M/S. EMTA COAL LTD.,( ERSTWHILE KNOWN AS M/S. EASTERN MINERAL & TRADING AGENCY ) ,KOLKATA vs. ACIT, CENTRAL CIRCLE - 3(1) , KOLAKTA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member & Sri Aby T. Varkey, Hon’ble Judicial Member) ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd…………………………………………..............................…….............Appellant 5B, Nandlal Basu Sarani Kolkata – 700 071 [PAN : AACCE 3506 G]

Vs. Asstt. Commissioner of Income Tax, Central Circle-3(1), Kolkata..................….....…......Respondent Appearances by: Shri S.M. Surana, Adv., appeared on behalf of the assessee. Shri Vijay Shankar/Shri Manish Kanojia, CIT, D/R, appearing on behalf of the Revenue. Date of concluding the hearing : June 23rd, 2021 Date of pronouncing the order : June 29th, 2021 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) - 21, (hereinafter the “Ld. CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 10/09/2018, for the Assessment Year 2010-11.

2.1. The partners, after the firm ceased to exist, filed the return of income of the firm M/s. Eastern Mineral & Trading Agency for the period 1.4.2009 to 18.3.2010 i.e. for assessment year 2010-11. Search u/s 132 of the Act was conducted in the case of the Firm on 15.1.2009.Assessments for AY 2007-08 to 2009-10 were completed by the Assessing Officer u/s 143(3)/153A vide order dated 31.12.2010.For the assessment year 2010-11 assessment was

2 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. completed in the name of the FirmM/s. Eastern Mineral & Trading Agency u/s 143(3) vide completed in the name of the FirmM/s. Eastern Mineral & Trading Agency u/s 143(3) vide completed in the name of the FirmM/s. Eastern Mineral & Trading Agency u/s 143(3) vide order dated 14.12.2012 after the Firm’s closure. order dated 14.12.2012 after the Firm’s closure.

2.2. The Company M/s. Emta Coal Ltd. f The Company M/s. Emta Coal Ltd. filed its return for the assessment year 2010 iled its return for the assessment year 2010-11 for the income from 19.3.2010 to 31.3.2010 on 20.3.2012 and the returned income was accepted the income from 19.3.2010 to 31.3.2010 on 20.3.2012 and the returned income was accepted the income from 19.3.2010 to 31.3.2010 on 20.3.2012 and the returned income was accepted u/s 143(1) of the Act.

2.3. Thereafter, the assessments assessments of the Firm for the assessment year 2008 for the assessment year 2008-09 to 2010-11 were reopened by the AO by issuing notice u/s 148 on 21.3.2014 under the name of e reopened by the AO by issuing notice u/s 148 on 21.3.2014 under the name of e reopened by the AO by issuing notice u/s 148 on 21.3.2014 under the name of "Eastern Mineral and Trading Agency (Succeeded by Emta Coal Ltd.)" Mineral and Trading Agency (Succeeded by Emta Coal Ltd.)". The return of income for all the . The return of income for all the three years were filed. The assessee requested the AO to supply the copy of three years were filed. The assessee requested the AO to supply the copy of three years were filed. The assessee requested the AO to supply the copy of reasons recorded for reopening of the assessment. The Ld. AO supplied the copy of reasons recorded. In the for reopening of the assessment. The Ld. AO supplied the copy of reasons recorded. In the for reopening of the assessment. The Ld. AO supplied the copy of reasons recorded. In the recorded reasons the Ld. AO r recorded reasons the Ld. AO referring to the application for Settlement of the cases to the application for Settlement of the cases filed by M/s Emta Coal Ltd for AY 2011 for AY 2011-12 to 2013-14 and the report filed by the Ld. Pr. CIT in Rule ort filed by the Ld. Pr. CIT in Rule 9 before the Settlement Commission, alleged that he had reason to believe that income 9 before the Settlement Commission, alleged that he had reason to believe that income 9 before the Settlement Commission, alleged that he had reason to believe that income chargeable to tax for these years had escaped assessment chargeable to tax for these years had escaped assessment. The AO thereafter thereafter issued notices u/s 142(1)/143(2) of the Act on 23.7.2014 142(1)/143(2) of the Act on 23.7.2014 and 9.10.2014.On receipt of the reasons so recorded, and 9.10.2014.On receipt of the reasons so recorded, objections were filed by the assessee objections were filed by the assessee challenging the validity of the reopenin challenging the validity of the reopening, notice and the reasons recorded u/s 147 of the Act for al u/s 147 of the Act for all the three years on 18.11.2014 l the three years on 18.11.2014. It was inter alia contended that, the original assessment was completed u/s 143(3) and that full enquiry was the original assessment was completed u/s 143(3) and that full enquiry was the original assessment was completed u/s 143(3) and that full enquiry was made in the original assessment, made in the original assessment, and therefore, the assessments were being reopened on therefore, the assessments were being reopened on ‘change of opinion’. The AO was therefore requested to drop the proceedings for all the thre . The AO was therefore requested to drop the proceedings for all the thre . The AO was therefore requested to drop the proceedings for all the three years by the assessee. A reminder years by the assessee. A reminder letter dated 11.3.2015 was again filed requesting the AO to filed requesting the AO to dispose of the objection and drop the proceedings. dispose of the objection and drop the proceedings. Since no response was received from the Since no response was received from the AO, writ petitions were filed before Hon'ble Calcutta High Court for , writ petitions were filed before Hon'ble Calcutta High Court for all the three years all the three years in WP No. 343/3441 and 345/WP/2015, disput No. 343/3441 and 345/WP/2015, disputing the validity of the notices issued ing the validity of the notices issued u/s 148 of the Act. The Hon’ble High Court granted stay from 25th March 2015 till 30th July Court granted stay from 25th March 2015 till 30th July Court granted stay from 25th March 2015 till 30th July 2015 and thereafter, till the WP is finally disposed of. The WP was finally dismissed for default on 10.6.2016 and till the WP is finally disposed of. The WP was finally dismissed for default on 10.6.2016 and till the WP is finally disposed of. The WP was finally dismissed for default on 10.6.2016 and all orders stood vacated. Thereafter, neither the assessee proceeded further nor Thereafter, neither the assessee proceeded further nor Thereafter, neither the assessee proceeded further nor was anything heard from the AO. Hence, the Hence, the proceedings initiated by way of issue of notice notices u/s. 148 of the Act dated 21.03.2014 for the AY 2008 for the AY 2008-09, 2009-10 and 2010-11 on 21.03.2014 remained 11 on 21.03.2014 remained open and/or got time barred as no action was taken on them by the AO. time barred as no action was taken on them by the AO.

3 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. 2.4. Subsequently, the AO again issued a second notice u/s 148 of the A of the Act dated 30.3.2017 for the AY 2010-11 in the name of 11 in the name of ‘Eastern Mineral and Trading Agency Eastern Mineral and Trading Agency’ under PAN no. of the erstwhile Firm i.e. AAAFE7051M AAAFE7051M. It was stated that the notice was sent on the mail id. . It was stated that the notice was sent on the mail id. The AO further claimed that, , he had sent the notice to the company, M/s Emta Coal Ltd , M/s Emta Coal Ltd by speed post on 3.4.2017. Subsequently the AO also handed over copy of the said notice u/s 148 speed post on 3.4.2017. Subsequently the AO also handed over copy of the said notice u/s 148 speed post on 3.4.2017. Subsequently the AO also handed over copy of the said notice u/s 148 to Shri Avijit Sarkar, Senior Manager (F & A) of the Company on 24.4.2017. to Shri Avijit Sarkar, Senior Manager (F & A) of the Company on 24.4.2017. to Shri Avijit Sarkar, Senior Manager (F & A) of the Company on 24.4.2017. It was thus pointed out by the ld. AR of the assessee th pointed out by the ld. AR of the assessee that, the notice issued in the name of the he notice issued in the name of the non-existent Firm, M/s. Eastern Mineral & Trading Agency M/s. Eastern Mineral & Trading Agency u/s. 148 of the Act dated 30.03.2017 wa u/s. 148 of the Act dated 30.03.2017 was served on an employee of the Company ompany, M/s. Emta Coal Ltd. on 24.04.2017.

2.5. The AO sent a letter dated 5.12.2017 stating that notice/s 148 was in fact issued to the The AO sent a letter dated 5.12.2017 stating that notice/s 148 was in fact issued to the The AO sent a letter dated 5.12.2017 stating that notice/s 148 was in fact issued to the company under their PAN and that the reasons were also recorded for reopening of the PAN and that the reasons were also recorded for reopening of the PAN and that the reasons were also recorded for reopening of the assessment of the company. The AO states that assessment of the company. The AO states that although the notice was inadvertentl notice was inadvertently generated in the name and address under the PAN data base of M/s. Eastern M in the name and address under the PAN data base of M/s. Eastern M in the name and address under the PAN data base of M/s. Eastern Mineral and Trading Agency, the Firm with the PAN No. of the F with the PAN No. of the Firm, but it was issued and served on the company rved on the company but this error committed in the notice u/s 148 of the Act this error committed in the notice u/s 148 of the Act was curable u/s 292B of the Act. u/s 292B of the Act. Referring to the reasons recorded the reasons recorded by him as well as the memo forwarded as well as the memo forwarded to office of Pr. CIT for approval, the AO claimed , the AO claimed that the assessment has been reopened in the name o the assessment has been reopened in the name of company, as successor to the Firm. It is noted that t It is noted that the reasons recorded for reopening the assessment are ons recorded for reopening the assessment are identical to the reasons which were which were recorded for reopening the assessment in first round on recorded for reopening the assessment in first round on 21.3.2014. Thereafter, the AO continued the second assessment proceedings u/s 148 against the he AO continued the second assessment proceedings u/s 148 against the he AO continued the second assessment proceedings u/s 148 against the company. The company however did not agree with the clarification given by the AO. It wever did not agree with the clarification given by the AO. It wever did not agree with the clarification given by the AO. It challenged the AO’s action of continuing the proceedings u/s 148 of the Act against the challenged the AO’s action of continuing the proceedings u/s 148 of the Act against the challenged the AO’s action of continuing the proceedings u/s 148 of the Act against the Company for the reason that Company for the reason that the AO never re-opened the case of the company but opened the case of the company but had issued the notice u/s 148 of the Act bearing bearing the name and PAN of the Firm, M/s. Eastern Mineral and M/s. Eastern Mineral and Trading Agency, which was served on them on 24/04/2017.The company contended that this , which was served on them on 24/04/2017.The company contended that this , which was served on them on 24/04/2017.The company contended that this was a jurisdictional defect which is not curable u/s 292B of the Act since it was issued in a jurisdictional defect which is not curable u/s 292B of the Act since it was issued in a jurisdictional defect which is not curable u/s 292B of the Act since it was issued in the name of non-existent person. The AO person. The AO rejected the objections of the assessee and held that it of the assessee and held that it was only a procedural defect, which was curable u/s 292B of the Act.

2.6. Thereafter, the AO completed the assessment u/s 144 of the Act for non he AO completed the assessment u/s 144 of the Act for non he AO completed the assessment u/s 144 of the Act for non-compliance by the company vide assessment order dated 29.12.2017. The the company vide assessment order dated 29.12.2017. The order u/s 144/147 of the Act was order u/s 144/147 of the Act was passed in the name of the company, under the PAN No. of the company by making addition on the company, under the PAN No. of the company by making addition on the company, under the PAN No. of the company by making addition on

4 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. account of alleged bogus payment of operational charges to the four parties. nt of alleged bogus payment of operational charges to the four parties. nt of alleged bogus payment of operational charges to the four parties. The notice of demand u/s 156 of the Act was also demand u/s 156 of the Act was also raised in the name of company.

2.7. Aggrieved by the action of the AO, t Aggrieved by the action of the AO, the assessee preferred an preferred an appeal against the assessment order passed on 29.12.2017 before the assed on 29.12.2017 before the Ld. CIT(A). On appeal, the ld. CIT(A) . On appeal, the ld. CIT(A) concurred with the contention of the AO that notice was meant for, issued concurred with the contention of the AO that notice was meant for, issued concurred with the contention of the AO that notice was meant for, issued and served on the company but the mention of the name the name & PAN of the Firm in the impugned notice u/s 148 of in the impugned notice u/s 148 of the Act was a mistake curable u/s 292B was a mistake curable u/s 292B of the Act. He thus rejected the contentions rejected the contentions raised by the assessee on the validity of the proceeding's u/s 147 of the Act. The CIT(A) also observed the assessee on the validity of the proceeding's u/s 147 of the Act. The CIT(A) also observed the assessee on the validity of the proceeding's u/s 147 of the Act. The CIT(A) also observed that the appellant has not produced any that the appellant has not produced any evidence which showed that the Dep evidence which showed that the Department was aware about the merger of the Firm with the Company about the merger of the Firm with the Company. The Ld. CIT(A) thus rejected the submissions rejected the submissions of the assessee both on the legal legal validity of the proceedings and also the merits merits of the addition, and confirmed the order of the and confirmed the order of the AO.

4.1. The elaborate submissions made by elaborate submissions made by Ld. Counsel contending that contending that the reopening of assessment was bad in law, can be summarized below can be summarized below:

a) Notice which was served on the company but issued in the name of the non Notice which was served on the company but issued in the name of the non Notice which was served on the company but issued in the name of the non-existent firm was bad in law - The ld. Counsel for the assessee pointed out that, the notice u/s he assessee pointed out that, the notice u/s 148 of the Act was issued in the name of a non 148 of the Act was issued in the name of a non-existent entity i.e. firm, existent entity i.e. firm, M/s. Eastern Mineral and Trading Agency Mineral and Trading Agency on 30/03/2017. Even the PAN mentioned therein was that on 30/03/2017. Even the PAN mentioned therein was that

5 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. of the erstwhile Firm. The notice nowhere of the erstwhile Firm. The notice nowhere mentioned the name of the assessee mentioned the name of the assessee company.

b) He refuted the finding of the AO refuted the finding of the AO that, the notice was meant to be issued to the company issued to the company but the notice generated notice generated bearing the name of the firm with the firm’s PAN No. bearing the name of the firm with the firm’s PAN No. was a clerical mistake and thus thus curable u/s. 292B is bad in law. According to him, this was a According to him, this was a jurisdictional defect and hence, Section 292B cannot come to the rescue of the Firm. jurisdictional defect and hence, Section 292B cannot come to the rescue of the Firm. jurisdictional defect and hence, Section 292B cannot come to the rescue of the Firm.

c) As regards the finding of the ld. CIT(A) that the Revenue was not aware about the fact As regards the finding of the ld. CIT(A) that the Revenue was not aware about the fact As regards the finding of the ld. CIT(A) that the Revenue was not aware about the fact that the business of the Firm had that the business of the Firm had been taken over the Company, the ld. Counsel invited been taken over the Company, the ld. Counsel invited our attention to the notices issued u/s 148 of the Act dated 21/03/2014 in the name of our attention to the notices issued u/s 148 of the Act dated 21/03/2014 in the name of our attention to the notices issued u/s 148 of the Act dated 21/03/2014 in the name of "Eastern Mineral and Trading Agency (Succeeded by Emta Coal Ltd.)" "Eastern Mineral and Trading Agency (Succeeded by Emta Coal Ltd.)" "Eastern Mineral and Trading Agency (Succeeded by Emta Coal Ltd.)" and the reasons recorded pursuant thereto, which recorded pursuant thereto, which clearly showed that the Revenue was aware that the clearly showed that the Revenue was aware that the Firm had been dissolved on 18/03/2010. Firm had been dissolved on 18/03/2010.

d) He thus contended that the notice issued u/s 148 being bad in law, the entire He thus contended that the notice issued u/s 148 being bad in law, the entire He thus contended that the notice issued u/s 148 being bad in law, the entire proceedings as well as the order passed u/s 144/147 be declared ab proceedings as well as the order passed u/s 144/147 be declared ab proceedings as well as the order passed u/s 144/147 be declared ab initio void. For this proposition, he relied on the following case laws: he relied on the following case laws:

i) CIT Vs. Norton Motors (2005) 275 ITR 595 (P&H); CIT Vs. Norton Motors (2005) 275 ITR 595 (P&H); ii) P. N. Shashi Kumar & Ors. Vs. CIT (1988) 170 ITR 80 P. N. Shashi Kumar & Ors. Vs. CIT (1988) 170 ITR 80 iii) Pr. CIT Vs. Maruti Suzuki India Ltd., Civil Appeal No.5409 of 2019 Pr. CIT Vs. Maruti Suzuki India Ltd., Civil Appeal No.5409 of 2019 Pr. CIT Vs. Maruti Suzuki India Ltd., Civil Appeal No.5409 of 2019 iv) Rajbir Singh 238 ITR 126 (P&H) 38 ITR 126 (P&H) v) CIT Vs. Jagat Novel Exhibitors P. Ltd., ITA Nos. 7, 2 CIT Vs. Jagat Novel Exhibitors P. Ltd., ITA Nos. 7, 2-5, 8, 10,11, 17 & 22/2006 5, 8, 10,11, 17 & 22/2006

e) The ld. counsel further pointed out that, the AO was under the misconception that the The ld. counsel further pointed out that, the AO was under the misconception that the The ld. counsel further pointed out that, the AO was under the misconception that the company was to be assessed as the successor of the firm. According to h company was to be assessed as the successor of the firm. According to h company was to be assessed as the successor of the firm. According to him, the firm did not merge/amalgamate with the company. It was a case where the business was taken not merge/amalgamate with the company. It was a case where the business was taken not merge/amalgamate with the company. It was a case where the business was taken with effect 18/03/2010 and thereafter the firm stood dissolved. However, with effect 18/03/2010 and thereafter the firm stood dissolved. However, with effect 18/03/2010 and thereafter the firm stood dissolved. However, company could not have been assessed as a successor of the firm. could not have been assessed as a successor of the firm. For this, he referr For this, he referred to provisions of Section 189 of the Act. He thus contended that the impugned order was provisions of Section 189 of the Act. He thus contended that the impugned order was provisions of Section 189 of the Act. He thus contended that the impugned order was bad in law. For this proposition he relied on the following judgments: For this proposition he relied on the following judgments: For this proposition he relied on the following judgments:

6 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd.

i. Motor Sales Vs. CIT 230 ITR 44 (All) Motor Sales Vs. CIT 230 ITR 44 (All) ii. Mangatram Hazarimal Kuthiala 125 ITR 91 Mangatram Hazarimal Kuthiala 125 ITR 91 iii. City Mill Distributors P Ltd. 291 ITR 1 (SC) Distributors P Ltd. 291 ITR 1 (SC)

f) The ld. counsel alternatively submitted t The ld. counsel alternatively submitted that, the reopening is bad in law for the reason the reopening is bad in law for the reason that the original assessment was completed u/s 143(3) of the Act and the reopening u/s that the original assessment was completed u/s 143(3) of the Act and the reopening u/s that the original assessment was completed u/s 143(3) of the Act and the reopening u/s 147 of the Act being initiated being initiated beyond a period of four years from the end of the AY from the end of the AY 2010-11, the AO was required to first comply with the condition precedent in 11, the AO was required to first comply with the condition precedent in 11, the AO was required to first comply with the condition precedent in first proviso to Section 147 of the Act proviso to Section 147 of the Act to validly reopen the assessment. to validly reopen the assessment. He pointed out that there was not even a whisper in the recorded there was not even a whisper in the recorded reasons that there was there was failure on part of the assessee to fully and truly disclose all the material facts required for assessment the assessee to fully and truly disclose all the material facts required for assessment the assessee to fully and truly disclose all the material facts required for assessment and for that reason the act of and for that reason the act of reopening the assessment u/s 148 is bad in law reopening the assessment u/s 148 is bad in law. For this proposition, he relied on the followin proposition, he relied on the following case-law:-

i) Oracle System Corporation (Delhi) WP 1873/2013 Oracle System Corporation (Delhi) WP 1873/2013 ii) Johnson & Johnson P. ltd., ITA No. 4912/Mum/2013 dated 10.08.2020 Johnson & Johnson P. ltd., ITA No. 4912/Mum/2013 dated 10.08.2020 Johnson & Johnson P. ltd., ITA No. 4912/Mum/2013 dated 10.08.2020 iii) M/s. Cygnus Investments & Finance Pvt. ltd. ITA No. 117/Kol/2018 M/s. Cygnus Investments & Finance Pvt. ltd. ITA No. 117/Kol/2018 M/s. Cygnus Investments & Finance Pvt. ltd. ITA No. 117/Kol/2018 iv) Rural Electrification SLP No.1835C/2014 decided on 28.08.2017 Rural Electrification SLP No.1835C/2014 decided on 28.08.2017 Rural Electrification SLP No.1835C/2014 decided on 28.08.2017 v) Sound Casting P. ltd. Vs. DCIT 250 CTR 119 (Bom.) Sound Casting P. ltd. Vs. DCIT 250 CTR 119 (Bom.) vi) CIT Vs. Orient Craft ltd. (2013) 354 ITR 356 (Del.) CIT Vs. Orient Craft ltd. (2013) 354 ITR 356 (Del.) vii) CIT Vs. Vishishth Chay Vyapark ltd. ITA No. 1108 CIT Vs. Vishishth Chay Vyapark ltd. ITA No. 1108-1109/2010 dated 03.12.2015 1109/2010 dated 03.12.2015 viii) CIT Vs. Pradeshiya Industrial & Investment Corpn. Of UP Ltd. 332 ITR 0324 CIT Vs. Pradeshiya Industrial & Investment Corpn. Of UP Ltd. 332 ITR 0324 CIT Vs. Pradeshiya Industrial & Investment Corpn. Of UP Ltd. 332 ITR 0324

g) The ld. counsel for the assessee further argued that, w e ld. counsel for the assessee further argued that, when the assessment has been hen the assessment has been first reopened on 21/03/2014on identical reasons on 21/03/2014on identical reasons and such reopened assessment and such reopened assessment was neither completed nor closed, the or closed, the AO’s action of initiating second reopening of the same second reopening of the same assessment year for the same reasons was for the same reasons was bad in law. He pointed out that pointed out that that the original assessment of the assessee was completed u/s 143(3) of the Act on 14/12/2012. original assessment of the assessee was completed u/s 143(3) of the Act on 14/12/2012. original assessment of the assessee was completed u/s 143(3) of the Act on 14/12/2012. Thereafter, the first reassessment reafter, the first reassessment proceedings u/s 147 of the Act was initiated on the proceedings u/s 147 of the Act was initiated on the company on 21/03/2014. The any on 21/03/2014. The AO also issued notices u/s 142(1) and 143(2) of the Act u/s 142(1) and 143(2) of the Act on 23/07/2014 and 31/07/2014. The assessee on 23/07/2014 and 31/07/2014. The assessee had filed objections to the reopening vide filed objections to the reopening vide letter dt. 18/01/2014. letter dt. 18/01/2014. According to the ld. counsel of the assesse According to the ld. counsel of the assessee, this reassessment

7 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. proceedings was not terminated and not terminated and remained pending. In the meanwhile, In the meanwhile, another notice u/s 148 of the Act dt. 30/03 ice u/s 148 of the Act dt. 30/03/2017, was issued once again reopening the /2017, was issued once again reopening the assessment u/s. 147 of the Act. assessment u/s. 147 of the Act. The ld. counsel for the assessee contended that such The ld. counsel for the assessee contended that such action of the AO was as bad in law. For this proposition, he relied on the following case For this proposition, he relied on the following case- law:-

 CIT vs. P Krishnan Kutty Menon reported in 181 ITR 237 [Kerala] CIT vs. P Krishnan Kutty Menon reported in 181 ITR 237 [Kerala] CIT vs. P Krishnan Kutty Menon reported in 181 ITR 237 [Kerala]  The Indian Tube Co. Ltd. vs. ITO reported in 272 ITR 439 [Cal.} The Indian Tube Co. Ltd. vs. ITO reported in 272 ITR 439 [Cal.} The Indian Tube Co. Ltd. vs. ITO reported in 272 ITR 439 [Cal.}  CIT vs. S. Raman Chettiar [1965] SCR (1) 883 CIT vs. S. Raman Chettiar [1965] SCR (1) 883  Trustees of H.E.H. The Nizam’s Supplemental Family Trust vs. CIT reported in 242 Trustees of H.E.H. The Nizam’s Supplemental Family Trust vs. CIT reported in 242 Trustees of H.E.H. The Nizam’s Supplemental Family Trust vs. CIT reported in 242 ITR 381 (SC)  CIT vs. Kurban Hussain Ibrahimji Mithiborwala reported in [1971] 82 ITR 821 (SC) CIT vs. Kurban Hussain Ibrahimji Mithiborwala reported in [1971] 82 ITR 821 (SC) CIT vs. Kurban Hussain Ibrahimji Mithiborwala reported in [1971] 82 ITR 821 (SC)  CIT vs. Bibhuti Bhusan Mallick reported in [1987] 165 ITR 107 (Cal.) CIT vs. Bibhuti Bhusan Mallick reported in [1987] 165 ITR 107 (Cal.) CIT vs. Bibhuti Bhusan Mallick reported in [1987] 165 ITR 107 (Cal.)

h) He further argued that proceeding u/s. 147 is bad in law, since no fresh reopening of argued that proceeding u/s. 147 is bad in law, since no fresh reopening of argued that proceeding u/s. 147 is bad in law, since no fresh reopening of assessment proceeding can be initiated on the same reasons on which the assessment assessment proceeding can be initiated on the same reasons on which the assessment assessment proceeding can be initiated on the same reasons on which the assessment was reopened earlier in the first round. was reopened earlier in the first round. For this, he relied on following case law: e relied on following case law:

i. ACIT Vs. Marico Ltd. (SC) rico Ltd. (SC) in WP No. 1917/2019 dated 01.06.2020 01.06.2020 ii. CIT Vs. Central Warehousing Corporation, ITA No. 575/2012 dated 15.01.2015 CIT Vs. Central Warehousing Corporation, ITA No. 575/2012 dated 15.01.2015 CIT Vs. Central Warehousing Corporation, ITA No. 575/2012 dated 15.01.2015

i) The ld. counsel thereafter proceeded to further point out The ld. counsel thereafter proceeded to further point out several discrepancies several discrepancies in the issuance & service of notice viz., (i) issuance & service of notice viz., (i) the notice was sent by e-mail to the non mail to the non-existing address of the firm and thereafter the notice u/s 148 of the Act, was sent by speed post. address of the firm and thereafter the notice u/s 148 of the Act, was sent by speed post. address of the firm and thereafter the notice u/s 148 of the Act, was sent by speed post. He pointed out that the reasons recorded as well as approval was in the name of the He pointed out that the reasons recorded as well as approval was in the name of the He pointed out that the reasons recorded as well as approval was in the name of the company. He submitted that there company. He submitted that there is no whisper anywhere in the notice or in the reasons is no whisper anywhere in the notice or in the reasons recorded, that the Assessing Officer was treating the assessee company as the successor recorded, that the Assessing Officer was treating the assessee company as the successor recorded, that the Assessing Officer was treating the assessee company as the successor of the erstwhile firm, or g of the erstwhile firm, or gave any valid reason for doing so. These facts reveal non These facts reveal non- application of mind by AO w application of mind by AO while issuing notice u/s 148 of the Act.

8 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. 5. The Ld. CIT DR Shri Vijay Shankar submitted that, in the grounds of DR Shri Vijay Shankar submitted that, in the grounds of DR Shri Vijay Shankar submitted that, in the grounds of appeal the assessee has not taken specific grounds relating to the several legal issues raised by the ld. assessee has not taken specific grounds relating to the several legal issues raised by the ld. assessee has not taken specific grounds relating to the several legal issues raised by the ld. counsel challenging the validity of counsel challenging the validity of reopening of assessment as bad in law, reopening of assessment as bad in law, other than challenging the validity of the notice u/s148 of the Act as well as the notice u/s148 of the Act as well as the approval approval of the Ld. PCIT and therefore he contended all other arguments pertaining to the legality or validity of PCIT and therefore he contended all other arguments pertaining to the legality or validity of PCIT and therefore he contended all other arguments pertaining to the legality or validity of the reopening of the assessment raised by the ld. counsel for the assessee ought not be assessment raised by the ld. counsel for the assessee ought not be assessment raised by the ld. counsel for the assessee ought not be adjudicated. The Ld. CIT DR contended that, DR contended that, these other arguments were also raised before these other arguments were also raised before the ld. CIT(A) and according to him therefore, the assessee should not be permitted to the ld. CIT(A) and according to him therefore, the assessee should not be permitted to the ld. CIT(A) and according to him therefore, the assessee should not be permitted to agitate the same without raising specific grounds on the validity of reopening of the same without raising specific grounds on the validity of reopening of the same without raising specific grounds on the validity of reopening of the assessment before the ITAT.

9 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. Income Tax, Range-3 wherein that officer has recorded his 3 wherein that officer has recorded his satisfaction by saying satisfaction by saying ‘Yes I am satisfied that it is a fit case for issue satisfied that it is a fit case for issue of notice u/s 148’. The Ld. CIT DR submitted that the The Ld. CIT DR submitted that the Ld. PCIT has gone through the Ld. PCIT has gone through the reasons recorded and since he was fully satisfied by the action reasons recorded and since he was fully satisfied by the action proposed i.e. reopening the assessment of the assessee for A.Y 2010 the assessment of the assessee for A.Y 2010-11 u/s 147/148 of the 11 u/s 147/148 of the Act, he gave his approval to do so and pproval to do so and therefore the requirement of law has been fully therefore the requirement of law has been fully satisfied. The Ld. CIT DR argued that in this case, it cannot be said that satisfied. The Ld. CIT DR argued that in this case, it cannot be said that satisfied. The Ld. CIT DR argued that in this case, it cannot be said that there was non- application of mind by the Ld. PCIT while giving the approval to application of mind by the Ld. PCIT while giving the approval to reopen the assessment u/s reopen the assessment u/s 147/148 of the Act. Therefore, according to him, this ground of appeal of the assessee is the Act. Therefore, according to him, this ground of appeal of the assessee is the Act. Therefore, according to him, this ground of appeal of the assessee is devoid of merits and need to be dismissed. devoid of merits and need to be dismissed.

10 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. the erstwhile partners of the firm, then the defect if any is covered u/s. 292BB of the Act. He the erstwhile partners of the firm, then the defect if any is covered u/s. 292BB of the Act. He the erstwhile partners of the firm, then the defect if any is covered u/s. 292BB of the Act. He argued that the assessee is not clear as to whether its case is that, the notice itself is defective that the assessee is not clear as to whether its case is that, the notice itself is defective that the assessee is not clear as to whether its case is that, the notice itself is defective or whether the service of the notice is defective. or whether the service of the notice is defective.

“17. MrZoheb Hossain, learned Counsel appearing on behalf of the appellant submitted Hossain, learned Counsel appearing on behalf of the appellant submitted Hossain, learned Counsel appearing on behalf of the appellant submitted that:

(i) The High Court was not justified in quashing the final assessment order under section (i) The High Court was not justified in quashing the final assessment order under section (i) The High Court was not justified in quashing the final assessment order under section 143 (3) only on the ground that the 143 (3) only on the ground that the assessment was framed in the name of the assessment was framed in the name of the amalgamating company, which was not in existence, ignoring the fact that the names of amalgamating company, which was not in existence, ignoring the fact that the names of amalgamating company, which was not in existence, ignoring the fact that the names of both the amalgamated company and the amalgamating company were mentioned in the both the amalgamated company and the amalgamating company were mentioned in the both the amalgamated company and the amalgamating company were mentioned in the assessment order;

(ii) Even on the hypothesis th (ii) Even on the hypothesis that the assessment order was framed incorrectly in the name of at the assessment order was framed incorrectly in the name of the amalgamating company, it would amount to a "mistake, defect or omission" which is the amalgamating company, it would amount to a "mistake, defect or omission" which is the amalgamating company, it would amount to a "mistake, defect or omission" which is curable under section 292B when the assessment is, "in substance and effect, in conformity curable under section 292B when the assessment is, "in substance and effect, in conformity curable under section 292B when the assessment is, "in substance and effect, in conformity with or according to the intent and purpose" of the Act; to the intent and purpose" of the Act;

11 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd.

(iii) During the assessment proceedings and the subsequent proceedings in appeal, the (iii) During the assessment proceedings and the subsequent proceedings in appeal, the (iii) During the assessment proceedings and the subsequent proceedings in appeal, the amalgamating company was duly represented by the amalgamated company. No prejudice amalgamating company was duly represented by the amalgamated company. No prejudice amalgamating company was duly represented by the amalgamated company. No prejudice was caused to any of the parties by the assess was caused to any of the parties by the assessment order and hence rendering the ment order and hence rendering the assessment order invalid on a 'mere technicality' would be incorrect in law. There was assessment order invalid on a 'mere technicality' would be incorrect in law. There was assessment order invalid on a 'mere technicality' would be incorrect in law. There was effective participation of the assessee in the assessment proceedings and there was no effective participation of the assessee in the assessment proceedings and there was no effective participation of the assessee in the assessment proceedings and there was no doubt in the minds of those who participated ab doubt in the minds of those who participated about the entity in relation to which the out the entity in relation to which the assessment proceedings took place;' assessment proceedings took place;' 14. We note the Hon'ble Supreme Court answering the question against the Revenue and We note the Hon'ble Supreme Court answering the question against the Revenue and We note the Hon'ble Supreme Court answering the question against the Revenue and in favour of the assessee, held that irrespective of the fact that the final order contained in favour of the assessee, held that irrespective of the fact that the final order contained in favour of the assessee, held that irrespective of the fact that the final order contained the names of the non-existent entity and the suc existent entity and the successor assessee, since the notice u/s 143(2) of the essor assessee, since the notice u/s 143(2) of the Act was issued in the name of a non Act was issued in the name of a non-existent entity, it rendered the entire proceedings and existent entity, it rendered the entire proceedings and consequent order to be nullity in the eyes of law. The relevant consequent order to be nullity in the eyes of law. The relevant findings of the Hon'ble findings of the Hon'ble Supreme Court, are as follows: Supreme Court, are as follows:

"19. While assessing the merits of the rival submissions, it is necessary at the outset to "19. While assessing the merits of the rival submissions, it is necessary at the outset to "19. While assessing the merits of the rival submissions, it is necessary at the outset to advert to certain significant facets of the present case: advert to certain significant facets of the present case:

(i) Firstly, the income which is sought to be subj Firstly, the income which is sought to be subjected to the charge of tax for AY ected to the charge of tax for AY 2012-13 is the income of the erstwhile entity (SPIL) prior to amalgamation. This is on 13 is the income of the erstwhile entity (SPIL) prior to amalgamation. This is on 13 is the income of the erstwhile entity (SPIL) prior to amalgamation. This is on account of a transfer pricing addition of Rs. 78.97 crores; account of a transfer pricing addition of Rs. 78.97 crores;

(ii) Secondly, under the approved scheme of amalgamation, the transferee Secondly, under the approved scheme of amalgamation, the transferee Secondly, under the approved scheme of amalgamation, the transferee has assumed the liabilities of the transferor company, including tax liabilities; assumed the liabilities of the transferor company, including tax liabilities; assumed the liabilities of the transferor company, including tax liabilities;

(iii) Thirdly, the consequence of the scheme of amalgamation approved under section 394 (iii) Thirdly, the consequence of the scheme of amalgamation approved under section 394 (iii) Thirdly, the consequence of the scheme of amalgamation approved under section 394 of the Companies Act 1956 is that the amalgamating company ceased to exist. In Sarasw of the Companies Act 1956 is that the amalgamating company ceased to exist. In Sarasw of the Companies Act 1956 is that the amalgamating company ceased to exist. In Saraswati Industrial Syndicate Ltd., (supra) the principle has been formulated by this Court in the Industrial Syndicate Ltd., (supra) the principle has been formulated by this Court in the Industrial Syndicate Ltd., (supra) the principle has been formulated by this Court in the following observations:

"5. Generally, where only one company is involved in change and the rights of the "5. Generally, where only one company is involved in change and the rights of the "5. Generally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to re shareholders and creditors are varied, it amounts to reconstruction or reorganisation of construction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by scheme of arrangement. In amalgamation two or more companies are fused into one by scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or 'amalgamation' has no precise merger or by taking over by another. Reconstruction or 'amalgamation' has no precise merger or by taking over by another. Reconstruction or 'amalgamation' has no precise legal meaning. The amalgamation is a blending of two o legal meaning. The amalgamation is a blending of two or more existing undertakings into r more existing undertakings into one undertaking, the shareholders of each blending company become substantially the one undertaking, the shareholders of each blending company become substantially the one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be shareholders in the company which is to carry on the blended undertakings. There may be shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more amalgamation either by the transfer of two or more undertakings to a new company, or by undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' does not cover the mere acquisition by a company of the share capital of other company does not cover the mere acquisition by a company of the share capital of other company does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues i which remains in existence and continues its undertaking but the context in which the term ts undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new England (4th edition volume 7 para 1539). Two companies may join to form a new England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorptio company, but there may be absorption or blending of one by the other, both amount to n or blending of one by the other, both amount to

12 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. amalgamation. When two companies are merged and are so joined, as to form a third amalgamation. When two companies are merged and are so joined, as to form a third amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company company or one is absorbed into one or blended with another, the amalgamating company company or one is absorbed into one or blended with another, the amalgamating company loses its entity."

(iv) Fourthly, upon the amalgamating company ceasing to exist, it cannot be regarded on the amalgamating company ceasing to exist, it cannot be regarded on the amalgamating company ceasing to exist, it cannot be regarded as a person under section 2(31) of the Act 1961 against whom assessment proceedings can as a person under section 2(31) of the Act 1961 against whom assessment proceedings can as a person under section 2(31) of the Act 1961 against whom assessment proceedings can be initiated or an order of assessment passed; be initiated or an order of assessment passed;

(v) Fifthly, a notice under section 143 (2) was iss Fifthly, a notice under section 143 (2) was issued on 26 September 2013 to the ued on 26 September 2013 to the amalgamating company, SPIL, which was followed by a notice to it under section 142(1); amalgamating company, SPIL, which was followed by a notice to it under section 142(1); amalgamating company, SPIL, which was followed by a notice to it under section 142(1);

(vi) Sixthly, prior to the date on which the jurisdictional notice under section 143 (2) Sixthly, prior to the date on which the jurisdictional notice under section 143 (2) Sixthly, prior to the date on which the jurisdictional notice under section 143 (2) was issued, the scheme of amalgamation had bee was issued, the scheme of amalgamation had been approved on 29 January 2013 by the n approved on 29 January 2013 by the High Court of Delhi under the Companies Act 1956 with effect from 1 April 2012; High Court of Delhi under the Companies Act 1956 with effect from 1 April 2012; High Court of Delhi under the Companies Act 1956 with effect from 1 April 2012;

(vii) Seventhly, the assessing officer assumed jurisdiction to make an assessment in Seventhly, the assessing officer assumed jurisdiction to make an assessment in Seventhly, the assessing officer assumed jurisdiction to make an assessment in pursuance of the notice under section 143 (2). The no pursuance of the notice under section 143 (2). The notice was issued in the name of the tice was issued in the name of the amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company MSIL had addressed a communication to the assessing officer intimating the fact of MSIL had addressed a communication to the assessing officer intimating the fact of MSIL had addressed a communication to the assessing officer intimating the fact of amalgamation. In the above conspectus of the facts amalgamation. In the above conspectus of the facts, the initiation of assessment , the initiation of assessment proceedings against an entity, which had ceased to exist was void ab initio proceedings against an entity, which had ceased to exist was void ab initio proceedings against an entity, which had ceased to exist was void ab initio.[Emphasis given by us] 15. It is noted that, in this later judgment, the Hon’ble Supreme Court had considered the later judgment, the Hon’ble Supreme Court had considered the judgment rendered by them earlier earlier in the case of Skylight Hospitality Ltd. Vs. Asst. CIT in the case of Skylight Hospitality Ltd. Vs. Asst. CIT (supra), cited by the ld. CIT, DR. (supra), cited by the ld. CIT, DR. Accordingly, the Hon’ble Apex Court held that issuance of Accordingly, the Hon’ble Apex Court held that issuance of notice u/s 143(2) in the name of a non notice u/s 143(2) in the name of a non-existent person was a jurisdictional defect which could existent person was a jurisdictional defect which could not be cured. We are thus bound to follow the later judgment of the Hon’ble Supreme Court. We are thus bound to follow the later judgment of the Hon’ble Supreme Court. We are thus bound to follow the later judgment of the Hon’ble Supreme Court.

13 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. (Rs. 11,05,586/-) and receipts of Rupees Twenty Five Thousand Four Hund ) and receipts of Rupees Twenty Five Thousand Four Hund ) and receipts of Rupees Twenty Five Thousand Four Hundred Fourteen (Rs. 25,414/-) as per Form 26AS. It was noticed that no return had been filed and the ) as per Form 26AS. It was noticed that no return had been filed and the ) as per Form 26AS. It was noticed that no return had been filed and the source of the aforesaid deposits and receipts remained unexplained and had escaped source of the aforesaid deposits and receipts remained unexplained and had escaped source of the aforesaid deposits and receipts remained unexplained and had escaped assessment. Accordingly, the case of Mr. Mohinder Paul assessment. Accordingly, the case of Mr. Mohinder Paul Kapila was selected was selected under section 147/148 of the Act 1961, after recording of reasons and approval of PCIT section 147/148 of the Act 1961, after recording of reasons and approval of PCIT section 147/148 of the Act 1961, after recording of reasons and approval of PCIT-15, Delhi on 28th March, 2019. Delhi on 28th March, 2019. 3. However, late ShriMohinder Paul However, late ShriMohinder Paul Kapila (hereinafter referred to as "deceased (hereinafter referred to as "deceased- assessee") had already expired on 21st December, 2018. Th assessee") had already expired on 21st December, 2018. The deceased assessee is e deceased assessee is survived by two sons and two daughters. survived by two sons and two daughters. 4. Notice dated 31st March, 2019 under section 148 of the Act 1961 for A.Y. 2012 Notice dated 31st March, 2019 under section 148 of the Act 1961 for A.Y. 2012 Notice dated 31st March, 2019 under section 148 of the Act 1961 for A.Y. 2012-2013 was issued, i.e. on the last date of limitation, in the name of deceased assessee on the last date of limitation, in the name of deceased assessee on the last date of limitation, in the name of deceased assessee ShriMohinder Paul Kapila Kapila with PAN: ASXPK1666P and sent at his last known address with PAN: ASXPK1666P and sent at his last known address known to the Income-tax Department tax Department i.e. Flat No. 286, 1st Floor, D Flats, Sector 9, Pkt Flat No. 286, 1st Floor, D Flats, Sector 9, Pkt- 1, Dwarka, New Delhi 110075. The impugned notice could not and was never served 1, Dwarka, New Delhi 110075. The impugned notice could not and was never served 1, Dwarka, New Delhi 110075. The impugned notice could not and was never served upon Late ShriMohinder Paul upon Late ShriMohinder Paul Kapila. Thereafter ACIT, Circle 43(1), Delhi (hereinafter la. Thereafter ACIT, Circle 43(1), Delhi (hereinafter referred to as "Assessing Officer") issued notices dated 22nd August, 2019, 27th August, referred to as "Assessing Officer") issued notices dated 22nd August, 2019, 27th August, referred to as "Assessing Officer") issued notices dated 22nd August, 2019, 27th August, 2019 & 18th September, 2019 to the deceased assessee. The said notices were also 2019 & 18th September, 2019 to the deceased assessee. The said notices were also 2019 & 18th September, 2019 to the deceased assessee. The said notices were also neither served upon the assessee nor upon any of his legal heirs. neither served upon the assessee 17. We note that, on the above facts, the contention raised by the Revenue before the We note that, on the above facts, the contention raised by the Revenue before the We note that, on the above facts, the contention raised by the Revenue before the Hon’ble High Court were similar to that of the ld. CIT, DR in the present case. Relying upon Hon’ble High Court were similar to that of the ld. CIT, DR in the present case. Relying upon Hon’ble High Court were similar to that of the ld. CIT, DR in the present case. Relying upon the provisions of Section 292B of the Act a the provisions of Section 292B of the Act and the decision rendered in the case of Skylight nd the decision rendered in the case of Skylight Hospitality Ltd. Vs. Asst. CIT (supra), the Revenue contended that the mistake of issuance of Hospitality Ltd. Vs. Asst. CIT (supra), the Revenue contended that the mistake of issuance of Hospitality Ltd. Vs. Asst. CIT (supra), the Revenue contended that the mistake of issuance of notice in the name of non-existent person was a curable defect. For the sake of convenience, existent person was a curable defect. For the sake of convenience, existent person was a curable defect. For the sake of convenience, the relevant extracts of the Revenue’s submissions are set out below, s of the Revenue’s submissions are set out below,

14 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. 19. He contended that the Revenue had acted bona fide at the time of issuance of notice 19. He contended that the Revenue had acted bona fide at the time of issuance of notice 19. He contended that the Revenue had acted bona fide at the time of issuance of notice under section 148 of the Act as it had under section 148 of the Act as it had no knowledge of the death of the assessee. He relied no knowledge of the death of the assessee. He relied upon the judgment of this Court in Skylight Hospitality LLP v. Assistant Commissioner of upon the judgment of this Court in Skylight Hospitality LLP v. Assistant Commissioner of upon the judgment of this Court in Skylight Hospitality LLP v. Assistant Commissioner of Income Tax, Circle-28(1), New Delhi [2018] 405 ITR 296 (Delhi) to submit that even if 28(1), New Delhi [2018] 405 ITR 296 (Delhi) to submit that even if 28(1), New Delhi [2018] 405 ITR 296 (Delhi) to submit that even if there was any defect in the there was any defect in the notice, it would be a bona fide curable defect under section notice, it would be a bona fide curable defect under section 292B of the Act, 1961. 18. The Hon’ble High Court however answered the question in favour of the assessee, by The Hon’ble High Court however answered the question in favour of the assessee, by The Hon’ble High Court however answered the question in favour of the assessee, by observing as under:

15 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the judgment of Skylight Hospitality (supra) had been cited by the revenue. f Skylight Hospitality (supra) had been cited by the revenue.

“12. In view of the proceedings initiated under section 148 of the Act at the 'n'th hour “12. In view of the proceedings initiated under section 148 of the Act at the 'n'th hour “12. In view of the proceedings initiated under section 148 of the Act at the 'n'th hour before the limitation getting lapsed on 31 before the limitation getting lapsed on 31-3-2018, even if the matter is now remanded 2018, even if the matter is now remanded back to the Assessing Officer, it would be a futile exercise, since the d back to the Assessing Officer, it would be a futile exercise, since the d back to the Assessing Officer, it would be a futile exercise, since the defective notice issued under section 148 of the Act, cannot be cured at this length of time. issued under section 148 of the Act, cannot be cured at this length of time. issued under section 148 of the Act, cannot be cured at this length of time.

"In the present case, despite the fact that the assessing "In the present case, despite the fact that the assessing officer was informed of the officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamating company having ceased to exist as a result of the approved scheme of amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which amalgamation, the jurisdictional notice was issued only in its name. The basis on which amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with th jurisdiction was invoked was fundamentally at odds with the legal principle that the e legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. amalgamating entity ceases to exist upon the approved scheme of amalgamation. amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as Participation in the proceedings by the appellant in the circumstances cannot operate as Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in an estoppel against law. This position now holds the field in view of the judgment of a co view of the judgment of a co- ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Entertainment on 2 November 2017. The decision in Spice Entertainment has been Entertainment on 2 November 2017. The decision in Spice Entertainment has been Entertainment on 2 November 2017. The decision in Spice Entertainment has been followed in the case of the respondent while dismissing the followed in the case of the respondent while dismissing the Special Leave Petition for AY Special Leave Petition for AY 2011-12. In doing so, this Court has relied on the decision in Spice Entertainment." 12. In doing so, this Court has relied on the decision in Spice Entertainment." 12. In doing so, this Court has relied on the decision in Spice Entertainment."

While arriving at such a decision, the Hon'ble Apex Court has taken note of Section 292 While arriving at such a decision, the Hon'ble Apex Court has taken note of Section 292 While arriving at such a decision, the Hon'ble Apex Court has taken note of Section 292- B of the Act also, which is apposite to refer to and B of the Act also, which is apposite to refer to and the same reads as under; the same reads as under;

"292B. No return of income, assessment, notice, summons or other proceeding, furnished "292B. No return of income, assessment, notice, summons or other proceeding, furnished "292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or or made or issued or taken or purported to have been furnished or made or issued or or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provision of this Act sha taken in pursuance of any of the provision of this Act shall be invalid or shall be deemed ll be invalid or shall be deemed to be invalid merely by reason of any mistake, defect, or omission in such return of to be invalid merely by reason of any mistake, defect, or omission in such return of to be invalid merely by reason of any mistake, defect, or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, income, assessment, notice, summons or other proceeding if such return of income, income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in su assessment, notice, summons or other proceeding is in substance and effect in conformity bstance and effect in conformity with or according to the intent and purpose of this Act." with or according to the intent and purpose of this Act."

The jurisdiction assumed by the Assessing Officer to issue notice under Section 148 of the The jurisdiction assumed by the Assessing Officer to issue notice under Section 148 of the The jurisdiction assumed by the Assessing Officer to issue notice under Section 148 of the Act to non-existing company is substantive illegality and not the procedu existing company is substantive illegality and not the procedu existing company is substantive illegality and not the procedural violation of the nature adverted to in Section 292 the nature adverted to in Section 292-B of the Act. The substantive defective notice issued B of the Act. The substantive defective notice issued against a non-existing company is not curable. On this ground alone, without existing company is not curable. On this ground alone, without existing company is not curable. On this ground alone, without adjudicating upon the other issues raised by the petitioner inasmuch a adjudicating upon the other issues raised by the petitioner inasmuch a adjudicating upon the other issues raised by the petitioner inasmuch as the limitation aspect, change of opinion, non aspect, change of opinion, non-existence of tangible material and non-failure on the part failure on the part

16 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. of the assessee disclosing full and true material facts need not be examined. Without of the assessee disclosing full and true material facts need not be examined. Without of the assessee disclosing full and true material facts need not be examined. Without going into these aspects, the writ petition requires to be allo going into these aspects, the writ petition requires to be allowed on the ground of wed on the ground of issuance of notice under section 148 of the Act to the non issuance of notice under section 148 of the Act to the non-existing company. existing company.

“4.1. Admittedly, the re Admittedly, the re-opening of assessment is after the expiry of four years from the opening of assessment is after the expiry of four years from the end of assessment year 2008 end of assessment year 2008-09 and hence the proviso to Section 147 of the Act comes 09 and hence the proviso to Section 147 of the Act comes into play. A reading of the reasons recorded for re into play. A reading of the reasons recorded for re-opening of assessment shows that ssment shows that there is no allegation made, that there is failure on the part of the assessee to truly and there is no allegation made, that there is failure on the part of the assessee to truly and there is no allegation made, that there is failure on the part of the assessee to truly and fully disclose material facts necessary for the assessment. Under these circumstances, we fully disclose material facts necessary for the assessment. Under these circumstances, we fully disclose material facts necessary for the assessment. Under these circumstances, we have to hold that the re-opening of assessment is bad in opening of assessment is bad in law. 4.2. This Kolkata ‘A’ Bench of the Tribunal in the case of This Kolkata ‘A’ Bench of the Tribunal in the case of M/s. Beekay Steel M/s. Beekay Steel Industries Ltd. vs. DCIT, CC Industries Ltd. vs. DCIT, CC-XXX, Kolkata in ITA No. 105/Kol/2015 ITA No. 105/Kol/2015, order dated

17 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. 31.05.2017 considered the legal issue and the propositions of law laid down by various 31.05.2017 considered the legal issue and the propositions of law laid down by various 31.05.2017 considered the legal issue and the propositions of law laid down by various High Courts and held as follows: Courts and held as follows: “4.4. The Hon’ble Bombay High Court in the case of Tao Publishing (P) Ltd. v. Dy.CIT “4.4. The Hon’ble Bombay High Court in the case of Tao Publishing (P) Ltd. v. Dy.CIT “4.4. The Hon’ble Bombay High Court in the case of Tao Publishing (P) Ltd. v. Dy.CIT reported in (2015) 370 ITR 135 (Bom.), has held as follows: reported in (2015) 370 ITR 135 (Bom.), has held as follows:- “10. As stated above, the reasons supplied to the Petitioner do not disclose t “10. As stated above, the reasons supplied to the Petitioner do not disclose t “10. As stated above, the reasons supplied to the Petitioner do not disclose that there was any failure on the part of the Petitioner to provide all the material facts. That being the any failure on the part of the Petitioner to provide all the material facts. That being the any failure on the part of the Petitioner to provide all the material facts. That being the position, this ground could not have been taken up against the Petitioner at the time of position, this ground could not have been taken up against the Petitioner at the time of position, this ground could not have been taken up against the Petitioner at the time of disposing of the objections. Once this was not the basis for disposing of the objections. Once this was not the basis for issuance of notice for issuance of notice for Reassessment, it cannot be held against the Petitioner that the Petitioner had failed to Reassessment, it cannot be held against the Petitioner that the Petitioner had failed to Reassessment, it cannot be held against the Petitioner that the Petitioner had failed to make a true and full disclosure. It will have to be held that the Petitioner did not fail to make a true and full disclosure. It will have to be held that the Petitioner did not fail to make a true and full disclosure. It will have to be held that the Petitioner did not fail to make full and true disclosure of all material facts make full and true disclosure of all material facts. The jurisdictional requirement for . The jurisdictional requirement for carrying out the reassessment, after the expiry of period of four years, is not fulfilled in carrying out the reassessment, after the expiry of period of four years, is not fulfilled in carrying out the reassessment, after the expiry of period of four years, is not fulfilled in the present case.” 4.5. The Hon’ble Bombay High Court in the case of Sound Casting (P) Ltd. v. Dy. CIT 4.5. The Hon’ble Bombay High Court in the case of Sound Casting (P) Ltd. v. Dy. CIT 4.5. The Hon’ble Bombay High Court in the case of Sound Casting (P) Ltd. v. Dy. CIT reported in 250 CTR 119 (Bom.) (HC), has held that there is no allegation in the reasons 119 (Bom.) (HC), has held that there is no allegation in the reasons 119 (Bom.) (HC), has held that there is no allegation in the reasons which have been disclosed to the assessee that there was any failure on his part to fully which have been disclosed to the assessee that there was any failure on his part to fully which have been disclosed to the assessee that there was any failure on his part to fully and truly disclose material facts necessary for assessment and therefore reopening and truly disclose material facts necessary for assessment and therefore reopening and truly disclose material facts necessary for assessment and therefore reopening beyond four years was not valid. (A.Y. 2005 ars was not valid. (A.Y. 2005-06). 4.6. The Hon’ble Delhi High Court in the case of CIT vs. Orient Craft Ltd. reported in 4.6. The Hon’ble Delhi High Court in the case of CIT vs. Orient Craft Ltd. reported in 4.6. The Hon’ble Delhi High Court in the case of CIT vs. Orient Craft Ltd. reported in [2013] 354 ITR 356 (Del.)(HC) has held as follows: [2013] 354 ITR 356 (Del.)(HC) has held as follows: “The reasons recorded by the Assessing Officer in the present case do confirm our “The reasons recorded by the Assessing Officer in the present case do confirm our “The reasons recorded by the Assessing Officer in the present case do confirm our apprehension about the harm that a less strict interpretation of the words “reason to apprehension about the harm that a less strict interpretation of the words “reason to apprehension about the harm that a less strict interpretation of the words “reason to believe” vis-à-vis an intimation issued under section 143(1) can cause to the tax regime. vis an intimation issued under section 143(1) can cause to the tax regime. vis an intimation issued under section 143(1) can cause to the tax regime. There is no whisper in the reasons recorded, of any tangible material which cam There is no whisper in the reasons recorded, of any tangible material which cam There is no whisper in the reasons recorded, of any tangible material which came to the possession of the assessing officer subsequent to the issue of the intimation. It reflects an possession of the assessing officer subsequent to the issue of the intimation. It reflects an possession of the assessing officer subsequent to the issue of the intimation. It reflects an arbitrary exercise of the power conferred under section 147.” arbitrary exercise of the power conferred under section 147.” 4.7. The Hon’ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. v. 4.7. The Hon’ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. v. 4.7. The Hon’ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. v. Commissioner of Income issioner of Income-Tax and Anor. reported in [2009] 308 ITR 38 (Delhi) has held Tax and Anor. reported in [2009] 308 ITR 38 (Delhi) has held as follows: “26. Viewed in this light, the proviso to section 147 of the said Act, carves out an “26. Viewed in this light, the proviso to section 147 of the said Act, carves out an “26. Viewed in this light, the proviso to section 147 of the said Act, carves out an exception from the main provisions of section 147. If a case were to fall with exception from the main provisions of section 147. If a case were to fall with exception from the main provisions of section 147. If a case were to fall within the proviso, whether or not it was covered under the main provisions of section 147 of the proviso, whether or not it was covered under the main provisions of section 147 of the proviso, whether or not it was covered under the main provisions of section 147 of the said Act would not be material. Once the exception carved out by the proviso came into said Act would not be material. Once the exception carved out by the proviso came into said Act would not be material. Once the exception carved out by the proviso came into play, the case would fall outside the ambit of section 147. play, the case would fall outside the ambit of section 147. 27. Examining the proviso [set out above], we find that no action can be taken under he proviso [set out above], we find that no action can be taken under he proviso [set out above], we find that no action can be taken under section 147 after the expiry of four years from the end of the relevant assessment year if section 147 after the expiry of four years from the end of the relevant assessment year if section 147 after the expiry of four years from the end of the relevant assessment year if the following conditions are satisfied: the following conditions are satisfied: (a) an assessment under sub (a) an assessment under sub-section (3) of section 143 or this section has been made for or this section has been made for the relevant assessment year; and (b) unless any income chargeable to tax has escaped the relevant assessment year; and (b) unless any income chargeable to tax has escaped the relevant assessment year; and (b) unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee: assessment for such assessment year by reason of the failure on the part of the assessee: assessment for such assessment year by reason of the failure on the part of the assessee: (i) to make a return under section 139 or in (i) to make a return under section 139 or in response to a notice issued under sub response to a notice issued under sub-section (1) of section 142 or section 148; or (ii) to disclose fully and truly all material facts (1) of section 142 or section 148; or (ii) to disclose fully and truly all material facts (1) of section 142 or section 148; or (ii) to disclose fully and truly all material facts necessary for his assessment for that assessment year. necessary for his assessment for that assessment year.

18 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. Condition (a) is admittedly satisfied inasmuch as the original a Condition (a) is admittedly satisfied inasmuch as the original assessment was completed ssessment was completed under section 143(3) of the said Act. Condition (b) deals with a special kind of under section 143(3) of the said Act. Condition (b) deals with a special kind of under section 143(3) of the said Act. Condition (b) deals with a special kind of escapement of income chargeable to tax. The escapement must arise out of the failure on escapement of income chargeable to tax. The escapement must arise out of the failure on escapement of income chargeable to tax. The escapement must arise out of the failure on the part of the assessee to make a return under section 139 or the part of the assessee to make a return under section 139 or in response to a notice in response to a notice issued under sub-section (1) of section 142 or section 148. This is clearly not the case section (1) of section 142 or section 148. This is clearly not the case section (1) of section 142 or section 148. This is clearly not the case here because the petitioner did file the return. Since there was no failure to make the here because the petitioner did file the return. Since there was no failure to make the here because the petitioner did file the return. Since there was no failure to make the return, the escapement of income cannot be attributed t return, the escapement of income cannot be attributed to such failure. This leaves us with o such failure. This leaves us with the escapement of income chargeable to tax which arises out of the failure on the part of the escapement of income chargeable to tax which arises out of the failure on the part of the escapement of income chargeable to tax which arises out of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the assessee to disclose fully and truly all material facts necessary for his assessment for the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. If it is also f that assessment year. If it is also found that the petitioner had disclosed fully and truly all ound that the petitioner had disclosed fully and truly all material facts necessary for its assessment, then no action under section 147 could have material facts necessary for its assessment, then no action under section 147 could have material facts necessary for its assessment, then no action under section 147 could have been taken after the four year period indicated above. So, the key question is whether or been taken after the four year period indicated above. So, the key question is whether or been taken after the four year period indicated above. So, the key question is whether or not the petitioner had made a full and true disclosure of all material facts? had made a full and true disclosure of all material facts? had made a full and true disclosure of all material facts? 29. In the reasons supplied to the petitioner, there is no whisper, what to speak of any 29. In the reasons supplied to the petitioner, there is no whisper, what to speak of any 29. In the reasons supplied to the petitioner, there is no whisper, what to speak of any allegation, that the petitioner had failed to disclose fully and truly all material facts allegation, that the petitioner had failed to disclose fully and truly all material facts allegation, that the petitioner had failed to disclose fully and truly all material facts necessary for assessment and that because of this failure there has been an escapement of sessment and that because of this failure there has been an escapement of sessment and that because of this failure there has been an escapement of income chargeable to tax. Merely having a reason to believe that income had escaped income chargeable to tax. Merely having a reason to believe that income had escaped income chargeable to tax. Merely having a reason to believe that income had escaped assessment, is not sufficient to reopen assessments beyond the four year period indicated assessment, is not sufficient to reopen assessments beyond the four year period indicated assessment, is not sufficient to reopen assessments beyond the four year period indicated above. The escapement of income from assessment must also be occasioned by the failure he escapement of income from assessment must also be occasioned by the failure he escapement of income from assessment must also be occasioned by the failure on the part of the assessee to disclose material facts, fully and truly. This is a necessary on the part of the assessee to disclose material facts, fully and truly. This is a necessary on the part of the assessee to disclose material facts, fully and truly. This is a necessary condition for overcoming the bar set up by the proviso to section 147. If this condi condition for overcoming the bar set up by the proviso to section 147. If this condi condition for overcoming the bar set up by the proviso to section 147. If this condition is not satisfied, the bar would operate and no action under section 147 could be taken. We not satisfied, the bar would operate and no action under section 147 could be taken. We not satisfied, the bar would operate and no action under section 147 could be taken. We have already mentioned above that the reasons supplied to the petitioner does not contain have already mentioned above that the reasons supplied to the petitioner does not contain have already mentioned above that the reasons supplied to the petitioner does not contain any such allegation. Consequently, one of the conditions precedent for any such allegation. Consequently, one of the conditions precedent for removing the bar removing the bar against taking action after the said four year period remains unfulfilled. In our recent against taking action after the said four year period remains unfulfilled. In our recent against taking action after the said four year period remains unfulfilled. In our recent decision in Wel Intertrade Private Ltd (supra) we had agreed with the view taken by the decision in Wel Intertrade Private Ltd (supra) we had agreed with the view taken by the decision in Wel Intertrade Private Ltd (supra) we had agreed with the view taken by the Punjab and Haryana High Court in the case of Duli Chand Singh Punjab and Haryana High Court in the case of Duli Chand Singhania (supra) that, in the ania (supra) that, in the absence of an allegation in the reasons recorded that the escapement of income had absence of an allegation in the reasons recorded that the escapement of income had absence of an allegation in the reasons recorded that the escapement of income had occurred by reason of failure on the part of the assessee to disclose fully and truly all occurred by reason of failure on the part of the assessee to disclose fully and truly all occurred by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, any action t material facts necessary for his assessment, any action taken by the Assessing officer aken by the Assessing officer under section 147 beyond the four year period would be wholly without jurisdiction. under section 147 beyond the four year period would be wholly without jurisdiction. under section 147 beyond the four year period would be wholly without jurisdiction. Reiterating our view-point, we hold that the notice dated 29.03.2004 under section 148 point, we hold that the notice dated 29.03.2004 under section 148 point, we hold that the notice dated 29.03.2004 under section 148 based on the recorded reasons as supplied to the petiti based on the recorded reasons as supplied to the petitioner as well as the consequent oner as well as the consequent order dated 02.03.2005 are without jurisdiction as no action under section 147 could be order dated 02.03.2005 are without jurisdiction as no action under section 147 could be order dated 02.03.2005 are without jurisdiction as no action under section 147 could be taken beyond the four year period in the circumstances narrated above. taken beyond the four year period in the circumstances narrated above. 4.8. Applying the propositions laid down in the above case law to 4.8. Applying the propositions laid down in the above case law to the facts to this case, the facts to this case, we have to necessarily hold that the re we have to necessarily hold that the re-opening of the assessment proceedings is not valid opening of the assessment proceedings is not valid that there is not even a whisper in the reasons recorded for the reopening of the that there is not even a whisper in the reasons recorded for the reopening of the that there is not even a whisper in the reasons recorded for the reopening of the assessment that there is a failure on the part of the asse assessment that there is a failure on the part of the assessee to disclose fully and truly all ssee to disclose fully and truly all the necessary material facts required for assessment in view of the 1stproviso to Section the necessary material facts required for assessment in view of the 1stproviso to Section the necessary material facts required for assessment in view of the 1stproviso to Section 147 of the Act. In this case no tangible materials have come to the possession of the 147 of the Act. In this case no tangible materials have come to the possession of the 147 of the Act. In this case no tangible materials have come to the possession of the Assessing Officer subsequent to the Assessm Assessing Officer subsequent to the Assessment Order u/s 143(3). Re- -opening is done based on the same material and record and hence it is bad in law. As far as the based on the same material and record and hence it is bad in law. As far as the based on the same material and record and hence it is bad in law. As far as the contention, that there is a change in opinion is concerned, we are unable to agree with contention, that there is a change in opinion is concerned, we are unable to agree with contention, that there is a change in opinion is concerned, we are unable to agree with the ld. Counsel for the assessee as there was n the ld. Counsel for the assessee as there was neither a query on this issue by the either a query on this issue by the Assessing Officer during the original assessment proceedings, nor there was a reply by Assessing Officer during the original assessment proceedings, nor there was a reply by Assessing Officer during the original assessment proceedings, nor there was a reply by the assessee. Hence there was no opinion formed. Thus, the question of change of opinion the assessee. Hence there was no opinion formed. Thus, the question of change of opinion the assessee. Hence there was no opinion formed. Thus, the question of change of opinion does not arise. 4.9. In any event, as we ha 4.9. In any event, as we have held that the re-opening is bad in law as it does not fulfil the opening is bad in law as it does not fulfil the requirement of the Proviso to Section 147 of the Act, and as no tangible material has requirement of the Proviso to Section 147 of the Act, and as no tangible material has requirement of the Proviso to Section 147 of the Act, and as no tangible material has

19 ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd. come to the possession of the Assessing Officer, we quash the assessment and allow the come to the possession of the Assessing Officer, we quash the assessment and allow the come to the possession of the Assessing Officer, we quash the assessment and allow the appeal of the assessee. 5. In the result, the appeal of the assessee is allowed. 5. In the result, the appeal of the assessee is allowed. 5.1. Applying the propositions of law laid down in the above referred case 5.1. Applying the propositions of law laid down in the above referred case 5.1. Applying the propositions of law laid down in the above referred case-law to the facts of the case on hand, I hold that the re facts of the case on hand, I hold that the re-opening of assessment is bad in law. opening of assessment is bad in law. 6. In the result appeal of the assessee is allowed.” peal of the assessee is allowed.” 4.2. Respectfully following the propositions of law laid down in the above case laws Respectfully following the propositions of law laid down in the above case laws Respectfully following the propositions of law laid down in the above case laws to the facts of this case we hold that the re to the facts of this case we hold that the re-opening is bad in law. In the result, the opening is bad in law. In the result, the impugned assessment order is hereby quashed.” impugned assessment order is hereby quashed.” 22. Applying the proposition of law laid down in the decision of the coordinate Bench to Applying the proposition of law laid down in the decision of the coordinate Bench to Applying the proposition of law laid down in the decision of the coordinate Bench to the facts of this case, we note that there is no whisper much less any allegation by the AO that the facts of this case, we note that there is no whisper much less any allegation by the AO that the facts of this case, we note that there is no whisper much less any allegation by the AO that the assessee has failed to disclose material facts necessary for assessm the assessee has failed to disclose material facts necessary for assessment in the return of ent in the return of income, and therefore the reopening of assessment is held to be bad in law. income, and therefore the reopening of assessment is held to be bad in law. income, and therefore the reopening of assessment is held to be bad in law. In view of the foregoing findings, we do not deem it necessary to deal with other legal arguments put forth foregoing findings, we do not deem it necessary to deal with other legal arguments put forth foregoing findings, we do not deem it necessary to deal with other legal arguments put forth by the assessee challenging the validity of reasses by the assessee challenging the validity of reassessment as well as on merits as well as on merits as since it has now become academic in nature. Accordingly, Ground Nos. now become academic in nature. Accordingly, Ground Nos. 1 to 3 stands allowed. stands allowed.

Order is pronounced in the open court on 29th June, 2021 Order is pronounced in the open court on

Sd/- Sd/- J. Sudhakar Reddy] [Aby T. Varkey] [J. Sudhakar Reddy Judicial Member Accountant Member Accountant Member

Dated: 29.06.2021 {SC SPS}

ITA No. 2422/Kol/2018 Assessment Year: 2010-11 M/s. Emta Coal Ltd.

Copy of the order forwarded to: 1. M/s. Emta Coal Ltd 5B, Nandlal Basu Sarani Kolkata – 700 071 2. Asstt. Commissioner of Income Tax, Central Circle Commissioner of Income Tax, Central Circle-3(1), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.