IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE : JUDICIAL MEMBER ITA no. 1794/Del/2013 U/s 2002-03 Focus Portfolio (P) Ltd., Vs. Income-tax Officer, C/o Sh. Sushil Verma, Director Ward 11(3), New Delhi. 2386/179, Tri Nagar, Delhi. PAN: AAACF 0978 K (Appellant) ( Respondent) Appellant by : Shri Ved Prakash Bansal CA Respondent : Shri Anil Kumar Saroha Sr. DR Date of hearing : 14/09/2016. Date of order : 19/09/2016. ORDER PER S.V. MEHROTRA, A.M: This is assessees appeal against order dated 22.01.2013 passed by ld. CIT(Appeals)-XIII, New Delhi in appeal no. 31/10-11 relating to AY 2002-03. 2. Brief facts of case are that assessee filed its return declaring income of Rs. 41,020/-. Processing u/s 143(1) was completed. Later on, AO received information from DIT(Inv.) that assessee company as involved in bogus accommodation entries and during assessment eyar 2002-03 assessee had taken entries amounting to Rs. 5,55,120/- from M/s Transpan Financial Services Ltd. After obtaining approval from Competent Authority, notice u/s 2 148 was issued on 30.3.2009. AO has mentioned in assessment order that various notices u/s 142(1) were issued but there was no compliance and finally assessment was completed on as total income of Rs. 5,96,140/-. 3. Ld. CIT(A) confirmed action of AO. Being aggrieved, assessee is in appeal before ITAT and has taken following grounds of appeal: 1. That on facts and circumstances of case and in law, CIT (A) has erred in upholding validity of order dated 17.12.2009 passed u/s 144 read with section 147 of 1. T. Act, 1961, without appreciating that order of assessing officer was beyond jurisdiction, bad in law and void-ab-initio, 2. That on facts and circumstances of case and in law, CIT (A) has erred in affirming validity of assessment order without appreciating: a) That assessment has been completed without issuance and service of valid notice u/s 148 of IT Act, 1961. b) That assessment has been completed in name of non-existent Company. 3. That learned CIT (A) has erred in affirming validity of assessment order without appreciating fact that notice issued u/s 148 is invalid, illegal, void-ab-initio, since conditions precedent for asswning jurisdiction u/s 147 has not been satisfied on ground that: a) proceedings have been initiated after lapse of four years and there is not even allegation that appellant Company has not disclosed full and true all material facts necessary for assessment. b) AO has failed in its duties, having recorded satisfaction that income chargeable to tax has escaped assessment and such escapement has occurred by reason of failure on part of appellant to disclose fully and truly all material facts necessary for assessment. 3 c) reopening of assessment by AO is based on irrelevant material/evidence. d) There was no reason to believe for any escapement of Income of Rs.5,55,1201- 4. That learned CIT (A) has erred in affirming addition of Rs.5,55 .120/- made by AO on account of alleged accommodation entry received from M/s Transpan Financial Services Limited u/s '68 of I. T. Act, 1961. 5. That learned CIT (A) has erred in affirming that sufficient opportunities were given to appellant before passing reassessment order by AO. 6. That appellant, craves, leave to add/alter/delete/amend any ground(s) of appeal before or at time of hearing. 4. At outset ld. counsel submitted that order passed by AO is without jurisdiction. In this regard he referred to page 32 of PB wherein Notification no. SES/560(5)/55/TS060/291/2155 dated 5.10.04 of Registrar of Companies is contained, where it is notified that pursuant to sub-section (5) of section 560 of Companies Act, 1956, name of company Focus Portfolio Private Limited has been struck off from Register and said company was dissolved. Ld. counsel referred to page 23 of that PB, wherein notice issued by AO u/s 148 dated 30.3.2009 is contained and pointed out that this notice has been issued on defunct company and, therefore, assessment order is void ab initio. In support of his contention, ld. counsel relied on decision of Hon ble Delhi High Court in case of Spice Infotainment Ltd. Vs. CIT (ITA nos. 475 & 476 of 2011 order dated 3.8.2011). 5. We have considered submissions of both parties and perused material available on record. facts are not disputed. Admittedly 4 notice u/s 148 has been issued after name of company was struck off from register of Registrar of Companies. We find that Hon ble Delhi High Court in case of Spice Infotainment Ltd. (supra) in para 3 & 4 of its order has observed as under: 3. In this backdrop, question that arises for consideration is as to whether assessment in name of company which had been amalgamated and had been dissolved with said amalgamating company will be null and void or whether framing of assessment in name of such company is mere procedural defect which can be cured. appeals were, thus, finally admitted and heard on following questions of law: "(i) Whether on facts and in circumstances of case, Tribunal erred in law in holding that action of AO in framing assessment in name of 'Spice Corp. Ltd.', after said entity stood dissolved consequent upon its amalgamation with MCorp (P) Ltd. w.e.f 1st July, 2003, was mere procedural defect? (ii) Whether on facts and in circumstances of case, Tribunal erred in law in holding that in view of provisions of s. 292B of Act assessment, having in substance and effect, been framed on amalgamated company which could not be regarded as null and void ?" 4. rationale given by Tribunal, giving it to be mere procedural defect is summed up as under: (i) Spice Corporation Ltd. (the amalgamating company) was income-tax assessee in status of company incorporated under provisions of Companies Act, 1956. (ii) amalgamating company was in existence during relevant asst. yrs. 2002-03 and 200304. (iii) The-returns of income for these assessment years were filed on 30th Nov., 2002 and on 30th Oct., 2003 respectively by M/s Spice. (iv) scheme of amalgamating was sanctioned much subsequently on 11th Feb., 2004 by High Court. (v) return filed by M/s Spice was selected for scrutiny and notices were issued. Pursuant thereto, amalgamated company i.e. appellant appeared and participated in proceedings. Even assessment order were challenged by appellant/amalgamated company. Thus, appellant accepted 5 that assessment proceedings in respect of assessment of Spice for period prior to its amalgamation are being taken up against appellant and it is appellant which felt aggrieved of assessment order and preferred appeal. order was thus in substance and in effect, against appellant/amalgamated com any'- mere omission on part of AO to mention name of appellant/amalgamated company' in place of M/s Spice was, therefore procedural defect covered by provisions of s. 292B of Act . 6. Respectfully following decision of Hon ble Delhi High Court in case of Spice Infotainment Ltd. (supra), assessment order is held to be bad in law and, accordingly, quashed. 7. In result, assessee s appeal is allowed. Order pronouncement in open court on 19/09/2016. Sd/- Sd/- (SUCHITRA KAMBLE) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 19/09/2016. MP Copy of order to: 1. Assessee 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, New Delhi. Focus Portfolio (P) Ltd. v. Income-tax Officer, Ward-11(3), New Delhi