Itxa-1168-17.Doc v. The Deputy Commissioner Of Income Tax Circle 6(1)(1) & Anr.1

Digitallysigned byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2021.10.0117:15:56+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO. 1168 OF 2017 Pr. Commissioner of Income Tax-5 ….Appellant V/s.M/s Westlilfe Development Ltd. …Respondent ---- Mr. N. C. Mohanty for AppellantMr. Percy Pardiwalla, Senior Advocate i/b Ms Aasifa Khan for Respondent ---- CORAM : K.R. SHRIRAM &R. I. CHAGLA, JJ DATED : 28[th] SEPTEMBER 2021 P.C. : 1The Income Tax Appellate Tribunal (ITAT) had allowed the appealfiled by respondent against the order passed by Principal Commissioner ofIncome Tax (CIT) under Section 263 of the Income Tax Act, 1961 (the saidAct). 2In a nutshell, the Assessing Officer had passed an order of assessmentorder, admittedly, against non existing entity. Against that order, CITexercising his powers under Section 263 of the Act set aside the order of theAssessing Officer and remanded the matter back for a denovo consideration.The Assessing Officer had also not considered certain points regardingvaluation of shares and payments for those shares. The assessee-respondentpreferred an appeal before the ITAT against the order of remand of CIT andthe ITAT had passed an order setting aside the order of CIT on the groundsthat any order against non existent entity is bad in law. The ITAT held thatframing of assessment against non existing entity would go to root of matter and was not mere procedural irregularity, but a jurisdictional defect.ITAT held that assessment proceedings having been initiated against the nonexisting company even after amalgamation of assessee company withanother company were illegal, and thus order passed under suchproceedings was without jurisdiction and null and void. 3Aggrieved by this order of ITAT this appeal has been preferred. Wetotally agree with the view expressed by ITAT that framing of assessmentagainst non existing entity would go to the root of matter and was ajurisdictional defect. The assessment proceedings against non existingcompany was illegal and any order passed therein was without jurisdictionand null and void as held by this court in the matter of Alok Knit ExportsLtd. Vs. The Deputy Commissioner of Income Tax Circle 6(1)(1) & Anr.1 4In our view, the ITAT has not committed any perversity or appliedincorrect principles to the given facts and when the facts and circumstancesare properly analysed and correct test is applied to decide the issue at hand,then, we do not think that question as pressed raises any substantialquestion of law. 5The appeal is devoid of merits and it is dismissed with no order as tocosts. costs. (R. I. CHAGLA J) (K.R. SHRIRAM, J.) 1 2021 SCC Online Bom 1851