WESTILIFE DEVELOPMENT LTD, MUMBAI V. PR CIT 5, MUMBAI

ITA 688/MUM/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2932 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 31-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 10-02-2016
• Court: TRIBUNAL
• Department Lawyers: GOLI SRINIVASA RAO
• Assessee Lawyers: GOVIND JHAVERI; SS VIJAY MEHTA
• Keywords: Difference of opinion; Procedural lapse; Scheme of amalgamation; Assessment record; Block assessment; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 147; 148; 263; 154

Judgement Text

1 ITA NO. 688 /MUM/2016 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'G', MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACOUNTANT MEMBER) I.T.A. NO.ITA NO.688 /MUM/2016 (ASSESSMENT YEAR: 2011-12) M/S WESTLIFE DEVELOPMENT LTD VS PRINCIPAL COMMISSIO NER OF (SUCCESSOR TO WESPOINT LEISUREPARKS INCOME-TAX-5 LTD) MUMBAI 1001, LOH FLOOR, TOWER-3, INDIABULLS FINANCE CENTRE, SENPATI BAPAT MARG, ELPHINSTONE ROAD, MUMBAI-13 PAN :AACD0528K (APPELLANT) (RESPONDENT) APPELLANT BY S/S VIJAY MEHTA AND GOVIND JHAVERI RESPONDENT BY SHRI GOLI SRINIVASA RAO, CIT-DR DATE OF HEARING : 10-06-2016 DATE OF PRONOUNCEMENT : 24-06-2016 ORDER PER ASH WANI TANEJA, AM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. PRINCIPAL COMMISSIONER OF INCOME TAX-5, MUMBAI (HER EINAFTER CALLED AS CIT) PASSED U/S 263 DATED 22-12-2015 FOR A.Y. 2011-12ON THE FOLLOWING GROUNDS: '1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX [CIT] ERRED IN INITIATING 2 ITA NO.688 /MUM/2016 PROCEEDINGS U/S.263 OF THE INCOME TAX ACT, 1961 (TH E ACT) VIDE SHOW- CAUSE NOTICE DATED 20-04-2015 AND PASSING AN ORDER U/S. 263 OF THE ACT AS THE REASONS ASSIGNED BY HIM FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS OF THE CASE, THE PROVISIONS O F THE ACT, AND THE RULES MADE THEREUNDER. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE APPELLANT PRAYS THAT THE ORDER OF THE LEARNED CIT P ASSED U/S.263 OF THE INCOME TAX ACT, 1961 MAY BE CANCELLED BEING VOI D AB-INITIO AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LEARNED COMMISSIONER OF INCOME TAX ERRED IN HOLDING THAT ASSESSMENT ORDER DATED 24-10-2013 PASSED BY THE ASSESSING OFFICER U/ S 143(3) OF THE ACT WITH REGARD TO ISSUE OF SHARES AT PREMIUM WAS ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE DESPITE THE ISSUES RAIS ED HAVING BEEN DULY CONSIDERED BY THE LEARNED ASSESSING OFFICER WH ILE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT ERRED IN NOT HIMSELF CONDUCTING NECESSA RY/ PROPER ENQUIRY AND VERIFICATION OF ISSUES MENTIONED IN THE NOTICE ISSUED U/S. 263 OF THE ACT AND SETTING ASIDE THE ASSESSMENT ORDER FOR A DE-NOVO ADJUDICATION ON ISSUES MENTIONED THEREIN WHICH IS W RONG AND CONTRARY TO THE PROVISIONS OF THE ACT, AND THE RULES MADE TH EREUNDER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT ERRED IN ISSUING NOTICE DATED 20-04-201 5 U/S. 263 OF THE ACT IN THE NAME WESTPOINT LEISURE PARKS PVT. LTD, A COMPANY WHICH HAD ALREADY BECOME NON-EXISTENT ON THE DATE OF ISSU ANCE OF THE SAID NOTICE ON ACCOUNT OF ITS MERGER WITH THE APPELLANT COMPANY (WESTLIFE DEVELOPMENT LTD) DESPITE THE FACT REGARDING AMALGAM ATION BEEN SPECIFICALLY BROUGHT TO NOTICE OF THE INCOME DEPART MENT VIDE APPELLANT'S LETTER DATED 03-09-2013. AS SUCH, THE E NTIRE PROCEEDINGS U/S. 263 ARE VOID AB INITIO, ILLEGAL, BAD IN LAW AN D DESERVE QUASHED. 3 ITA NO.688 /MUM/2016 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MAD E BY CA VIJAY MEHTA, ON BEHALF OF THE ASSESSEE AND SHRI GOLI SRINIVASA R AO, CIT-DR ON BEHALF OF THE REVENUE. 3. DURING THE COURSE OF HEARING, HE LD. COUNSEL OF THE ASSESSEE INTER-ALIA STATED THAT IN THIS CASE THE IMPUGNED ORDER PASSED U/S 263 IS BAD IN LAW ON THE JURISDICTIONAL GROUND, THAT IS TO SAY THAT THE ORIG INAL ASSESSMENT ORDER PASSED U/S 143(3) DATED 2440-2013 WHICH HAS BEEN SOUGHT TO BE REVISED BY THE ID.CIT WAS A NULLITY IN THE EYES OF LAW, AND THEREFORE AN ORDER, WHICH WAS A NULLITY IN THE EYES OF LAW HAD NO EXISTENCE IN THE EYES OF LAW AND, THEREFORE, THE SAME COULD NOT HAVE BEEN REVISED BY THE LD.CIT, THEREBY GIVING FRESH LIFE TO THE PROCEEDINGS WHICH HAD NO LEGAL EXISTENCE IN THE EYE S OF LAW. IN THIS REGARD, IT HAS BEEN FURTHER EXPLAINED BY THE ID. COUNSEL THAT THE ORIGINAL ASSESSMENT WAS FRAMED U/S 143(3) UPON AN ERSTWHILE COMPANY, VIZ. M /S 'WESTPOINT LEISUREPARKS PVT LTD' (HEREINAFTER CALLED WLPL), WH ICH HAD ALREADY GOT AMALGAMATED INTO ANOTHER COMPANY NAMELY M/S 'WESTLI FE DEVELOPMENT LTD' (HEREINAFTER CALLED WDL) AND THEREFORE, ON THE DATE OF FRAMING OF THE ASSESSMENT ORDER, WLPL WAS NOT IN EXISTENCE. IT WAS FURTHER SUBMITTED THAT THIS FACT WAS BROUGHT TO THE KNOWLEDGE OF THE ASSES SING OFFICER; DESPITE THAT, THE ASSESSING OFFICER FRAMED THE ASSESSMENT UPON A NON-EXISTING ENTITY. IT WAS SUBMITTED BY HIM THAT FRAMING OF AN ASSESSMENT UPON A COMPANY WHICH HAS ALREADY BEEN AMALGAMATED BY WAY OF AN ORDER OF THE HIGH COURT IS NULLITY IN THE EYES OF LAW AND IN SUPPORT OF HIS ARGUMENTS HE PLACED RELIANCE UPON THE FOLLOWING JUDGMENTS: 1. JUDGMENT OF DELHI HIGH COURT IN THE CASE OF SPIC E INFOTAINMENT LTD. VS. COMMISSIONER OF SERVICE TAX IN ITA 475 & 476 OF 2011, DATED 03.08.2011 2. CIT V. DIMENSION APPARELS P. LTD. [370 ITR 288 ( DEL)] 3. I. K. AGENCIES P. LTD. V CIT [347 ITR 664 (CAL)] 4 ITA NO.688 /MUM/2016 4. CIT V EXPRESS NEWSPAPERS LTD. [40 ITR 38 (MAD)] 5. JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT V MICRA INDIA P. LTD. (2015) 57 TAXMANN.COM 163 (DEL) 6. ORDER OF THE TRIBUNAL MUMBAI BENCH, IN THE CASE OF INSTANT HOLDINGS LTD. ACIT IN ITA NO. 4593, 4748/MUM/2011 ORDER DATE D 09.03.2016. 7. ORDER OF THE TRIBUNAL KOLKATA BENCH, IN THE CASE OF EMERALD COMPANY LTD IN ITA NO. 428/KO1/2015 ORDER DATED 13.01.2016 8. JUDGMENT OF KARNATAKA HIGH COURT IN THE CASE OF CIT V INTEL TECHNO INDIA P. LTD. (2015) 57 TAXMANN.COM 159 (KAR) 9. ORDER OF THE TRIBUNAL KOLKATA BENCH, IN THE CASE OF GESTENER (INDIA) ACIT IN 1TA NO. 275/KO1/2007 ' 4. IT WAS FURTHER ARGUED BY HIM THAT THE IMPUGNED A SSESSMENT ORDER WAS NON EST IN THE EYES OF LAW AND, THEREFORE, THE SAME COULD N OT HAVE BEEN REVISED BY THE ID.CIT. IN THIS REGARD, HE RELIED UP ON THE JUDGMENT OF HON'BLE DELHI HIGH IN CIT VS ESCORTS FARMS PVT LTD 180 ITR 80 (DEL) AND UPON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF KR ISHNA KUMAR SARAF VS CIT ITA NO.4562/DE1/2011 DATED 24-09-32015 AND STEEL STRIPS LTD V ACIT 53 ITD 553 (CHD). HE THUS REQUESTED THAT THE IMPUGNED REVISION ORDER PASSED BY THE ID.CIT IS ILLEGAL ON THIS PRIMARY JURISDICTIONAL GR OUND ITSELF. 5. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE VEHEMENTLY OPPOSED THE ARGUMENTS OF THE ID. COUNSEL . IT WAS SUBMITTED BY THE ID. CIT-DR THAT EVEN IF THE ORIGINAL ASSESSMENT ORD ER WAS FRAMED IN THE NAME OF AN ERSTWHILE COMPANY, THE SAME WAS ONLY A MERE IRRE GULARITY AND THAT DOES NOT MAKE THE ASSESSMENT AS NULLITY IN THE EYES OF LAW. IT WAS SUBMITTED THAT SUCH LAPSES WERE PROTECTED U/S 292B OF THE ACT. 6. IN ADDITION TO THE ABOVE, IT WAS FURTHER SUBMITT ED BY HIM THAT THE ISSUE WITH REGARD TO ILLEGALITY IN THE ORIGINAL ASSESSMEN T ORDER CANNOT BE RAISED HERE DURING THE PROCEEDINGS CHALLENGING THE ORDER U/S 26 3. IT WAS FURTHER SUBMITTED 5 ITA NO. 688 /MUM12016 BY HIM THAT IN ANY CASE, THE LD.CIT HAD PROPER JURI SDICTION TO MAKE REVISION OF THE IMPUGNED ASSESSMENT ORDER. 7. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AN D ALSO GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AS WELL AS T HE JUDGMENTS RELIED UPON BEFORE US. IN OUR VIEW, WE NEED TO DECIDE FOLLOWING ISSUES, BEFORE WE GO INTO ANY OTHER ISSUES OR MERITS OF THE IMPUGNED ORDER: 1. WHETHER THE ASSESSEE CAN CHALLENGE THE VALIDITY OF AN ASSESSMENT ORDER DURING THE APPELLATE PROCEEDINGS PERTAINING T O EXAMINATION OF VALIDITY OF ORDER PASSED U/S 263? 2. WHETHER THE IMPUGNED ASSESSMENT ORDER PASSED U/S 14 3(3) DATED 24-10-2013 WAS VALID IN THE EYES OF LAW OR A NULLIT Y AS HAS BEEN CLAIMED BY THE ASSESSEE? 3. IF THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3) WAS ILLEGAL OR NULLITY IN THE EYES OF LAW, THEN, WHETHER THE CIT H AD A VALID JURISDICTION TO PASS THE IMPUGNED ORDER U/S 263 TO REVISE THE NON EST ASSESSMENT ORDER? IN OUR CONSIDERED VIEW, SINCE THESE ISSUES ARE JURI SDICTIONAL ISSUES AND GO TO THE ROOT OF THE MATTER, THEREFORE BEFORE DEALING WITH A NY OTHER ISSUE, WE SHALL FIRST DEAL WITH ALL ABOVE THREE ISSUES ONE BY ONE, AS UND ER: 8. CHALLENGING THE JURISDICTIONAL DEFECTS OF ASSESS MENT ORDER FOR ASSAILING THE JURISDICTIONAL VALIDITY OF THE REVISION ORDER PASSE D U/S 263: THE FIRST ISSUE THAT ARISES FOR OUR CONSIDERATION I S - WHETHER THE ASSESSEE CAN CHALLENGE THE JURISDICTIONAL VALIDITY OF ORDER PASSED U/S 143(3) IN THE APPELLATE PROCEEDINGS TAKEN UP FOR CHALLENGING THE ORDER PASSED U/S 263? IF WE ANALYSE THE NATURE OF BOTH OF THESE PROC EEDINGS, WHICH ARE UNDER CONSIDERATION BEFORE US, WE FIND THAT THE ORI GINAL ASSESSMENT PROCEEDINGS CAN BE CLASSIFIED IN A WAY AS 'PRIMARY PROCEEDINGS'. THESE ARE, IN EFFECT, BASIC / FOUNDATIONAL PROCEEDINGS AN D AKIN TO A PLATFORM UPON WHICH ANY SUBSEQUENT PROCEEDINGS CONNECTED THE REWITH CAN REST 6 ITA NO. 688 /MUM12016 UPON. THE PROCEEDINGS INITIATED U/S 263 SEEKING TO REVISE THE ORIGINAL ASSESSMENT ORDER IS OFF SHOOT OF THE PRIMARY PROCEE DINGS AND THEREFORE, THESE MAY BE TERMED AS 'COLLATERAL PROCEEDINGS' IN THE LEGAL FRAMEWORK. THE ISSUE THAT ARISES HERE IS WHETHER ANY ILLEGALIT Y/INVALIDITY IN THE ORDER PASSED IN THE 'PRIMARY PROCEEDINGS' CAN BE SET UP I N THE 'COLLATERAL PROCEEDINGS' AND IF YES, THEN OF WHAT NATURE? 8.1. WE HAVE ANALYSED THIS ISSUE CAREFULLY. THERE IS NO DOUBT THAT AFTER PASSING OF THE ORIGINAL ASSESSMENT ORDER, THE PRIMA RY (I.E. ORIGINAL PROCEEDINGS) HAD COME TO AN END AND ATTAINED FINALI TY AND, THEREFORE, OUTCOME OF THE SAME CANNOT BE DISTURBED, AND THEREF ORE, THE ORIGINAL ASSESSMENT ORDER FRAMED TO CONCLUDE THE PRIMARY PRO CEEDINGS HAD ALSO ATTAINED FINALITY AND IT ALSO CANNOT BE DISTURBED A T THE INSTANCE OF THE ASSESSEE, EXCEPT AS PERMITTED UNDER THE LAW AND BY FOLLOWING THE DUE PROCESS OF LAW. UNDER THESE CIRCUMSTANCES, IT CAN B E SAID THAT EFFECT OF THE ORIGINAL ASSESSMENT ORDER CANNOT BE ERASED OR M ODIFIED SUBSEQUENTLY. IN OTHER WORDS, WHATEVER TAX LIABILIT Y HAD BEEN DETERMINED IN THE ORIGINAL ASSESSMENT ORDER THAT HA D ALREADY BECOME FINAL AND THAT CANNOT BE SOUGHT TO BE DISTURBED BY THE ASSESSEE. BUT, THE ISSUE THAT ARISES HERE IS THAT IF THE ORIGINAL ASSESSMENT ORDER IS ILLEGAL IN TERMS OF ITS JURISDICTION OR IF THE SAME IS NULL & VOID IN THE EYES OF LAW ON ANY JURISDICTIONAL GROUNDS, THEN, WHETHER IT CAN GIVE RISE TO INITIATION OF FURTHER PROCEEDINGS AND WHETHER SUCH SUBSEQUENT PROCEEDINGS WOULD BE VALID UNDER THE LAW AS CONTAINED IN INCOME TAX A CT? IT HAS BEEN VEHEMENTLY ARGUED BEFORE US THAT THE SUBSEQUENT PRO CEEDINGS (I.E. COLLATERAL PROCEEDINGS) DERIVE STRENGTH ONLY FROM T HE ORDER PASSED IN THE ORIGINAL PROCEEDINGS (I.E. PRIMARY PROCEEDINGS). TH US, IF ORDER PASSED IN THE ORIGINAL PROCEEDINGS IS ITSELF ILLEGAL, THEN TH AT CANNOT GIVE RISE TO VALID 7 ITA NO. 688 /MUM12016 REVISION PROCEEDINGS. THEREFORE, AS PER LAW, THE VA LIDITY OF THE ORDER PASSED IN THE PRIMARY (ORIGINAL) PROCEEDINGS SHOULD BE ALLOWED TO BE EXAMINED EVEN AT THE SUBSEQUENT STAGES, ONLY FOR TH E LIMITED PURPOSE OF EXAMINING WHETHER THE COLLATERAL (SUBSEQUENT) PROCE EDINGS HAVE BEEN INITIATED ON A VALID LEGAL PLATFORM OR NOT AND FOR EXAMINING THE VALIDITY OF ASSUMPTION OF JURISDICTION TO INITIATE THE COLLATER AL PROCEEDINGS. IF IT IS NOT SO ALLOWED, THEN, IT MAY SO HAPPEN THAT THOUGH ORDER PASSED IN THE ORIGINAL PROCEEDINGS WAS ILLEGAL AND THUS ORDER PAS SED IN THE SUBSEQUENT PROCEEDINGS IN TURN WOULD ALSO BE ILLEGAL, BUT IN A BSENCE OF A REMEDY TO CONTEST THE SAME, IT MAY GIVE RISE TO AN 'ENFORCEAB LE' TAX LIABILITY WITHOUT AUTHORITY OF LAW. THEREFORE, THE COURTS HAVE TAKEN THIS VIEW THAT JURISDICTIONAL ASPECTS OF THE ORDER PASSED IN THE P RIMARY PROCEEDINGS CAN BE EXAMINED IN THE COLLATERAL PROCEEDINGS ALSO. THIS ISSUE IS NOT RES INTEGRA. THIS ISSUE HAS BEEN DECIDED IN MANY JUDGMENTS BY VA RIOUS COURTS, AND SOME OF THEM HAVE BEEN DISCUSSED BY US IN FOLLOWINGS PARAGRAPHS. 8.2. IN A MATTER THAT CAME UP BEFORE HON'BLE SUPREM E COURT IN THE CASE OF KIRAN SINGH & ORS. V. CHAMAN PASWAN & ORS., [1955] 1 5CR 117 THE FACTS WERE THAT THE APPELLANT IN THAT CASE HAD UNDE RVALUED THE SUIT AT RS.2,950 AND LAID IT IN THE COURT OF THE SUBORDINAT E JUDGE, MONGHYR FOR RECOVERY OF POSSESSION OF THE SUIT LANDS AND MESNE PROFITS. THE SUIT WAS DISMISSED AND ON APPEAL IT WAS CONFIRMED. IN THE SE COND APPEAL IN THE HIGH COURT THE REGISTRY RAISED THE OBJECTION AS TO VALUATION UNDER SECTION 11. THE VALUE OF THE APPEAL WAS FIXED AT RS.9,980. A CONTENTION THEN WAS RAISED BY THE PLAINTIFF IN THE HIGH COURT THAT ON ACCOUNT OF THE VALUATION FIXED BY THE HIGH COURT TH E APPEAL AGAINST THE DECREE OF THE COURT OF THE SUBORDINATE JUDGE DID NO T LIE TO THE DISTRICT 8 ITA NO. 688 /MUM12016 COURT, BUT TO THE HIGH COURT AND ON THAT ACCOUNT TH E DECREE OF THE DISTRICT COURT WAS A NULLITY. ALTERNATIVELY, IT WAS CONTENDED THAT IT CAUSED PREJUDICE TO THE APPELLANT. IN CONSIDERING THAT CON TENTION AT PAGE 121, A FOUR JUDGE BENCH OF HON'BLE SUPREME COURT SPEAKING THROUGH VANKATARAMA AYYAR, J. HELD THAT: ' T LT IS A FUNDAMENTAL PRINCIPLE WELL-ESTABLISHED THAT A DECREE PASSED BY A COURT WITHOUT JURISDICTION IS A NULLITY , AND THAT ITS INVALIDITY COULD BE SET UP WHENEVER AND WHEREVER IT IS SOUGHT TO BE ENFORCED OR RELIED UPON, EVEN AT THE STAGE OF EXECU TION AND EVEN IN COLLATERAL PROCEEDINGS. A DEFECT OF JURISDICTION , WHETHER IT IS PECUNIARY OR TERRITORIAL, OR WHETHER IT IS IN RESPE CT OF THE SUBJECT-MATTER OF THE ACTION, STRIKES AT THE VERY A UTHORITY OF THE COURT TO PASS ANY DECREE AND SUCH A DEFECT CANNOT B E CURED EVEN BY CONSENT OF PARTIES.' 8.3. THIS JUDGMENT WAS SUBSEQUENTLY FOLLOWED BY HON'BLE SUPREME COURT IN THE LANDMARK CASE OF SUSHIL KUMAR MEHTA VS GOBIND RAM BOHRA, (1990) 1 SCC 193, WHEREIN AN ISSUE AROSE WHETHER A DECREE CAN BE CHALLENGED AT THE STAGE OF EXECUTION AND WHETHER A DECREE WHICH REMAINED UNCONTESTED OPERATES AS RES-JUDICATA QUA T HE PARTIES AFFECTED BY IT. HON'BLE APEX COURT, TAKING SUPPORT FROM AFOR ESAID JUDGMENT, OBSERVED AS UNDER: 'IN THE LIGHT OF THIS POSITION IN LAW THE QUESTION FOR DETERMINATION IS WHETHER THE IMPUGNED DECREE OF THE CIVIL COURT CAN BE ASSAILED BY THE APPELLANT IN EXECUTION . IT IS ALREADY HELD THAT IT IS THE CONTROLLER UNDER THE AC T THAT HAS EXCLUSIVE JURISDICTION TO ORDER EJECTMENT OF A TENA NT FROM A BUILDING IN THE URBAN AREA LEASED OUT BY THE LANDLO RD. THEREBY 9 ITA NO. 688 /MUM12016 THE CIVIL COURT INHERENTLY LACKS JURISDICTION TO EN TERTAIN THE SUIT AND PASS A DECREE OF EJECTMENT. THEREFORE, THOUGH T HE DECREE WAS PASSED AND THE JURISDICTION OF THE COURT WAS GO NE INTO IN ISSUE NOS. 4 AND 5 AT THE EX-PARTE TRIAL, THE DECRE E THERE-UNDER IS A NULLITY, AND DOES NOT BIND THE APPELLANT. THER EFORE, IT DOES NOT OPERATE AS A RES JUDICATA. THE COURTS BELOW HAV E COMMITTED GRAVE ERROR OF LAW IN HOLDING THAT THE DE CREE IN THE SUIT OPERATED AS RES JUDICATA AND THE APPELLANT CAN NOT RAISE THE SAME POINT ONCE AGAIN AT THE EXECUTION.' 8.4. SIMILAR VIEW HAS BEEN TAKEN BY HON'BLE SUPREME COUR T BY FOLLOWING AFORESAID JUDGMENTS RECENTLY IN THE CASE OF INDIAN BANK VS MANUAL GOVINDJI KHONA REPORTED IN 2015 (3) SCC 712. FURTHER, SIMILAR VIEW WAS EMPHASIZED BY HON'BLE BOMBAY HIGH COURT (GOA BENCH) IN THE CASE OF MAVANY BROTHERS VS CIT (TAX APPEAL NO 8 OF 2007) IN ITS ORDER DT 17TH APRIL, 2015 WHEREIN IT WAS HELD THAT AN ISSUE OF JU RISDICTION CAN BE RAISED AT ANY TIME EVEN IN APPEAL OR EXECUTION. 8.5. THE AFORESAID PRINCIPLES, ENUNCIATED BY THE APEX CO URT IN THE CASE OF KIRAN SINGH & ORS. V. CHAMAN PASWAN & ORS, SUPRA WERE REITERATED BY THE APEX COURT IN THE CASES OF SUPERINTENDENT OF TAXES VS ONKARMAL NATHMAL TRUST (AIR 1975 SC 2065) AND DASA MUNI REDD Y V. APPA RAO (AIR 1974 SC 2089). IN THE FIRST OF THESE DECISIONS IT WAS POINTED OUT THA T REVENUE STATUTES PROTECT THE PUBLIC ON THE ONE HAND AND CONFER POWER UPON THE STATE ON THE OTHER, AND THE FETTER ON THE JURISDICTION IS ONE MEANT TO PROTECT THE PUBLIC ON THE BROADER GROUND O F PUBLIC POLICY AND, THEREFORE, JURISDICTION TO ASSESS OR REASSESS A PER SON CAN NEVER BE WAIVED OR CREATED BY CONSENT. THIS DECISION SHOWS T HAT THE BASIC PRINCIPLE RECOGNIZED IN KIRAN SINGH (SUPRA) IS APPLICABLE EVEN TO REVENUE 10 ITA NO. 688 /MUM12016 STATUTES SUCH AS THE INCOME TAX ACT. DASA MUNI REDDY (SUPRA) IS A JUDGMENT WHERE THE PRINCIPLE OF 'CORAM NON JUDICE' WAS APPLIED TO RENT CONTROL LAW. IT WAS HELD THAT NEITHER THE RULE OF ESTOPPEL NOR T HE PRINCIPLE OF RES LUDICATA CAN CONFER THE COURT JURI SDICTION WHERE NONE EXISTS. HERE ALSO THE PRINCIPLE THAT WAS PUT INTO OPERATION WAS THAT JURISDICTION CANNOT BE CONFERRED BY CONSENT OR AGRE EMENT WHERE IT DID NOT EXIST, NOR CAN THE LACK OF JURISDICTION BE WAIV ED. 8.6. THESE JUDGMENTS WERE SUBSEQUENTLY NOTICED BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF P. V. DOSHI 113 ITR 22(GU JRAT). THIS CASE AROSE UNDER THE INCOME TAX ACT WITH REFERENCE TO THE PROV ISIONS OF SECTION 147 DEALING WITH RE-ASSESSMENT. THE FACTS WERE THAT THE ASSESSMENT WAS SOUGHT TO BE REOPENED UNDER SECTION 147 AND NOTICE UNDER SECTION 148 WAS ISSUED. VALIDITY OF REOPENING WAS NOT CHALLENGE D UPTO TRIBUNAL AND ADDITIONS WERE CHALLENGED ON MERITS ONLY. THE TRIBU NAL RESTORED THE MATTER TO THE ASSESSING OFFICER WITH SOME DIRECTION S TO REEXAMINE THE ISSUE ON MERITS. WHEN THE MATTER CAME BACK TO THE A SSESSING OFFICER THE ASSESSEE SPECIFICALLY RAISED THE POINT OF JURISDICT ION TO REOPEN THE ASSESSMENT, CONTENDING THAT THE NOTICE OF REOPENING WAS PROMPTED BY A MERE CHANGE OF OPINION. THE AO REJECTED PLEA OF THE ASSESSEE BUT THE AAC ACCEPTED THIS GROUND AND ALSO HELD THE REASSESS MENT TO BE BAD IN LAW ON JURISDICTIONAL GROUND. AGAINST THE ORDER OF THE AAC THE REVENUE WENT IN APPEAL BEFORE THE TRIBUNAL AND SPECIFICALLY RAISED THE PLEA THAT THE QUESTION OF JURISDICTION TO REOPEN THE ASSESSME NT HAVING BEEN EXPRESSLY GIVEN UP BY THE ASSESSEE IN THE APPEAL AG AINST THE REASSESSMENT ORDER IN THE FIRST ROUND, THE ASSESSEE WAS DEBARRED FROM RAISING THAT POINT AGAIN BEFORE THE AAC AND THE AAC WAS EQUALLY WRONG IN PERMITTING THE ASSESSEE TO RAISE THAT POINT WHIC H HAD BECOME FINAL IN 11 ITA NO. 688 /MUM12016 THE FIRST ROUND AND IN ADJUDICATING UPON THE SAME. THE PLEA OF THE REVENUE IMPRESSED THE TRIBUNAL WHICH TOOK THE VIEW THAT AFTER ITS EARLIER ORDER IN THE FIRST ROUND OF PROCEEDINGS THE MATTER ATTAINED FINALITY WITH REGARD TO THE POINT OF JURISDICTION W HICH WAS GIVEN UP BEFORE THE AAC AND NOT AGITATED FURTHER AND THAT IN THE RE MAND PROCEEDINGS WHAT WAS OPEN BEFORE THE ASSESSING OFFICER WAS ONLY THE QUESTION WHETHER THE ADDITION WAS JUSTIFIED ON MERITS AND TH E POINT REGARDING THE JURISDICTIONAL ASPECT WAS NOT OPEN BEFORE THE ASSES SING OFFICER. ACCORDING TO THE TRIBUNAL, THE ASSESSEE HAVING RAIS ED THE POINT IN THE FIRST ROUND AND HAVING GIVEN IT UP COULD NOT REVIVE IT IN THE SECOND ROUND OF PROCEEDINGS WHERE THE ISSUE WAS LIMITED TO THE M ERITS OF THE ADDITIONS. IN THIS VIEW, THE TRIBUNAL ACCEPTED THE REVENUES PLEA. THE ASSESSEE THEREAFTER CARRIED ORDER OF THE TRIBUNAL I N REFERENCE BEFORE THE GUJARAT HIGH COURT. THE HIGH COURT AFTER CONSIDERIN G VARIOUS JUDGMENTS OF THE SUPREME COURT ON THE POINT OF JURISDICTION T O REOPEN THE ASSESSMENT AND ALSO AFTER SPECIFICALLY DISCUSSING T HE JUDGMENT OF THE SUPREME COURT IN ONKARMAL NATHMAL TRUST (SUPRA) AND DASA MUNI REDDY (SUPRA) HELD THAT THE TRIBUNAL WAS IN ERROR IN HOLDING THAT THE QUESTION OF JURISDICTION BECAME FINAL WHEN IT PASSE D THE EARLIER REMAND ORDER. IT WAS HELD THAT NEITHER THE QUESTION OF RES JUDICATA NOR THE RULE OF ESTOPPEL COULD BE INVOKED WHERE THE JURISDICTION OF AN AUTHORITY WAS UNDER CHALLENGE. ACCORDING TO HON'BLE GUJARAT HIGH COURT, THE RULE O F RES JUDICCITCI CANNOT BE INVOKED WHERE THE QUESTION INVOLVED IS TH E COMPETENCE OF THE COURT TO ASSUME JURISDICTION, EIT HER PECUNIARY OR TERRITORIAL OR OVER THE SUBJECT MATTER OF THE DISPU TE. HON'BLE HIGH COURT FURTHER HELD THAT SINCE NEITHER CONSENT NOR WAIVER CAN CONFER JURISDICTION UPON THE ASSESSING OFFICER WHERE IT DID NOT EXIST, NO IMPORTANCE COULD 12 ITA NO. 688 /MUM12016 BE ATTACHED TO THE FACT THAT THE ASSESSEE, IN THE F IRST ROUND OF PROCEEDINGS, EXPRESSLY GAVE UP THE PLEA AGAINST THE ERRONEOUS ASSUMPTION OF JURISDICTION BY THE ASSESSING AUTHORI TY. ACCORDING TO THE HON'BLE COURT, THE 'FINALITY OR CONCLUSIVENESS COULD ONLY ARISE IN RES PECT OF ORDERS WHICH ARE COMPETENT ORDERS WITH JURISDICTION AND IF THE PROCEEDINGS OF REASSESSMENT ARE NOT VALIDLY INITIAT ED AT ALL, THE ORDER WOULD BE A VOID ORDER AS PER THE SETTLED LEGAL POSI TION WHICH COULD NEVER HAVE ANY FINALITY OR CONCLUSIVENESS. IF THE O RIGINAL ORDER IS WITHOUT JURISDICTION, IT WOULD BE ONLY A NULLITY CO NFIRMED IN FURTHER APPEALS'. IN THIS VIEW OF THE MATTER, HON'BLE HIGH COURT FINA LLY ANSWERED THE REFERENCE IN FAVOUR OF THE ASSESSEE. 8.7. IT IS FURTHER NOTED THAT MANY OF THESE JUDGMENTS WE RE DISCUSSED AND FOLLOWED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL I N THE CASE OF INDIAN FARMERS FERTILIZERS CO-OPERATIVE LTD VS KIT 105 LTD 33 (DEL), WHEREIN A SIMILAR ISSUE HAD ARISEN. IN THIS CASE, THE ISSUE R AISED BEFORE THE BENCH WAS WHETHER IT IS OPEN TO THE ASSESSEE, NOT HAVING APPEALED AGAINST THE REASSESSMENT ORDER, TO SET UP OR CANVASS ITS CORRECTNESS IN COLLATERAL PROCEEDINGS TAKEN FOR RECTIFICATION THEREOF U/S 154 . THE BENCH MINUTELY ANALYSED LAW IN THIS REGARD AND APPLYING THE PRINCI PLE OF 'CORAM NON JUDICE' AND FOLLOWING AFORESAID JUDGMENTS OF THE SUPREME CO URT, IT WAS HELD THAT IF AN ASSESSEE SEEKS TO CHALLENGE THE REASSESSMENT PROCEEDINGS AS BEING WITHOUT JURISDICTION, WHEN ACT ION FOR RECTIFICATION IS SOUGHT TO BE TAKEN ON THE ASSUMPTION OF THE VALI DITY OF THE REASSESSMENT ORDER, THEN THE ASSESSEE HAS TO STEP I N AND PROTECT ITS INTERESTS AND THE LIBERTY TO QUESTION EVEN THE VALI DITY OF THE REASSESSMENT PROCEEDINGS OUGHT TO BE GIVEN TO IT... ... . ' (EMPHASIS SUPPLIED). 13 ITA NO. 688 /MUM12016 8.8. SIMILAR VIEW WAS TAKEN IN ANOTHER DECISION OF THE T RIBUNAL IN THE CASE OF DHIRAJ SURI VS ACIT 98 LTD 87 (DEL). IN THE SAID CASE, APPEAL WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AGAINST THE LEVY OF PE NALTY. IN THE APPEAL CHALLENGING THE PENALTY ORDER, THE ASSESSEE CHALLEN GED THE VALIDITY OF BLOCK ASSESSMENT ORDER WHICH HAD DETERMINED THE TAX LIABI LITY OF THE ASSESSEE ON THE BASIS OF WHICH PENALTY WAS LEVIED SUBSEQUENTLY. THE REVENUE OBJECTED WITH RESPECT TO THE GROUND OF THE ASSESSEE RAISING JURIS DICTIONAL ISSUES OF ASSESSMENT PROCEEDINGS IN THE APPEAL AGAINST THE PE NALTY ORDER. AFTER ANALYSING THE LEGAL POSITION, AS CLARIFIED BY HON'B LE GUJRAT HIGH COURT IN THE CASE OF P.V. DOSHI, SUPRA AND HON'BLE BOMBAY HIGH COURT IN THE CASE OF JAINARAVAN BABULAL VS CIT. 170 ITR 399, THE BENCH HELD AS THAT IF THE BLOCK ASSESSMENT ITSELF IS WITHOUT JURISDICTION THEN THER E IS NO QUESTION OF LEVY OF ANY PENALTY U/S. 158BFA(2) AND THEREFORE IT IS OPEN TO THE ASSESSEE TO SET UP THE QUESTION OF VALIDITY OF THE ASSESSMENT IN THE A PPEAL AGAINST THE LEVY OF PENALTY. 8.9. WE ALSO DERIVE SUPPORT FROM ANOTHER JUDGEMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPORATION LTD VS CIT 194 ITR 548 (BOMBAY) WHEREIN IT WAS HELD THAT ASSESSEE WAS ENTITLED TO C HALLENGE THE JURISDICTION OF THE AO TO INITIATE RE-ASSESSMENT PR OCEEDINGS BEFORE THE CIT(A) IN THE SECOND ROUND OF PROCEEDINGS, EVEN THOUGH HE HAD NOT RAISED IT IN EARLIER PROCEEDINGS BEFORE THE ASSESSING OFFICER OR IN THE EARLIER APPEAL. 8.10. THUS, ON THE BASIS OF AFORESAID DISCUSSION WE CAN S AFELY HOLD THAT AS PER LAW, THE ASSESSEE SHOULD BE PERMITTED TO CHALLENGE THE VALIDITY OF ORDER PASSED U/S 263 ON THE GROUND THAT THE IMPUGNED ASSESSMENT ORDER WAS NON EST AND WE HOLD ACCORDINGLY. 14 ITA NO. 688 /MUM12016 9. WHETHER THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3) DATED 24-10- 2013 WAS VALID IN THE EYES OF LAW OR A NULLITY AS H AS BEEN CLAIMED BY THE ASSESSEE ON THE GROUND THAT IT WAS FRAMED IN THE HA NDS OF A NON-EXISTING COMPANY. 9.1 NOW WE PROCEED TO DECIDE THE ISSUE RAISED BY THE AS SESSEE THAT THE IMPUGNED ASSESSMENT ORDER DATED 24-10-2013 ON THE G ROUND THAT THE SAME WAS NON EST FOR THE REASON THAT IT HAS BEEN FRAMED IN THE HANDS OF A NON EST ENTITY, SINCE WLPL HAD GOT AMALGAMATED INTO WDL AT THE TIME OF FRAMING OF THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. THE REQUISITE FACTS AND CHRONOLOGY OF EVENTS BROUGHT OUT BY THE ASSESSEE BE FORE US ARE AS UNDER: S.NO. DATE PARTICULARS (1) 22.01.2008 WESTPOINT REALTORS PVT. LTD., INCORP ORATED. (2) 30.06.2011 NAME OF THE COMPANY CHANGED FROM WES TPOINT REALTORS PVT. LTD. TO WESTPOINT LEISUREPARKS PVT. L TD. REFERRED TO AS WLPL). (3) 23.07.2013 WESTPOINT LEISUREPARKS PVT. LTD., AM ALGAMATED WITH WESTLIFE DEVELOPMENT LTD.( REFERRED TO AS WDL). (4) 03.09.2013 ASSESSEE INTIMATED TO THE ASSESSING OFFICER THE FACT OF AMALGAMATION. COPY OF SCHEME AS WELL AS HIGH COURT ORDER SUBMITTED TO THE ASSESSING OFFICER (ENCLOSED AT PAGE NUMBER 57 OF P.B). (5) 24.10.2013 ASSESSMENT ORDER PASSED BY THE ASSES SING OFFICER IN THE NAME OF ERSTWHILE COMPANY WESTPOINT LEISUREPARKS PVT. LTD. (6) 22.12.2015 LD. CIT HAS REVISED THE ABOVE REFERR ED ASSESSMENT ORDER VIDE IMPUGNED ORDER PASSED U/S 263 OF THE ACT. 9.2. DURING THE COURSE OF HEARING BEFORE US, OUR AT TENTION HAS BEEN DRAWN BY LD. COUNSEL UPON LETTER DATED 03-09-2013 FILED BEFO RE THE ASSESSING OFFICER DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING S INTIMATING HIM ABOUT THE AMALGAMATION OF ERSTWHILE COMPANY WLPL WITH WDL, CO PY OF WHICH IS PLACED AT PAPER BOOK PAGE 57. IT IS NOTED THAT IN THE SAID LETTER THE ASSESSEE HAS 15 ITA NO. 688 /MUM12016 BROUGHT OUT COMPLETE FACTS AND FIGURES MENTIONING A BOUT THE FACT OF AMALGAMATION. LD. CIT-DR EXPRESSED DOUBTS ABOVE FIL ING OF THIS LETTER BEFORE THE AO AND THEREFORE TO CLARIFY ALL THE DOUBTS IN T HIS REGARD, FURTHER TIME WAS GIVEN TO HIM TO VERIFY AND PRODUCE THE ASSESSMENT R ECORDS. ACCORDINGLY, ON THE NEXT DATE OF HEARING ASSESSMENT RECORDS WERE PRODUC ED AND IT WAS CONFIRMED BY LD. CIT-DR THAT THIS LETTER WAS AVAILABLE IN THE ASSESSMENT RECORDS. WE ALSO EXAMINED THE RECORDS TO CROSS VERIFY THIS FACT. WE FIND IT APPROPRIATE TO REPRODUCE THE CONTENTS OF THE SAID LETTER AS UNDER: - I,3RD SEPTEMBER, 2013 TO, THE INCOME TAX OFFICER 5(3)-4, ROOM NO. 565, AAYAKARBHAVAN, M. K. ROAD, MUMBAI - 400 020 DEAR SIR, RE: TRANSFER OF INCOME TAX PAYABLEL REFUND RECEIVAB LE BY ERSTWHILE WESTPOINT LEISUREPARKS PYT. LTD. (WLPL) REF: PAN NO. AAACW7598L ALLOTTED TO WLPL THIS IS TO INFORM YOU THAT PURSUANT TO A COMPOSITE SCHEME OF ARRANGEMENT AMONG, INTER A/IA, 'OURSELVES AND WLPL SANCTIONED BY THE BOMBAY HIGH COURT ON 19TH JULY, 2013, WLPL H AS AMALGAMATED WITH OUR COMPANY W.E.F. 23RD JULY, 2013 (THE EFFECTIVE DATE). CONSEQUENT UPON SUCH AMALGAMATION, ALL ASSETS AND LIABILITIES OF WLPL STANDS TRANSFERRED TO AND V ESTED IN OUR COMPANY FROM THE EFFECTIVE DATE. A COPY OF THE SCHE ME ALONGWITH THE HIGH COURT ORDER IS ENCLOSED FOR YOUR REFERENCE AND RECORD. AS A RESULT, TAX REFUNDS RECEIVABLE-BY WLPL AND OBL IGATIONS OF EVERY KIND (INCLUDING ANY PROCEEDINGS) AGAINST OR I N FAVOUR OF WLPL ON THE EFFECTIVE DATE ARE DEEMED TO HAVE BEEN TRANSFERRED TO US. OUR DETAILS ARE AS UNDER: NAME : WESTLIFE DEVELOPMENT LTD DETAILS BANK NAME OF THE BANK : IDBI BANK LTD 16 ITA NO. 688 /MUM12016 ADDRESS : VENKATESH CHAMBERS PRESCOT ROAD, FORT MUM BAI-400 001 CURRENTA/CNO .. 45212010004794 PAN NO. .. AAACD0528K ADDRESS : 1001, TOWER-S, 10TH FLOOR, INDIABULLS FINANCE CENTRE, SENAPATI BO POT MARG, E/PHINSTONE ROAD, MUMBAL- 400 013 KINDLY MAKE A NOTE OF THE TRANSFER IN YOUR RECORDS AND CONFIRM YOUR HAVING DONE.' 9.3. IT IS ALSO SHOWN TO US THAT THIS LETTER HAS BEEN DU LY ACKNOWLEDGED BY THE OFFICE OF THE INCOME-TAX OFFICER, RANGE 5(3)(4) (I.E. THE AO) ON 06-09- 2013. OUR ATTENTION WAS ALSO DRAWN ON THE COPY OF O RDER OF HON'BLE BOMBAY HIGH COURT DATED 19H JULY, 2013 FOR EFFECTIN G THE AMALGAMATION OF TWO COMPANIES. OUR ATTENTION WAS FURTHER DRAWN O N THE FACT THAT THE PERMANENT ACCOUNT NUMBER BELONGING TO WDL WAS ALSO BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER. OUR ATTENTION WAS ALSO DRAWN ON SUBSEQUENT LETTERS FILED BEFORE ASSESSING OFFICER. FOR EXAMPLE, LETTER DT 21-10-2013 (PAPER BOOK PAGE 107-108) SHOWING THAT A LL SUBSEQUENT REPLIES WERE WRITTEN BY WDL AND SUBMITTED TO THE AO ON ITS LETTERHEAD. ALL THESE DOCUMENTARY EVIDENCES WERE SHOWN TO BRING HOME THE POINT THAT THE FACTUM OF AMALGAMATION WAS VERY MUCH IN TH E KNOWLEDGE OF ASSESSING OFFICER AND THUS ASSESSING OFFICER WAS AW ARE THAT WLPL WAS NO MORE IN EXISTENCE. THEREFORE, BY FRAMING THE ORDER UPON WLPL, A GRAVE ERROR WAS COMMITTED AND IT WAS A CASE OF JURISDICTI ONAL LAPSE ON THE PART OF THE ASSESSING OFFICER AND THUS, THE RESULTANT ORDER WAS NULLITY IN THE EYES OF LAW. 17 ITA NO. 688 /MUM12016 9.4. ON THE OTHER HAND, IT HAS BEEN ARGUED BY THE LD. CI T-DR THAT IT WAS MERELY A PROCEDURAL DEFECT WHICH WAS CURABLE AND DOES NOT MAKE THE ORDER A NULLITY. IT WAS FURTHER ARGUED BY THE LD. CIT-DR THAT THE SA ME WAS CURABLE U/S 292BB AND SINCE THE ASSESSEE HAD PARTICIPATED IN THE PROC EEDINGS, THEREFORE, THE ASSESSEE COULD NOT CHALLENGE THE RESULTANT ASSESSME NT ORDER AS NULLITY IN THE EYES OF LAW. 9.5. WE HAVE CAREFULLY GONE THROUGH THE FACTS OF THE CAS E AND SUBMISSIONS MADE BY BOTH THE SIDES BEFORE US. WE HAVE ALSO GONE THROUGH THE LEGAL POSITION IN THIS REGARD. IT IS NOTED BY US THAT THI S ISSUE IS NO MORE RES INTEGRA. ALL THE ARGUMENTS MADE BY THE LD. CIT-DR HAVE ALREA DY BEEN ADDRESSED BY MANY COURTS. THE JUDGEMENTS RELIED UPON BY LD. COUN SEL ARE DIRECTLY ON THIS ISSUE AND SQUARELY COVERS THESE ISSUES. 9.6. IN ADDITION TO THAT, IT IS NOTED THAT INTERESTINGLY , HON'BLE BOMBAY HIGH COURT RECENTLY DECIDED IDENTICAL ISSUE IN ITS JUDGMENT IN THE CASE OF JITENDRA JITENDRA JITENDRA JITENDRA CHANDRALAL NAV CHANDRALAL NAV CHANDRALAL NAV CHANDRALAL NAVLANI LANI LANI LANI & ANR VS UOI ANR VS UOI ANR VS UOI ANR VS UOI IN WRIT PETITION NO. 1069 OF 2016 VIDE ORDER 81H JUNE, 2016 AS UNDER: 'ON RECEIPT OF THE REOPENING NOTICE, THE CHARTERED ACCOUNTANT OF THE ERSTWHILE M/S. ADDLER SECURITY SYSTEMS PVT. LTD., H AD ORIGINALLY ACCEPTED THE SOME BUT IMMEDIATELY THEREAFTER BY LETTER DATED 5TH MAY, 2015 POINTED OUT THAT THE COMPANY M/S. ADDIER SECURITY S YSTEMS PVT. LTD. IS NO LONGER IN EXISTENCE AS IT HAS BEEN DISSOLVED. CONSE QUENT THERETO, THE ASSESSING OFFICER HAS ALSO ISSUED A NOTICE UNDER SE CTION 142(1) OF THE ACT TO ONE OF THE PETITIONER WHO WAS THE DIRECTOR OF ER STWHILE M/S. ADDLER SECURITY SYSTEMS PVT. LTD. (SINCE DISSOLVED). IN RESPONSE, THE DIRECTOR OF THE ERSTWHILE M/S. ADDLER SECURITY SYSTEMS PVT. LTD., POINTED OUT THAT THE COMPANY HAS ALREADY BEEN DISSOLVED AND IT IS NO LONGER IN EXISTENCE. NOTWITHSTANDING THE ABOVE, THE ASSESSING OFFICER 18 ITA NO. 688 /MUM12016 BY AN ORDER DATED 28TH MARCH, 2016 HAS PASSED THE I MPUGNED ORDER FRAMING THE ASSESSMENT IN CASE OF M/S. ADDLER SECUR ITY SYSTEMS PVT. LTD. (SINCE DISSOLVED) FOR ASSESSMENT YEAR 2008-09. 4. NORMALLY WE WOULD NOT HAVE ENTERTAINED A PETITIO N AS AN ALTERNATIVE REMEDY TO FILE AN APPEAL IS AVAILABLE TO THE PETITI ONERS. HOWEVER, PRIMA FACIE, THE IMPUGNED NOTICE HAS BEEN ISSUED IN RESPE CT OF A NON EXISTING ENTITY AS MIS. ADDLER SECURITY SYSTEMS PVT. LTD., WHICH STANDS DIS SOLVED, HAVING BEEN STRUCK OFF THE ROLLS OF THE REGISTRAR OF COMPANIES MUCH BEFORE ITS ISSUE. CONSEQUENTLY, THE ASSESSMENT HAS BEEN FRAMED ALSO I N RESPECT OF THE NON-EXISTING ENTITY. THIS DEFECT IN ISSUING A REOPENING NOTICE TO A NON-EXISTING COMPANY AND FRAMING AN ASS ESSMENT CONSEQUENT THERETO IS AN ISSUE WHICH GOES TO THE RO OT OF THE JURISDICTION OF THE ASSESSING OFFICER TO ASSESS THE NON-EXISTING COMPANY. THUS, PRIMA FADE, BOTH THE IMPUGNED NOTICE DATED 24TH MAR CH, 2015 AND THE ASSESSMENT ORDER DATED 28TH MARCH, 2016, ARE WITHOU T JURISDICTION.' (EMPHASIS SUPPLIED). 9.7. FURTHER, RECENTLY, THE CO-ORDINATE BENCH OF HA T MUMBAI DECIDED IDENTICAL ISSUE IN THE CASE OF M/S GENESYS WORLDEYE LTD IN ITA NO.473/MUM/2012 ORDER DATED 03-06-2016 IN WHICH ONE OF US (AM) WAS A PARTY. THE RELEVANT P ART OF THIS ORDER IS REPRODUCED HEREUNDER: '4.8. IN OUR VIEW, THIS ARGUMENT OF THE LD. DR IS ALSO NOT IN ACCORDANCE WITH LAW. THE ASSESSMENT IS TO BE MADE B Y THE AO IN ACCORDANCE WITH LAW. THE JURISDICTION TO FRAM E THE ASSESSMENT ORDER UPON A PARTICULAR PERSON CAN BE MADE BY THE AO IN ACCORDANCE WITH THE LAW ONLY. THE JURISDICTION TO FRAME AN ASSESSMENT CAN NEITHER BE CONFERRED NOR CAN IT BE TAKEN AWAY BY AN ASSESSEE O R ANY OTHER PERSON FROM THE AO ON THE BASIS OF THEIR CONSENT OR OTHERWISE. IF THE ASSESSMENT ORDERS ARE FRAMED ON T HE BASIS OF CONSENT OR OBJECTION OF THE ASSESSEE 'S AL ONE THEN IT 19 ITA NO.688 /MUM/2016 WOULD GIVE RISE TO A CHAOTIC SITUATION. THUS, IT IS FOR THE AO TO CAREFULLY DETERMINE HIS JURISDICTION TO MAKE AN ASSESSMENT IN A LAWFUL MANNER UPON THE APPROPRIATE PERSON AND THE OBLIGATION TO DO SO REST SOLELY UPON THE SHOULDERS OF THE AO WHICH HE IS OBLIGED TO FULFIL B Y FOLLOWING DUE PROCESS OF LAW. THERE IS NO ESTOPPEL AGAINST LAW. IF AN ASSESSMENT ORDER IS FRAMED WITHOUT THE AUTHORITY OF LAW, THEN, THE SAME WOULD BE NULLITY I N THE EYES OF LAW, AS NO TAX CAN BE COLLECTED WITHOUT THE AUTHORITY OF LAW, AS HAS BEEN CLEARLY LAID DOWN IN ARTICLE 265 OF OUR CONSTITUTION. 4.9. IT IS NOTED BY US THAT ALL THESE ISSUES AND AR GUMENTS HAVE ALREADY BEEN DEALT WITH AND THIS ENTIRE CONTRO VERSY HAS ALREADY BEEN PUT TO REST BY VARIOUS COURTS IN THEIR JUDGMENTS. HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD (SUPRA) HAS ANALYSED THIS ENTIRE CONTROVERSY IN DETAIL AND HELD THAT ASSESSMENT ORDER PASSED UNDER SUCH CIRCUM STANCES WOULD BE NULLITY IN THE EYES OF LAW. THE RELEVANT O BSERVATIONS OF THE HON'BLE HIGH COURT IN THE SAID CASE ARE VERY USEFUL TO DEAL WITH THIS CONTROVERSY AND THE SAME ARE REPRODU CED HEREUNDER FOR THE SAKE OF READY REFERENCE: '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, THEREF ORE, 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 RATION DECIDED IN THE VARIOUS CASES RELIED UPON BY THE LEARNED 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 AMALGAMATED COMPANY ALONGWITH 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 20 ITA NO. 688 /MUM12016 PROCEDURAL DEFECT COVERED BY SECTION 292B OF THE AC T. WE HOLD ACCORDINGLY.' 7. THE AFORESAID LINE OF REASONING ADOPTED BY THE TRIB UNAL IS CLEARLY BLEMISHED WITH LEGAL LOOPHOLES AND IS CONTR ARY TO LAW. NO DOUBT, M/S SPICE WAS AN ASSESSEE AND AS AN INCORPORATED COMPANY AND WAS IN EXISTENCE WHEN IT F ILED THE RETURNS IN RESPECT OF TWO ASSESSMENT YEARS IN QUESTIONS. HOWEVER, BEFORE THE CASE COULD BE SELECTED FOR SCRU TINY AND ASSESSMENT PROCEEDINGS COULD BE INITIATED, M/S SPIC E GOT AMALGAMATED WITH MCORP PUT. LTD. IT WAS THE RESULT OF THE SCHEME OF THE AMALGAMATION FILED BEFORE THE COMPANY JUDGE OF THIS COURT WHICH WAS DULLY SANCTIONED VIDE ORDERS D ATED 11TH FEBRUARY, 2004. WITH THIS AMALGAMATION MADE EF FECTIVE FROM 1ST JULY, 2003, M/S SPICE CEASED TO EXIST. THA T IS THE PLAIN AND SIMPLE EFFECT IN LAW. THE SCHEME OF AMALG AMATION ITSELF PROVIDED FOR THIS CONSEQUENCE, INASMUCH AS SIMULTANEOUS WITH THE SANCTIONING OF THE SCHEME, M/ S SPICE WAS ALSO STOOD DISSOLVED BY SPECIFIC ORDER OF THIS COURT. WITH THE DISSOLUTION OF THIS COMPANY, ITS NAME WAS STRUCK OFF FROM THE ROLLS OF COMPANIES MAINTAINED BY THE REGISTRAR OF COMPANIES. 8. A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT IS A JURISTIC PERSON. IT TAKES ITS BIRTH AND GE TS LIFE WITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW TH AT ON AMALGAMATION, THE AMALGAMATING COMPANY CEASES TO EX IST IN THE EYES OF LAW. THIS POSITION IS EVEN ACCEPTED BY THE TRIBUNAL IN PARA-14 OF ITS ORDER EXTRACTED ABOVE. H AVING REGARD THIS CONSEQUENCE PROVIDED IN LAW, IN NUMBER OF CASES, THE SUPREME COURT HELD THAT ASSESSMENT UPON A DISSO LVED COMPANY IS IMPERMISSIBLE AS THERE IS NO PROVISION I N INCOME- TAX TO MAKE AN ASSESSMENT THEREUPON. IN THE CASE OF SARASWATI INDUSTRIAL SYNDICATE LTD. VS. CIT, 186 IT R 278 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 SECTION 41(1) OF THE ACT. THE AMALGAMATION OF THE TWO COMPANIES WAS EFFECTED UNDER THE ORDER OF THE HIGH COURT IN PROCEEDINGS UNDER SECTION 21 ITA NO. 688 /MUM12016 391 READ WITH SECTION 394 OF THE COMPANIES ACT. THE SARASWATI INDUSTRIAL SYNDICATE, THE TRANS FREE 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 OCTOBER, 1962 AND IT CEASED TO BE IN EXISTENCE THEREAFTER. THOUGH THE SCHEME PROVIDED THAT THE TRANSFEREE COMPANY THE SARASWATI INDUSTRIAL SYNDICATE LTD. UNDERTOOK TO MEET ANY LIABILITY OF T HE INDIAN SUGAR COMPANY WHICH THAT COMPANY INCURRED OR IT COU LD INCUR, ANY LIABILITY, BEFORE THE DISSOLUTION OR NOT THEREAFTER. GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CH ANGE AND THE RIGHTS OF THE SHARE HOLDERS AND CREDITORS ARE VARIED, IT AMOUNTS TO RECONSTRUCTION OR REORGANISATION OR 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 M ORE EXISTING UNDERTAKINGS INTO ONE UNDERTAKING, THE SHA RE HOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAR E HOLDERS IN THE COMPANY WHICH IS TO CARRY ON THE BLENDED UNDERTAKINGS. THERE MAY BE AMALGAMATION EITHER BY T HE TRANSFER OF TWO OR MORE UNDERTAKINGS TO A NEW COMPANY, OR BY THE TRANSFER OF ONE OR MORE UNDERTAKINGS TO AN E XISTING COMPANY. STRICTLY AMALGAMATION DOES NOT COVER THE M ERE ACQUISITION BY A COMPANY OF THE SHARE CAPITAL OF OTHER COMPANY WHICH REMAINS IN EXISTENCE AND CONTINUES IT S UNDERTAKING BUT THE CONTEXT IN WHICH THE TERM IS US ED MAY SHOW THAT IT IS INTENDED TO INCLUDE SUCH AN ACQUISI TION. SEE HALSBURYS LAWS OF ENGLAND 4TH EDITION VOL. 7 PARA 1539. TWO COMPANIES MAY JOIN TO FORM A NEW COMPANY, BUT T HERE MAY BE ABSORPTION OR BLENDING OF ONE BY THE OTHER, BOTH AMOUNTS TO AMALGAMATION. WHEN TWO COMPANIES ARE MER GED AND ARE SO JOINED, AS TO FORM A THIRD COMPANY OR ON E IS ABSORBED INTO ONE OR BLENDED WITH ANOTHER, THE AMAL GAMATING COMPANY LOSES ITS ENTITY.' 9. THE COURT REFERRED TO ITS EARLIER JUDGMENT IN GE NERAL RADIO AND APPLIANCES CO. LTD. VS M.A. KHADER (1986) 60 CO MP CASE 1013. IN VIEW OF THE AFORESAID CLINCHING POSITION IN LAW, IT IS DIFFICULT TO DIGEST THE CIRCUITOUS ROUTE ADOPTED BY THE 22 ITA NO. 688 /MUM12016 TRIBUNAL HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMATED COMPANY AND THERE WAS ONLY A PROCEDU RAL DEFECT. 10. SECTION 481 OF THE COMPANIES ACT PROVIDES FOR DISSOLUTION OF THE COMPANY. THE COMPANY JUDGE IN TH E HIGH COURT CAN ORDER DISSOLUTION OF A COMPANY ON THE GRO UNDS STATED THEREIN. THE EFFECT OF THE DISSOLUTION IS TH AT THE COMPANY NO MORE SURVIVES. THE DISSOLUTION PUTS AN E ND TO THE EXISTENCE OF THE COMPANY. IT IS HELD IN M.H. SMITH (PLANT HIRE) LTD. VS. D.L. MAINWARING (T/A INSHORE), 1986 BCLC 3 42 (CA) THAT 'ONCE A COMPANY IS DISSOLVED IT BECOMES A NON- EXISTENT PARTY AND THEREFORE NO ACTION CAN BE BROUGHT IN ITS NAME. THUS AN INSURANCE COMPANY WHICH WAS SUBROGATED TO T HE RIGHTS OF ANOTHER INSURED COMPANY WAS HELD NOT TO B E ENTITLED TO MAINTAIN AN ACTION IN THE NAME OF THE COMPANY AF TER THE LATTER HAD BEEN DISSOLVED'. 11. AFTER THE SANCTION OF THE SCHEME ON 11TH APRIL, 200 4, 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 BRO UGHT 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. 12. ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE N AME OF NON-EXISTING ENTITY, IT DOES NOT REMAIN A PROCEDURA L IRREGULARITY OF THE NATURE WHICH COULD BE CURED BY INVOKING THE PROVISIONS OF SECTION 292B OF THE ACT. SECTION 292B OF THE ACT READS AS UNDER:- '292B. NO RETURN OF INCOME ASSESSMENT, NOTICE, SUMM ONS OR OTHER PROCEEDINGS FURNISHED OR MADE OR ISSUE OR TAK EN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN 23 ITA NO. 688 /MUM12016 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 OTHER 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 O F THIS PROVISION IN CIT VS. NORTON MOTORS, 275 ITR 59 5 IN THE FOLLOWING MANNER:- 'A READING OF THE ABOVE REPRODUCED PROVISION MAKES IT CLEAR THAT A MISTAKE, DEFECT OR OMISSION IN THE RETURN OF INCOME, 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 PROVI SIONS OF THE ACT. TO PUT IT DIFFERENTLY, SECTION 292B CAN BE REL IED UPON FOR RESISTING A CHALLENGE TO THENOTICE, ETC., ONLY IF THERE IS A TECHNICAL DEFECT OR OMISSION IN IT. HOWEVER, THERE IS NOTHING IN THE PLAIN LANGUAGE OF THAT SECTION FROM WHICH IT CA N BE INFERRED THAT THE SAME CAN BE RELIED UPON FOR CURIN G A JURISDICTIONAL DEFECT IN THE ASSESSMENT NOTICE, SUM MONS OR OTHER PROCEEDING. IN OTHER WORDS, IF THE NOTICE, SUMMONS OR OTHER PROCEEDING TAKEN BY AN AUTHORITY SUFFERS FROM AN INHERENT LACUNA AFFECTING HIS/ITS JURISDICTION, THE SAME CANNOT BE CURED BY HAVING RESORT TO SECTION 292B. 14. THE ISSUE AGAIN CROPPED UP BEFORE THE COURT IN CIT VS. HARJINDER KAUR (2009) 222 CTR 254 (P&H). THAT WAS A CASE WHERE RETURN IN QUESTION FILED BY THE ASSESSEE WAS NEITHER SIGNED BY THE ASSESSEE NOR VERIFIED IN TERMS OF THE MANDATE OF SECTION 140 OF THE ACT. THE COURT WAS OF THE OPINION THAT SUCH A RETURN CANNOT BE TREATED AS RETURN EVEN A RE TURN FILED BY THE ASSESSEE AND THIS INHERENT DEFECT COULD NOT BE CURED INSPITE OF THE DEEMING EFFECT OF SECTION 292B OF TH E ACT. THEREFORE, THE RETURN WAS ABSOLUTELY INVALID AND AS SESSMENT COULD NOT BE MADE ON A INVALID RETURN. IN THE PROCE SS, THE COURT OBSERVED AS UNDER:- 24 ITA NO. 688 /MUM12016 'HAVING GIVEN OUR THOUGHTFUL CONSIDERATION TO THE S UBMISSION ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT, WE ARE OF THE VIEW THAT THE PROVISIONS OF SECTION 292B OF THE 1961 ACT DO NOT AUTHORIZE THE AO TO IGNORE A DEFECT OF A SUBSTANTIVE NATURE AND IT IS, THEREFORE, THAT THE AFORESAID PRO VISION CATEGORICALLY RECORDS THAT A RETURN WOULD NOT BE TR EATED AS INVALID, IF THE SAME 'IN SUBSTANCE AND EFFECT IS IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT'. INSOFAR AS THE RETURN UNDER REFERENCE IS CONCERNED, IN TERMS OF SECTION 140 OF THE 1961 ACT, THE SAME CANNOT BE TREATED TO BE EVEN A RETURN FILED BY THE RESPONDENT ASSESSE E, AS THE SAME DOES NOT EVEN BEAR HER SIGNATURES AND HAD NOT EVEN BEEN VERIFIED BY HER. IN THE AFORESAID VIEW OF THE MATTER, IT IS NOT POSSIBLE FOR US TO ACCEPT THAT THE RETURN ALLEG EDLY FILED BY THE ASSESSEE WAS IN SUBSTANCE AND EFFECT IN CONFORM ITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. THUS VIEWED, IT IS NOT POSSIBLE FOR US TO ACCEPT THE CON TENTION ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT O N THE BASIS OF SECTION 292B OF THE 1961 ACT. THE RETURN UNDER REFERENCE, WHICH HAD BEEN TAKEN INTO CONSIDERATION 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 SECTION 292B OF THE 1961 ACT.' 15. LIKEWISE, IN THE CASE OF SRI NATH SURESH CHAND RAM NARESH VS. CIT (2006) 280 ITR 396, THE ALLAHABAD HI GH COURT HELD THAT THE ISSUE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT IS A CONDITION PRECEDENT TO THE VALIDITY OF ANY ASSESSMENT ORDER TO BE PASSED UNDER SECTION 147 OF THE ACT AND WHEN SUCH A NOTICE IS NOT ISSUED AND ASSESSMENT MADE, SUCH A DEFECT CANNOT BE TREATED AS CURED UNDER SECT ION 292B OF THE ACT. THE COURT OBSERVED THAT THIS PROVISIONS CONDONES THE INVALIDITY WHICH ARISES MERELY BY MIST AKE, DEFECT OR OMISSION IN A NOTICE, IF IN SUBSTANCE AND EFFECT IT IS IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND P URPOSE OF THIS ACT. SINCE NO VALID NOTICE WAS SERVED ON THE A SS ESSEE TO REASSESS THE INCOME, ALL THE CONSEQUENT PROCEEDINGS WERE NULL AND VOID AND IT WAS NOT A CASE OF IRREGULARITY. THEREFORE, SECTION 292B 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 25 ITA NO. 688 /MUM12016 OF SECTION 292B OF THE ACT ARE NOT APPLICABLE IN SU CH A CASE. THE FRAMING OF ASSESSMENT AGAINST A NON-EXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. 17. THE ORDER OF THE TRIBUNAL IS, THEREFORE, CLEARLY UNSUSTAINABLE. WE, THUS, DECIDE THE QUESTIONS OF LA W IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND ALLOW THESE APPEALS.' 4.10. THIS JUDGMENT WAS SUBSEQUENTLY FOLLOWED BY ANOTHER DETAILED JUDGMENT BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. DIMENSION APPARELS PVT. LTD. (SUPRA) WHEREIN ALL THE ARGUMENTS WHICH HAVE BEEN MADE BEFORE US BY THE LD. DR HAVE BEEN DEALT WITH BY THE HON'BLE HIGH COURT AND IT WAS HELD THAT FRAMING OF THE ASSESSMENT ORDER UPON A NO N-EXISTING PERSON WAS A JURISDICTIONAL DEFECT AND NOT MERELY A CURABLE PROCEDURAL DEFECT, AND THUS NULLITY IN THE EYES OF LAW. 4.11. IN VIEW OF ALL THESE FACTS AS HAVE BROUGHT BE FORE US AND THE JUDGMENTS BROUGHT BEFORE US AND IN THE ABSENCE OF ANY CONTRARY JUDGMENT HAVING BEEN BROUGHT BEFORE US, WE FIND THAT IMPUGNED ASSESSMENT ORDER IS NULLITY IN THE EYES OF LAW AND THE SAME IS HERBY QUASHED, AND THUS ADDITIONAL GROU NDS RAISED BY THE ASSESSEE ARE ALLOWED. SINCE WE HAVE A LLOWED THE APPEAL OF THE ASSESSEE ON THE ADDITIONAL GROUND S, WE DO NOT FIND IT NECESSARY TO GO INTO GROUNDS RAISED ON MERITS AND THEREFORE, THESE ARE TREATED AS INFRUCTUOUS.' 9.8. IT IS ALSO NOTED THAT HON'BLE CALCUTTA HIGH COURT IN THE CASE OF I.K. AGENCIES PVT LTD, SUPRA AS WELL AS HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS INTEL TECHNOLOGY PVT LTD 380 ITR 272 (KARNAT KA) ALSO FOLLOWED THE VIEW TAKEN BY HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD 247 CTR 500 (DELHI) AND HELD THAT FRAMING OF ASSESSMENT AGAINST NON-EXI STING ENTITY/PERSON WOULD GO TO ROOT OF MATTER AND WAS NO T MERE PROCEDURAL IRREGULARITY, BUT A JURISDICTIONAL DEFECT AND THERE COULD NOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. THUS, APPARENTLY, ASSESSMENT PROCEEDINGS HAVING BEEN 26 ITA NO. 688 /MUM12016 INITIATED AGAINST NON-EXISTING COMPANY EVEN AFTER A MALGAMATION OF ASSESSEE COMPANY WITH ANOTHER COMPANY WERE ILLEGAL, AND THUS ORDER PASSED UNDER SUCH PROCEEDINGS WITHOUT JURISDICTION AND NULL & VO ID. 9.9. DURING THE COURSE OF HEARING, NO CONTRARY JUDGEMENT WAS BROUGHT TO OUR NOTICE BY THE LD. CIT-DR. IT WAS FAIRLY STATED THAT AS ON DATE THIS ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE IN VIEW OF TH E JUDGMENTS AS DISCUSSED ABOVE. IN THESE FACTS AND CIRCUMSTANCES A ND THE CLEAR POSITION OF LAW COMING OUT FROM ABOVE DISCUSSED JUDGMENTS OF HON'BLE BOMBAY HIGH COURT, DELHI HIGH COURT, CALCUTTA HIGH COURT A ND KARNATKA HIGH COURT, WE FIND THAT THE IMPUGNED ASSESSMENT ORDER HAVING B EEN PASSED IN THE HANDS OF WLPL I.E. A NON EST ENTITY AT THE TIME OF PASSING THE SAID ASSESSMENT ORDER WAS NULL & VOID IN THE EYES OF LAW . 10. IF THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143 (3) WAS ILLEGAL OR NULLITY IN THE EYES OF LAW, THEN, WHETHER THE CIT HAD A VALID JURISDICT ION TO PASS THE IM P U G NED ORDER U/S 263 TO REVISE THE NON EST ASSESSMENT ORDER: HAVING DECIDED THE AFORESAID TWO ISSUES, THE NEXT ISSUE TH AT IS TO BE DECIDED BY US IS ABOUT THE VALIDITY OF ORDER PASSED U/S 263 BY TH E LD. CIT SEEKING TO REVISE THE ASSESSMENT ORDER WHICH WAS NULLITY IN THE EYES OF LAW. 10.1. WE HAVE DISCUSSED IN DETAIL IN EARLIER PART OF OUR ORDER THAT AN INVALID ORDER CANNOT GIVE BIRTH TO LEGALLY VALID PR OCEEDINGS. IT IS FURTHER NOTICED BY US THAT SOME OF THE JUDGMENTS RELIED UPO N BY THE LD. COUNSEL HAVE ALREADY ADDRESSED THIS ISSUE. THIS ISSUE HAS A LSO BEEN DECIDED BY THE CO-ORDINATE BENCH (DELHI BENCH OF TRIBUNAL) IN THE CASE OF KRISHNA KUMAR SARAF VS CIT (SUPRA). THE RELEVANT PART OF THE ORDER IS REPRODUCED BELOW: 27 ITA NO. 688 /MUM12016 '17. THERE IS NO QUARREL WITH THE PROPOSITION ADVAN CED BY ID. DR THAT THE PROCEEDINGS U/S 263 ARE FOR THE BENEFIT OF REVENUE AND NOT FOR ASSESSEE. 18. HOWEVER, U/S 263 THE ID. COMMISSIONER CANNOT RE VISE A NON EST ORDER IN THE EYE OF LAW. SINCE THE ASSESSMENT ORDER WAS PASSED IN PURSUANCE TO THE NOTICE U/S 143(2), WHICH WAS BEYON D TIME, THEREFORE, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE BARRED NOTICE HAD NO LEGS TO STAND AS THE SOME WAS NON EST IN THE EYES OF LAW. ALL PROCEEDINGS SUBSEQUENT TO THE SAID NOTICE ARE OF NO CONSEQUENCE. FURTHER, THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. GITSONS ENGINEERING CO. 370 ITR 87 (MAD) CL EARLY HOLDS THAT THE OBJECTION IN RELATION TO NON SERVICE OF NOTICE COULD BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AS TH E SOME WAS LEGAL, WHICH WENT TO THE ROOT OF THE MATTER. 19. WHILE EXERCISING POWERS U/S 263 ID. COMMISSIONE R CANNOT REVISE AN ASSESSMENT ORDER WHICH IS NON EST IN THE EYE OF LAW BECAUSE IT WOULD PREJUDICE THE RIGHT OF ASSESSEE WHICH HAS ACC RUED IN FAVOUR OF ASSESSEE ON ACCOUNT OF ITS INCOME BEING DETERMINED. IF ID. COMMISSIONER REVISES SUCH AN ASSESSMENT ORDER, THEN IT WOULD IMPLY EXTENDING/ GRANTING FRESH LIMITATION FOR PASSING FR ESH ASSESSMENT ORDER. IT IS SETTLED LAW THAT BY THE ACTION OF THE AUTHORITIES THE LIMITATION CANNOT BE EXTENDED, BECAUSE THE PROVISIO NS OF LIMITATION ARE PROVIDED IN THE SAME. 20. IN VIEW OF ABOVE DISCUSSION, GROUND NO.3 IS ALLOWED AND REVISI ON ORDER PASSED U/S 263 IS QUASHED.' 10.2. IT IS FURTHER NOTICED BY US THAT SIMILAR VIEW HAS B EEN TAKEN BY CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF STEEL STRIPS LTD (SUPRA). 11. THUS, AFTER TAKING INTO ACCOUNT ALL THE FACTS AND C IRCUMSTANCES OF THE CASE, WE FIND THAT IN THIS CASE, THE ORIGINAL ASSES SMENT ORDER PASSED U/S 143(3) DT 24-10-2013 WAS NULL & VOID IN THE EYES OF LAW AS THE SAME WAS PASSED UPON A NON-EXISTING ENTITY AND, THEREFORE, THE LD. CIT C OULD NOT HAVE ASSUMED JURISDICTION UNDER THE LAW TO MAKE REVISION OF A NON EST ORDER AND, THEREFORE, THE IMPUGNED ORDER PASSED U/S 263 BY THE LD.CIT IS ALSO NULLITY IN THE EYES OF LAW AND THEREFORE THE SAME IS HEREBY QUASHED. 28 ITA NO. 688 /MUM12016 12. SINCE WE HAVE QUASHED THE IMPUGNED ORDER PASSED U/S 263 BY LD. CIT ON JURISDICTIONAL GROUND, WE DO NOT FIND IT NECESSARY TO DEAL WITH, AT THIS STAGE, OTHER LEGAL ASPECTS AND ISSUES RAISED ON MERITS OF THE IMPUGNED ORDER. 13. WE FURTHER CLARIFY, AT THE COST OF REPETITION, THAT OUR ORDER SHALL HAVE NO BEARING ON THE TAX LIABILITY DETERMINED BY THE ORIG INAL ASSESSMENT ORDER DT. 24- 10-2013, IF ANY. 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON THIS 24 TH DAY OF JUNE, 2016. SD/- SD/- (AMITSHUKLA) (ASH WANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 24 TH JUNE, 2016 P K/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , G-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES DETAILS DATE INITI DESIGNATION A IS 1 DRAFT DICTATED ON 10-6- SR PS/ PS 16 2 DRAFT PLACED BEFORE AUTHOR 15-6- SR PS/PS 16