TaxTMI 
TaxTMI 
2017 (5) TMI 1035
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....Officer in both these assessment years is bad in law and void ab initio as these assessment orders were passed on a non-existent entity. He submits that as on the date of passing the assessment orders the Assessee namely DSP Merrill Lynch Securities Trading Ltd amalgamated with DSP Merrill Lynch Ltd and therefore the assessments were made on a non-existent company. The Ld. Counsel submits that the additional ground being a legal ground and necessary facts are already on record and no fresh investigations are required in respect of the facts, the same may be admitted for adjudication. 3. The Ld. DR objected for admission of additional ground. He submitted that this ground was never raised before the lower authorities and therefore cannot be admitted at this stage. 4. Heard both the parties on admission of additional ground. It is not disputed by the Ld. DR that it is a legal ground and a fresh investigation of facts are not required in this case to adjudicate the additional ground. Therefore, following the ratio of judgement of the Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd. Vs. CIT [229 ITR 383], the additional ground is admitted for adjudication ....
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....IT Vs. Intel Technology India Pvt. Ltd. [380 ITR 272] (Kar) (iii) Siemens Technology Services Pvt. Ltd. Vs. ACIT in ITA No. 6313/Mum/2012 dated 16.11.2016 (iv) Westlife Development Ltd. Vs. Pr.CIT in ITA No.688/Mum/2016 6. We have heard both the parties, perused the orders of the authorities below and the decisions relied on. The Coordinate Bench in the case of Siemens Technology Services Pvt. Ltd. (supra) considered the above decisions of the Hon'ble Delhi and Karnataka High Courts, which the Ld. Counsel relied on and also taking note of the decision of the Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani & Anr., in Writ Petition No.1069 of 2016 dated 08.06.2016 held that framing of assessment in respect of a non-existent entity goes to the root of the jurisdiction of the Assessing Officer and an order passed in the name of non-existent entity is nullity in the eyes of law. Therefore it was held that assessments are invalid and void ab initio. While coming to such conclusion, the Coordinate Bench observed as under: "8. We have carefully considered the rival submissions. The fact-situation in the present appeal clearly brings out that at the time of finalizat....
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....passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon 'ble High Court was that the assessment was framed against a non-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved consequent upon its amalgamation with M/s. MCorp Private Ltd. w.e.f. 1.7.2003 was a mere procedural defect. In this background, the Hon'ble Delhi High Court formulated the following questions of law: "(i) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the action of the Assessing Officer in framing assessment in the name of "Spice Corp Ltd.", after the said entity stood dissolved consequent upon its amalgamation with Mcorp Private Limited w.e.f 01.07.2003, was a mere "procedural defect"? (ii) Whether on the fa....
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....ot in substance and effect in confirmative with or according to the intend and purpose of this Act? (3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals ?" 11. To the similar effect are the judgements of the Hon 'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and Micro India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is safe to deduce that an order of assessment made on an entity which is otherwise non-existent on the date of such assessment is invalid. 12. Factually speaking, in the present case the aforesaid proposition applies on all fours, as before the finalization of the impugned assessment on 19.12.2008, it was brought to the notice of the Assessing Officer that IT! CL stood amalgamated with IHL w.e.f. 1.4.2007 in terms of a scheme of amalgamation approved by the Hon'ble High Court vide ....
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....the entirety of facts and circumstances of the case, we set- aside the action of the Assessing Officer in framing the impugned assessment against the Siemens Corporate Finance Pvt. Ltd. on 16/08/2012, because on the said date, it was a non-existing concern on account of its amalgamation with Siemens Technology and Services Pvt. Ltd. w.e.f. 01/10/2011 following the scheme of amalgamation approved by the Hon'ble Bombay High Court on 26/08/2011(supra). As a consequence, the assessment order dated 16/08/2012 is held to be as invalid and void-ab-initio. Since we have upheld the preliminary plea of the assessee, which goes to the root of the jurisdiction and the assessment order has been set-aside as void-a b-initio, the necessity to examine the other Grounds of appeal raised by the assessee on merits of the assessment are obviated Thus, in conclusion, we allow the appeal of the assessee, as above." 7. The above view of the Coordinate Bench is also affirmed by the Hon'ble Delhi High Court in the case of CIT Vs. Micron Steels (P) Ltd. [372 ITR 386] wherein it was held as under : "The Revenue in these appeals claims to be aggrieved by the order of the Income-tax Appellate Tribunal ("....
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....longer existed on account of the amalgamation order, dated February 19, 2010. The Commissioner of Income-tax (Appeals) guided by various previous decisions of this court, formed the opinion that the contentions of the respondent-assessee was substantial and that the assessment orders as framed, were unsustainable. He, accordingly, set aside the assessment order. 4. The Revenue's appeal was rejected. The Income-tax Appellate Tribunal relied upon several judgments including one of the Division Bench of this court in Spice Entertainment Ltd. v. CST [I.T. Appeal No. 475 of 2011, dated August 3, 2011] the Income-tax Appellate Tribunal held as follows : "8. We have carefully considered the submission in this regard and perused the records. We fully concur with the finding of the learned Commissioner of Income-tax (Appeals) that a company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with incorporation and it dies with the dissolution as per the provisions of the Companies Act. On amalgamation, the company ceases to exist in the eye of the law. Thus, assessment upon a dissolved company is impermissible as there is no provision in....
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....ere was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The company judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. v. D.L. Mainwaring (T/A Inshore) [1986] BCLC 342 (CA) that 'once a company is dissolved it becomes a non-existent party and, therefore, no action can be brought in its name. Thus, an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved." 8. Further in the case of CIT V/s Micra India (P) Ltd (2015) 231 Taxman 809 (Delhi), the Hon'ble Delhi High Court has held as under: "10. In the present case, no doubt there was participation during the course of assessment; however, the AO, despite being told that the original company was no longer in existence, did not take remedial measures and did not transpose the transferee as the company which had to be assessed. Inst....