Orders placed in the name of nonexistent entities may be revoked

Fact and issue of he case

This appeal by the assessee is directed towards the order of the PCIT-2, New Delhi, dated 29.03.2019 framed u/s 263 of the Income-tax Act, 1961 [hereinafter referred to as ‘The Act’] pertaining to A.Y. 2014- 15.

The grievances of the assessee read as under:

That the orders of the ld. PCIT u/s 263 directing het Assessing Officer to frame the assessment afresh is illegal, erroneous, perverse and thus uncalled for and therefore ought to be quashed.

That the Appellant disputes the very initiation of the proceedings u/s 263 of the Income Tax Act, 1961 (‘the Act’) by Ld. CIT by setting aside assessment orders passed by the Ld. AO u/s 143(3), despite Pr. CIT having himself admitted in the notice issued u/s 263 that the Appellant had filed loan confirmation, bank statement and return of income of lenders to substantiate their genuineness and creditworthiness during the original assessment proceedings u/s 143(3).

That the Ld. PCIT erred on facts and in law, in invoking the provisions of section 263 of the Act, ignoring that the Ld. AO had already specifically required the Appellant to prove the identity & creditworthiness of the genuineness of impugned unsecured loans Appellant from Anukul Commercial Pvt Ltd (Rs.31,00,00,000) and Dhansamridhi (Rs. 15,16,71,781) by issuing written notices.

The Ld. PCIT erred in not appreciating the fact that the written notices of the Ld. AO were duly replied in writing by the Appellant along with documentary evidences and the Ld. AO alter having examined the said replies and after due application of mind had neither felt the need for further enquiry nor had drawn any adverse inference. Therefore, the Assessment Orders passed by the Ld. AO could not be considered erroneous and thus, was out of purview of revision u/s 263 of the Act as the jurisdiction under section 263 of the Act cannot be assumed by Ld. PCIT for making roving enquiries on the issues that were already enquired into and examined by the Ld. AO and had already reached finality.

The Appellant craves leave to add, alter, amend or forgo any grounds of appeal at the time of hearing.

Vide letter dated 16.09.2019, the assessee further raised the following ground of appeal:

That the learned Pr. CIT has erred in initiating proceedings u/s 263 of Income Tax Act, when the impugned assessment u/s 143(3) was framed in the name of M/s Chemester Food Industry (name of the amalgamating firm) which was non-existing when assessment order was passed. The notices issued u/s 142(1) & 143(2) pursuant to which the Assessing Officer assumed jurisdiction to make an assessment u/s 143(3) was issued in the name of M/s Chemester Food Industry a non-existent firm was invalid, hence initiation of assessment proceeding against the non-existing firm was void ab initio. The appellant disputes the very initiation of the proceedings u/s 263 of the Income Tax Act, 1961 by Ld. Pr. CIT of setting aside assessment order passed.

Representatives of both the sides were heard at length. Case records carefully perused. Judicial decisions relied upon by the rival representatives duly considered.

The additional ground taken by the assessee goes to the root of the matter. Therefore, we will address to it first.

Vide letter dated 01.04.2014, which was received by the Office of the ACIT, Circle -3, Amritsar on 02.04.2014, the assessee brought to the notice the following:

“Date: 01.04 .2014

The Deputy Commissioner of

Income Tax Circle – III, Room

No. 355, Aayakar Bhawan

Maqbool Road, Amritsar –

14300 1, Punjab

Sub : Intimation regarding dissolution of Firm/Change in the Constitution of the Establishment

Dear Sir/Madam,

In reference to the above, We M/s Chemester Food Industry would like to inform you that w.e.f- 01/04/20 14, we had transferred existing business to M/s Chemester Food Industry Pvt ltd by way of takeover procedure as provided in Section 47 (xiii) of the Income Tax Act, 1961 vide takeover cum succession deed on a going concern basis.

Further, all the partners of the Firm will act as the Director in the Company as well and all agreements, deeds, suits pleads etc. in the name of M/s Chemester Food Industry would continue in the name of M/s Chemester Food Industry Private Limited as well.

Accordingly you are hereby requested to take note of the same and make necessary changes/updation in your records.

In this connection, we are enclosing herewith Pan Card, takeover/succession deed, Certificate of Incorporation, MOA & ADA,’ Dissolution Deed-and Dissolution Certificate (Form C), Director’s & Shareholder’s details of Chemester Food Industry Pvt Ltd for your perusal and necessary records.

Thanking you

(Neeraj Agarwal) “

Observation of the court

The Hon’ble Supreme Court in the case of Maruti Suzuki India Ltd 107 Taxmann.com 375 has held that :

“Issuance of jurisdictional notice and assessment order thereafter passed in the name of non-existing company i.e. amalgamating company having ceased to exist as a result of approved scheme of amalgamation is a substantive illegality and not a procedural violation of nature adverted to in section 292B and hence being without jurisdiction was to be set aside.”

The Co-ordinate Bench in the case of Westlife Development Ltd in ITA No. 688/Mum/2016, vide order dated 24.06.2016, under similar facts and circumstances, has held that:

“The proceedings initiated u/s 263 seeking to revise the original assessment order is off shoot of the primary proceedings and therefore, these may be termed as ‘collateral proceedings’ and jurisdictional aspects of the order passed in the primary proceedings can be examined in the collateral proceedings also”

and went on to hold that since the assessment order is held to be nonest, assumption of jurisdiction u/s 263 of the Act is bad in law.

Since the assessment order has been framed in the name of a non-existing entity, the same deserves to be quashed and as the assessment order is non-est, assumption of jurisdiction u/s 263 of the Act by the PCIT is bad in law and, therefore, the order framed by the PCIT u/s 263 of the Act is set aside and the proceedings quashed.

Since we have decided the appeal on the point of law, we do not find it necessary to dwell into the merits of the case.

Before parting, the ld. DR had vehemently stated that all the decisions relied upon by the assessee relates to amalgamation of company whereas the facts of the case in hand are that of succession of partnership firm by a company and, therefore, the case laws are distinguishable on facts.

We do not find any merit in these submissions of the ld. DR as the issue has been addressed to and decided is whether the order framed in the name of a non existing entity can be subject to revision u/s 263 of the Act.

In the result, the appeal filed by the assessee in ITA No. 3707/DEL/2019 is allowed.

The order is pronounced in the open court on 09.06.2023.