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ITA 4270/DEL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81633 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SUDHA KUMARI
• Assessee Lawyers: R K KAPOOR CHARTERED ACCO
• Keywords: Opportunity of being heard; Validity of assessment; Scheme of amalgamation
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .4270/DEL/2010 4270/DEL/2010 4270/DEL/2010 4270/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006- -- -07 0707 07 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -31(1) 31(1) 31(1) 31(1), ,, , C.R. BUILDING, I.P. ESTATE, C.R. BUILDING, I.P. ESTATE, C.R. BUILDING, I.P. ESTATE, C.R. BUILDING, I.P. ESTATE, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S DLF CYBER CITY DEVELOPERS M/S DLF CYBER CITY DEVELOPERS M/S DLF CYBER CITY DEVELOPERS M/S DLF CYBER CITY DEVELOPERS LIMITED, LIMITED, LIMITED, LIMITED, (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), DLF CENTRE, DLF CENTRE, DLF CENTRE, DLF CENTRE, SANSAD MARG, SANSAD MARG, SANSAD MARG, SANSAD MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. PAN : AAEFD1469L. PAN : AAEFD1469L. PAN : AAEFD1469L. PAN : AAEFD1469L. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO.4010/DEL/2010 .4010/DEL/2010 .4010/DEL/2010 .4010/DEL/2010 ASSESSMENT Y ASSESSMENT Y ASSESSMENT Y ASSESSMENT YEAR : EAR : EAR : EAR : 2006 2006 2006 2006- -- -07 0707 07 M/S DLF CYBER CITY M/S DLF CYBER CITY M/S DLF CYBER CITY M/S DLF CYBER CITY DEVELOPERS LIMITED, DEVELOPERS LIMITED, DEVELOPERS LIMITED, DEVELOPERS LIMITED, (SUCCESSORS TO DLF CYBER (SUCCESSORS TO DLF CYBER (SUCCESSORS TO DLF CYBER (SUCCESSORS TO DLF CYBER CITY), CITY), CITY), CITY), DLF CENTRE, DLF CENTRE, DLF CENTRE, DLF CENTRE, SANSAD MARG, SANSAD MARG, SANSAD MARG, SANSAD MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. PAN : AAEFD1469L. PAN : AAEFD1469L. PAN : AAEFD1469L. PAN : AAEFD1469L. VS. VS. VS. VS. ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, RANGE RANGE RANGE RANGE- -- -31, 31, 31, 31, C.R. BUILDING, C.R. BUILDING, C.R. BUILDING, C.R. BUILDING, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. (APPELLANT) (RESPONDENT) REVENUE BY : SMT. DR. SUDHA KUMARI, CIT-DR. ASSESSEE BY : SHRI PRADEEP DINODIA AND SHRI R.K. KAPOOR, CHARTERED ACCOUNTANTS. ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : : : : THESE APPEALS BY THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, NEW DELHI DATED 28 TH JUNE, 2010 FOR THE AY 2006-07. ITA-4270 & 4010/D/2010 2 2. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE STATED THAT SINCE GROUND NO.3 OF THE ASSES SEES APPEAL IS WITH REGARD TO VALIDITY OF THE ISSUE OF NOTICE UNDE R SECTION 148, IT SHOULD BE DECIDED FIRST AND THEREAFTER ONLY, THE GR OUNDS RAISED EITHER BY THE ASSESSEE OR BY THE REVENUE WITH REGARD TO VA RIOUS ADDITIONS DELETED/SUSTAINED BY THE LEARNED CIT(A) SHOULD BE C ONSIDERED. LEARNED DR HAS NO OBJECTION TO THE ABOVE REQUEST OF THE ASSESSEES COUNSEL. ACCORDINGLY, WE PROCEED TO DECIDE GROUND NO.3 OF THE ASSESSEES APPEAL WHICH READS AS UNDER:- WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE NOTICE ISSUED U/S 148 OF THE INC OME-TAX ACT, 1961 AND THE CONSEQUENT ASSESSMENT IN THE NAME OF THE ERSTWHILE FIRM IS BAD IN LAW, VOID AB-INITIO AN D NON-EST. 3. LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE NOTICE UNDER SECTION 148 WAS ISSUED ON 18 TH AUGUST, 2008 IN THE NAME OF DLF CYBER CITY (THROUGH PARTNER). THAT DLF CYBER CITY PARTNE RSHIP FIRM CEASED TO EXIST AFTER ITS CONVERSION INTO COMPANY WITH EFFECT FROM 2 ND MARCH, 2006. THAT THE ISSUE OF NOTICE IN THE NAME OF A NO N-EXISTENT PERSON IS VOID AB-INITIO AND SIMILARLY, THE COMPLETION OF ASS ESSMENT IN THE NAME OF A NON-EXISTENT PERSON IS ALSO VOID. HE REFERRED TO THE NOTES TO THE FINANCIAL STATEMENT WHICH READ AS UNDER:- 5. THE FIRM HAS BEEN CONVERTED INTO PUBLIC COMPANY DLF CYBER CITY DEVELOPERS LIMITED WITH EFFECT FROM MARCH 2, 2006, UNDER CHAPTER IX OF THE COMPANIES ACT, 195 6. HENCE THE FIRMS ACCOUNTS ARE PREPARED ONLY UPTO TH E PERIOD OF MARCH 1, 2006. 4. HE ALSO REFERRED TO THE REPLY FURNISHED BY THE A SSESSEE IN RESPONSE TO NOTICE UNDER SECTION 148 AND POINTED OU T THAT IN THE LETTER HEAD, IT IS CLEARLY MENTIONED DLF CYBER CITY DEVEL OPERS LTD. (SUCCESSOR TO DLF CYBER CITY). AGAIN, WHEN THE LET TER WAS SIGNED, IT ITA-4270 & 4010/D/2010 3 WAS MENTIONED AS DLF CYBER CITY DEVELOPERS LTD. (SU CCESSOR TO DLF CYBER CITY). IN SUPPORT OF HIS CONTENTION, HE RELI ED UPON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE INFOT AINMENT LTD. VS. CIT [2012] 247 CTR (DEL) 500 AND THE THIRD MEMBER DEC ISION OF AGRA BENCH IN THE CASE OF ITO, 4(4), AGRA VS. SIKANDAR L AL JAIN [2011] 45 SOT 113 (AGRA)(TM). 5. LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORD ERS OF THE LOWER AUTHORITIES. SHE STATED THAT IN THE YEAR UND ER CONSIDERATION, THE ASSESSEE FILED THE RETURN DECLARING INCOME OF ` 41,31,220/- ON 29 TH DECEMBER, 2006. THE RETURN WAS FILED IN THE NAME O F PARTNERSHIP FIRM AND NOT IN THE NAME OF THE SUCCESSOR COMPANY. THAT IN RESPONSE TO NOTICE UNDER SECTION 148 ALSO, THE ASSESSEE NEVER P OINTED OUT THAT THE FIRM IS NOT IN EXISTENCE BUT ONLY STATED THAT THE R ETURN FILED ORIGINALLY SHOULD BE TREATED AS RETURN OF INCOME IN RESPONSE T O THE NOTICE UNDER SECTION 148. THAT THE ASSESSEE NEVER INTIMATED TO THE REVENUE WITH REGARD TO DISSOLUTION OF THE FIRM AND ITS CONVERSIO N INTO THE COMPANY. THEREFORE, THE ASSESSEE MISGUIDED THE DEPARTMENT. THAT SIMPLY MENTIONING IN THE LETTER HEAD AS SUCCESSOR TO DLF C YBER CITY CANNOT BE CONSIDERED TO BE PROPER INTIMATION OF THE DISSOLUTI ON OF THE FIRM. SHE FURTHER SUBMITTED THAT THE ASSESSEE DULY PARTICIPAT ED IN THE ASSESSMENT PROCEEDINGS AND, THEREFORE, EVEN IF THER E IS ANY IRREGULARITY, THAT CAN BE RECTIFIED BY CHANGING THE NAME OF THE ASSESSEE. IN SUPPORT OF THIS CONTENTION, SHE RELIE D UPON THE FOLLOWING DECISIONS:- (I) CIT VS. T.V. SUNDARAM IYENGAR AND SONS P.LTD. [19 99] 238 ITR 328 (MADRAS). (II) CENTURY ENKA LTD. VS. DCIT [2008] 303 ITR (A.T.) 0001 (ITAT MUMBAI). ITA-4270 & 4010/D/2010 4 (III) M CORP GLOBAL (P) LTD. VS. DCIT ITA NO.2024/DEL/2 008 A.Y. 2002-03, ORDER DATED 29.01.2008. 6. SHE, THEREFORE, SUBMITTED THAT EITHER THE ORDER OF LEARNED CIT(A) SHOULD BE SUSTAINED OR THE MATTER MAY BE SENT TO TH E FILE OF THE ASSESSING OFFICER TO MODIFY THE NAME OF THE ASSESSE E. 7. IN THE REJOINDER, IT IS STATED BY THE LEARNED CO UNSEL THAT THE DECISION OF ITAT DELHI BENCH RELIED UPON BY THE LEA RNED DR HAS BEEN REVERSED BY THE HON'BLE JURISDICTIONAL HIGH COURT I N 247 CTR 500. THAT ANOTHER DECISION OF THE ITAT IS ALSO PRIOR TO THE A BOVE DECISION OF HON'BLE DELHI HIGH COURT. HE FURTHER STATED THAT T HE FACTS IN THE OTHER CASES RELIED UPON BY THE LEARNED DR ARE ALTOGETHER DIFFERENT. HE, THEREFORE, SUBMITTED THAT ON THE FACTS OF THE ASSES SEES CASE, THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN TH E CASE OF SPICE INFOTAINMENT LTD. (SUPRA) WOULD BE SQUARELY APPLICA BLE. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED RELEVANT MATERIAL PLACED BEFORE US. TH E FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 ON 18 TH AUGUST, 2008 IN THE NAME OF M/S DLF CYBER CITY (THR OUGH PARTNER). THEREFORE, IT IS UNDISPUTED THAT THE NOTICE WAS ISS UED TO THE PARTNERSHIP FIRM. IT IS ALSO UNDISPUTED THAT THE P ARTNERSHIP FIRM CEASED TO EXIST FROM 2 ND MARCH, 2006 AFTER ITS CONVERSION INTO COMPANY UNDE R CHAPTER IX OF THE COMPANIES ACT. FOR THE AY 2006-0 7, THE FIRM HAS PREPARED THE ACCOUNTS FOR THE PERIOD 1.4.2005 TO 1. 3.2006 AND ALSO FILED THE RETURN FOR THE ABOVE PERIOD. THE REVENUE HAS ALSO COMPLETED THE ASSESSMENT ON THE BASIS OF THE SAID RETURN. WE ALSO FIND THAT THE ASSESSEE HAS NOT SEPARATELY INTIMATED ABOUT THE CON VERSION OF THE FIRM INTO COMPANY BUT IN THE NOTE WHICH WAS FORMING PART OF THE ANNUAL ITA-4270 & 4010/D/2010 5 ACCOUNTS, THE FACT OF CONVERSION OF THE ASSESSEE IN TO PUBLIC COMPANY IS MENTIONED. THE SAID NOTE READS AS UNDER:- 5. THE FIRM HAS BEEN CONVERTED INTO PUBLIC COMPANY DLF CYBER CITY DEVELOPERS LIMITED WITH EFFECT FROM MARCH 2, 2006, UNDER CHAPTER IX OF THE COMPANIES ACT, 195 6. HENCE THE FIRMS ACCOUNTS ARE PREPARED ONLY UPTO TH E PERIOD OF MARCH 1, 2006. 9. THE LETTER HEAD ON WHICH THE REPLY WAS FURNISHED TO THE ASSESSING OFFICER READS AS UNDER:- DLF CYBER CITY DEVELOPERS LTD. (SUCCESSOR TO DLF CYBER CITY) DLF CENTRE, 9 TH FLOOR, SANSAD MARG, NEW DELHI 110001 10. FROM THE ABOVE, IT IS CLEAR THAT THOUGH NO SEPA RATE INTIMATION WAS GIVEN TO THE REVENUE WITH REGARD TO THE CONVERS ION OF THE PARTNERSHIP FIRM INTO COMPANY WITH EFFECT FROM 2 ND MARCH, 2006, BUT THE FACT WAS AVAILABLE ON RECORD. BE THAT AS IT MA Y, WHETHER THE ASSESSING OFFICER WAS AWARE OR NOT ABOUT THE NON-EX ISTENCE OF THE PARTNERSHIP FIRM, THE QUESTION BEFORE US IS WHETHER THE ISSUE OF NOTICE UNDER SECTION 148 TO A NON-EXISTENT ENTITY IS VALID ? WE FIND THAT SOMEHOW SIMILAR ISSUE AROSE BEFORE THE ITAT IN THE CASE OF M CORP GLOBAL (P) LTD. (SUPRA) RELIED UPON BY THE LEARNED DR. THE FACTS OF THE SAID CASE WERE THAT THE ABOVE ASSESSEE VIZ., M/S SP ICE CORPORATION LTD. FILED THE RETURN OF INCOME FOR AY 2002-03 ON 30 TH OCTOBER, 2002. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 28 TH MARCH, 2005. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THE ASSESSMENT IN THE HANDS OF M/S SPICE CORPORATION LTD. WHICH IS A NON- ENTITY IS NOT VALID BECAUSE THE COMPANY STOOD DISSOLVED CONSEQUENT UPON ITS AMALGAMATION WITH M CORP GLOBAL (P) LTD. WITH EFFEC T FROM 1 ST JULY, 2003. THE CIT(A) REJECTED THIS GROUND AND THE ASSE SSEE WAS IN APPEAL ITA-4270 & 4010/D/2010 6 BEFORE THE ITAT, DELHI BENCH. THE ITAT, DELHI BENC H RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH TH E FOLLOWING FINDING:- 14. IN THE LIGHT OF THE DISCUSSION S MADE ABOVE, W E, THEREFORE, HOLD THAT THE ASSESSMENT MADE BY THE AO, IN SUBSTANCE AND EFFECT, IS NOT AGAINST THE NON-EXISTE NT AMALGAMATING COMPANY. HOWEVER, WE DO AGREE WITH TH E PROPOSITION OR RATIO DECIDED IN THE VARIOUS CASES R ELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT T HE ASSESSMENT MADE AGAINST NON-EXISTENT PERSON WOULD B E INVALID AND LIABLE TO BE STRUCK DOWN. BUT, IN THE PRESENT CASE, WE FIND THAT THE ASSESSMENT, IN SUBSTANCE AND EFFECT. HAS BEEN MADE AGAINST AMALGAMATED COMPANY IN RESPEC T OF ASSESSMENT OF INCOME OF AMALGAMATING COMPANY FOR THE PERIOD PRIOR TO AMALGAMATION AND MERE OMISSION TO MENTION THE NAME OF AMALGAMATED COMPANY ALONGWITH T HE NAME OF AMALGAMATING COMPANY IN THE BODY OF ASSESSMENT AGAINST THE ITEM NAME OF THE ASSESSEE IS NOT FATAL TO THE VALIDITY OF ASSESSMENT BUT IS A PROCED URAL DEFECT COVERED BY SECTION 292B OF THE ACT. WE HOLD ACCORDINGLY. 15. WE, THEREFORE, RESTORE THE ASSESSMENT BACK TO T HE FILE OF THE AO FOR HIS FRESH ASSESSMENT AFTER REMOV ING THE SAID DEFECT IN THE ASSESSMENT AND THE AO SHALL PROV IDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THEREFORE, THE CROSS OBJECTIONS RAISED BY THE ASSES SEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 11. THE ASSESSEE, AGGRIEVED WITH THE DECISION OF TH E ITAT, FILED APPEAL BEFORE HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SPICE INFO TAINMENT LTD. VS. CIT [2012] 247 CTR (DEL) 500 QUASHED THE ASSESSMENT BY HOLDING AS UNDER:- HELD : NO DOUBT, S WAS AN ASSESSEE AND AN INCORPOR ATED COMPANY AND WAS IN EXISTENCE WHEN IT FILED THE RETU RNS IN RESPECT OF TWO ASSESSMENT YEARS IN QUESTION. HOWEV ER, BEFORE THE CASE COULD BE SELECTED FOR SCRUTINY AND ASSESSMENT PROCEEDINGS COULD BE INITIATED, S GOT AMALGAMATED WITH MC LTD. IT WAS THE RESULT OF THE SCHEME OF THE AMALGAMATION FILED BEFORE THE COMPANY JUDGE OF ITA-4270 & 4010/D/2010 7 THIS COURT WHICH WAS DULY SANCTIONED VIDE ORDERS DT . 11 TH FEB., 2004. WITH THIS AMALGAMATION MADE EFFECTIVE FROM 1 ST JULY, 2003, S CEASED TO EXIST. THAT IS THE PLAIN AND SIMPLE EFFECT IN LAW. THE SCHEME OF AMALGAMATION I TSELF PROVIDED FOR THIS CONSEQUENCE, INASMUCH AS SIMULTAN EOUS WITH THE SANCTIONING OF THE SCHEME, S WAS ALSO STOO D DISSOLVED BY SPECIFIC ORDER OF THIS COURT. WITH TH E DISSOLUTION OF THIS COMPANY, ITS NAME WAS STRUCK OF F FROM THE ROLLS OF COMPANIES MAINTAINED BY THE ROC. A CO MPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT IS A JU RISTIC PERSON. IT TAKES ITS BIRTH AND GETS LIFE WITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW T HAT ON AMALGAMATION, THE AMALGAMATING COMPANY CEASES TO EX IST IN THE EYES OF LAW. IN VIEW OF THE AFORESAID CLINC HING POSITION IN LAW, IT IS DIFFICULT TO DIGEST THE CIRC UITOUS ROUTE ADOPTED BY THE TRIBUNAL HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMATED COMPANY AND THER E WAS ONLY A PROCEDURAL DEFECT. AFTER THE SANCTION O F THE SCHEME ON 11 TH FEB., 2004, S CEASED TO EXIST W.E.F. 1 ST JULY, 2003. EVEN IF S HAD FILED THE RETURNS, IT BECAME I NCUMBENT UPON THE IT AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID DEAD PERSON. WHEN NOTICE UNDER S. 14 3(2) WAS SENT, THE APPELLANT/AMALGAMATED COMPANY APPEARE D AND BROUGHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE, HOWEVER, DID NOT SUBSTITUTE THE NAME OF THE APPELLA NT ON RECORD. INSTEAD, THE AO MADE THE ASSESSMENT IN THE NAME OF S WHICH WAS NON-EXISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AN ASSESSMENT ORDER PASSED IN THE NAME OF S WOULD CLEARLY BE VOID. SUCH A DEFECT CANNOT BE TRE ATED AS PROCEDURAL DEFECT. MERE PARTICIPATION BY THE APPEL LANT WOULD BE OF NO EFFECT AS THERE IS NO ESTOPPEL AGAIN ST LAW. 12. THEIR LORDSHIPS FURTHER OBSERVED :- 18. WE MAY, HOWEVER, POINT OUT THAT THE RETURNS WE RE FILED BY M/S SPICE ON THE DAY WHEN IT WAS IN EXISTE NCE IT WOULD BE PERMISSIBLE TO CARRY OUT THE ASSESSMENT ON THE BASIS OF THOSE RETURNS AFTER TAKING THE PROCEEDINGS AFRESH FROM THE STAGE OF ISSUANCE OF NOTICE UNDER S. 143(2 ) OF THE ACT. IN THESE CIRCUMSTANCES, IT WOULD BE INCUMBENT UPON THE AO TO FIRST SUBSTITUTE THE NAME OF THE APPELLAN T IN PLACE OF M/S SPICE AND THEN ISSUE NOTICE TO THE APPELLANT . HOWEVER, SUCH A COURSE OF ACTION CAN BE TAKEN BY TH E AO ITA-4270 & 4010/D/2010 8 ONLY IF IT IS STILL PERMISSIBLE AS PER LAW AND HAS NOT BECOME TIME-BARRED. 13. IN OUR OPINION, THE RATIO OF THE ABOVE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT WOULD BE SQUARELY APPLICA BLE TO THE CASE OF THE ASSESSEE. IT IS A SETTLED LAW THAT THE PARTNER SHIP FIRM AND THE COMPANY ARE SEPARATE JURIDICAL PERSONS. UNDER THE INCOME-TAX ACT ALSO, THEY ARE ASSESSED SEPARATELY. CHAPTER IX OF THE COMPANIES ACT PERMITS THE CONVERSION OF THE PARTNERSHIP FIRM INTO COMPANY AND, ON SUCH CONVERSION, THE PARTNERSHIP FIRM CEASES TO EXI ST AND THE COMPANY COMES INTO EXISTENCE. THIS INCIDENT HAS TAKEN PLAC E ON 1 ST MARCH, 2006 AND THEREFORE, FROM 2 ND MARCH, 2006, DLF CYBER CITY FIRM IS NO MORE IN EXISTENCE. NOTICE UNDER SECTION 148 WAS ISSUED ON 18 TH AUGUST, 2008, I.E., THE DATE ON WHICH THE PARTNERSHIP FIRM WAS NO T IN EXISTENCE. HON'BLE JURISDICTIONAL HIGH COURT IN THE ABOVE MENT IONED CASE HAS HELD THAT THE ASSESSMENT IN THE HANDS OF DEAD PERSON WOU LD BE CLEARLY VOID. THE AFORESAID OBSERVATION WOULD BE SQUARELY FOR THE ISSUE OF NOTICE UNDER SECTION 148 IN THE NAME OF DEAD PERSON. THER EFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE HOLD THAT THE ISSU E OF NOTICE UNDER SECTION 148 IN THE NAME OF A DEAD PERSON IS VOID. IT IS NOT MUCH RELEVANT WHETHER THE ASSESSING OFFICER WAS AWARE OR NOT WITH REGARD TO DISSOLUTION OF THE FIRM. HOWEVER, WE MAY POINT OUT THAT THE REVENUE IS AT LIBERTY TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH LAW IN THE HANDS OF THE SUCCESSOR COMPANY IN THE LIGHT OF THE OBSERVATIONS OF HON'BLE JURISDICTIONAL HIGH COURT AT PARAGRAPH 18 O F THE REPORT WHICH IS ALSO REPRODUCED BY US AT PARAGRAPH 12 ABOVE. 14. BEFORE WE PART WITH THE MATTER, WE MAY MENTION THAT THE LEARNED DR ALSO RELIED UPON THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF T.V. SUNDARAM IYENGAR AND SONS P.LTD. (SUPR A) AND THE DECISION OF ITAT MUMBAI BENCH IN THE CASE OF CENTURY ENKA LT D. (SUPRA). HOWEVER, THE DECISION OF HON'BLE JURISDICTIONAL HIG H COURT WOULD BE ITA-4270 & 4010/D/2010 9 BINDING UPON US AND NO CONTRARY DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OR HONBLE APEX COURT IS BROUGHT TO OUR KNOWL EDGE. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF H ON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD. ( SUPRA), QUASH THE NOTICE UNDER SECTION 148 AND ALSO THE ASSESSMENT OR DER PASSED IN PURSUANCE TO NOTICE UNDER SECTION 148. 15. SINCE THE ASSESSMENT ORDER HAS BEEN QUASHED BY US, THE VARIOUS GROUNDS RAISED BY THE REVENUE AND THE ASSESSEE IN T HE RESPECTIVE APPEALS NEED NO SEPARATE ADJUDICATION. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED WHILE THE APPEAL OF THE REVENUE IS DEEMED TO BE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 22 ND AUGUST, 2014. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 22.08.2014 VK. COPY FORWARDED TO: - 1. APPELLANT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -31(1), C.R. BUILDING, I.P. ESTATE, 31(1), C.R. BUILDING, I.P. ESTATE, 31(1), C.R. BUILDING, I.P. ESTATE, 31(1), C.R. BUILDING, I.P. ESTATE, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : M/S DLF CYBER CITY DEVELOPERS LIMIT ED, M/S DLF CYBER CITY DEVELOPERS LIMITED, M/S DLF CYBER CITY DEVELOPERS LIMITED, M/S DLF CYBER CITY DEVELOPERS LIMITED, (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), (SUCCESSORS TO DLF CYBER CITY), DLF CENTRE, SANSAD MARG, DLF CENTRE, SANSAD MARG, DLF CENTRE, SANSAD MARG, DLF CENTRE, SANSAD MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR