2019 (7) TMI 1554 - AT - Income Tax

Invalid Assessment Quashed Due to Non-Existent Entity; Key Issues Remain Unaddressed

The Tribunal quashed the entire assessment as the draft assessment order was issued in the name of a non-existent entity post-merger, making the ... Assessment 144C(5) - draft assessment order in the name of entity which is not in existence on the date of passing the order on account of merger with the Appellant - HELD THAT:- The expression ‘assessment’ can also mean the procedures laid down in the Act, if the context so requires; and, qua Sec. 170 of the Act, the word ‘assessment’ has to be understood as procedure laid down therein. Accordingly, under Section 170 of the Act, the Assessing Officer was required not only to complete, but also to conduct assessment (i.e. following the prescription of Sec. 144C of the Act in this case) in the hands of the successor in the like manner and to the same extent as it would have been done in the hands of the predecessor. Ostensibly, in the present case, the TPO as well as the Assessing Officer have failed to do so by passing the transfer pricing order under Section 92CA(3) of the Act and the draft assessment in the name of FEIPL, a non-existent entity and hence the argument of the ld. DR that the provisions of Section 170 of the Act have been complied is untenable. We hold that the entire assessment in the present case is vitiated in law and is hereby quashed. In the result, Ground of appeal no. 1 is allowed. Issues Involved:1. Jurisdiction of the Assessing Officer (AO) in passing the draft assessment order.2. Disallowance under Section 43B of the Income-tax Act, 1961.3. Transfer Pricing adjustments and selection of comparable companies.4. Credit of Advance Tax paid.5. Levy of interest under Sections 234B and 234C of the Act.Issue-wise Detailed Analysis:1. Jurisdiction of the Assessing Officer (AO) in passing the draft assessment order:The primary issue raised by the assessee was the validity of the draft assessment order passed by the AO in the name of a non-existent entity, Federal Express India Private Limited (FEIPL), which had merged with the appellant. The assessee argued that the draft assessment order was bad in law, null, and void ab initio, as it was passed in the name of an entity that ceased to exist due to the merger. The Tribunal agreed with the assessee, noting that the scheme of amalgamation was approved by the Hon'ble Bombay High Court, and the AO was informed of the merger. The Tribunal held that the draft assessment order passed in the name of a non-existent entity was invalid, leading to the entire assessment proceedings being quashed.2. Disallowance under Section 43B of the Income-tax Act, 1961:The assessee contested the disallowance of INR 46,88,806 under Section 43B related to the provision for leave encashment. The AO disallowed the deduction for the amount paid during AY 2011-12 towards leave encashment before the specified date. The Tribunal did not adjudicate this ground as the entire assessment was quashed on jurisdictional grounds.3. Transfer Pricing adjustments and selection of comparable companies:The assessee challenged the transfer pricing adjustments made by the AO/TPO/DRP, including the recomputation of the arm's length price of international transactions and the selection of comparable companies. Specific issues included the inclusion of Inmacs Management Services Limited and ICC International Agencies Limited as comparables and the adjustment of notional interest on delayed collections from Associated Enterprises (AEs). The Tribunal did not adjudicate these grounds as the entire assessment was quashed on jurisdictional grounds.4. Credit of Advance Tax paid:The assessee claimed that the AO erred in not granting credit for advance tax paid amounting to INR 20,00,000. The Tribunal did not adjudicate this ground as the entire assessment was quashed on jurisdictional grounds.5. Levy of interest under Sections 234B and 234C of the Act:The assessee contested the levy of interest under Sections 234B and 234C of the Act. The Tribunal did not adjudicate this ground as the entire assessment was quashed on jurisdictional grounds.Conclusion:The Tribunal quashed the entire assessment on the grounds that the draft assessment order was passed in the name of a non-existent entity, thereby rendering the entire assessment proceedings invalid. Consequently, all other grounds raised by the assessee were rendered academic and were not adjudicated.