY. THE SAME IS QUASHED . 14. IN THE INSTANT CASE, IT IS AN ACCEPTED FACT THA T FACTUM OF AMALGAMATION OF YOGUM DEVELOPERS PVT. LTD. WITH THE GAHOI BUILWELL LTD. WAS DULY INTIMATED TO THE ASSESSING O FFICER. FURTHER, ON AMALGAMATION OF YOGUM DEVELOPERS PVT. L TD. WITH THE GAHOI BUILWELL LTD. (RENAMED AS V3S INFRATECH L TD.), THE COMPANY YOGUM DEVELOPERS PVT. LTD. STOOD DISSOLVED AND CEASED TO EXIST. THEREFORE, ISSUE OF NOTICE IN THE NAME OF M/S YOGUM DEVELOPERS PVT. LTD. (NOW KNOWN AS M/S V3S IN FRATECH LTD.) CANNOT LEAD TO ISSUE OF NOTICE TO V3S INFRATE CH LTD. (AMALGAMATED COMPANY) AS HELD BY THE HONBLE JURISD ICTIONAL HIGH COURT. FURTHER, AS THE ASSESSMENT VIDE ORDER D ATED 30.06.2014 HAS BEEN MADE ON THE M/S YOGUM DEVELOPER S PVT. LTD., ON A NON-EXISTENT COMPANY, THEREFORE, WE HAVE NO HESITATION TO HOLD THAT LD. CIT(A) WAS NOT JUSTIFIE D IN UPHOLDING THE VALIDITY OF ASSESSMENT FRAMED IN THE NAME OF NON-EXISTENT COMPANY BY APPLYING THE PROVISIONS OF SECTION 292BB WHICH WERE CLEARLY NOT APPLICABLE IN THE PRES ENT CASE AS THE ISSUE OF NOTICE WAS DULY OBJECTED BY THE AMAL GAMATED COMPANY. FURTHER, AS THE INFIRMITY IN THE FRAMING O F ASSESSMENT ON THE NON-EXISTENT COMPANY WAS SO FATAL THAT IT CANNOT BE CURED BY THE PROVISIONS OF SECTION 292B. WE, THEREFORE, QUASH THE ASSESSMENT ORDER. 15.. IN THE RESULT, GROUND NO. 1 & 2 AS RAISED BY T HE ASSESSEE ARE ALLOWED AND CONSEQUENTLY ALL OTHER GROUNDS RAIS ED BY THE I.T.A. NO.3643/DEL/2016 27 ASSESSEE HAVE BECOME ACADEMIC, HENCE DECLARED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/5/2 019. SD/- SD/- [L.P. SAHU] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21/05/2019