AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 1340
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....O are bad in law and void ab initio as the same have been passed on a non-existent entity, namely, Shell Technology India Pvt. Ltd." 3. At the time of hearing, insofar as the admission of the said additional Ground of appeal is concerned, the case made out was that the said Ground involves a point of law for which the necessary facts are available from the record itself and, therefore, it deserves to be admitted for adjudication following the ratio of the judgments of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd., 229 ITR 383 (SC) and Jute Corporation of India Ltd., 187 ITR 688 (SC). On this aspect, it is quite clear that the plea in the Additional Ground is that the assessment order passed by the Assessing Officer in the name of M/s. Shell Technology India Pvt. Ltd. is void-ab-initio because on the date of the assessment order, the said concern had ceased to exist on account of its merger with M/s. Shell India Markets Pvt. Ltd. w.e.f. 01.04.2008. Be that as it may, it is quite clear that the aforesaid plea involves a point of law and the necessary facts required to adjudicate the same are emerging from the record and no fresh investigation of facts....
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....communication of the assessee dated 21.09.2010, copy of which has been placed in the Paper Book at pages 536 to 538, whereby the assessing authority, in the course of assessment proceedings for Assessment Year 2007-08, was informed that M/s. Shell Technology India Pvt. Ltd. stood merged with M/s. Shell India Markets Pvt. Ltd. w.e.f. 01.04.2008 in pursuance to the scheme of merger having been approved by the two Hon'ble High Courts. It is also seen from the said communication that the copies of the orders passed by the Hon'ble High Courts were also furnished to the Assessing Officer, and the Assessing Officer was informed that the merged entity is called "Shell India Markets Pvt. Ltd.". In this background, the contention of the assessee is that the subsequent assessment finalised by the Assessing Officer on 30.11.2012 (supra) in the name of 'M/s. Shell Technology India Pvt. Ltd.' is erroneous in law, as it is made in the name of a non-existent assessee. It was, therefore, contended having regard to the following judicial rulings - i) M/s. Instant Holdings Ltd. (Successor to Instant Trading & Investment Company Ltd.), ITA Nos. 4593 & 4748/Mum/2011 dated 09.03.2016 ii) M/s....
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....d set-aside. The Tribunal in the case of M/s. Instant Holdings Ltd. (supra) referred and relied upon the judgments of the (i) Hon'ble Delhi High Court in the case of Spice Entertainment Ltd. vs. CIT, ITA No. 475 of 2011 dated 03.08.2011; (ii) Hon'ble Karnataka High Court in the case of CIT vs. Intel Technology India Pvt. Ltd., 57 Taxmann.com 159; and, (iii) Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. vs. Commissioner of Wealth Tax, 347 ITR 664 in coming to conclude that an assessment order made in the name of a non-existent concern was invalid and quashed such an assessment. In our considered opinion, having regard to the aforesaid judicial rulings and the facts of the instant case, the assessment order dated 30.11.2012 (supra) made in the name of the erstwhile non-existent concern, M/s. Shell Technology India Pvt. Ltd. is a nullity in the eyes of law and is hereby quashed. 9. Insofar as the objection of the ld. DR that it was a procedural defect is concerned, the same, in our view, is quite untenable inasmuch as the Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani & Anr. (supra) held that such an error goes to the root of ....
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....e of the assessee alongwith the name of the merged entity in the assessment order. In order to properly appreciate the said plea, we reproduce hereinafter the manner in which the assessment has been made, which is as under :- "Name of the Assessee : M/s. Shell Technology India Pvt. Ltd. (Now called as Shell India Markets Pvt. Ltd.)" 13. On the above basis, firstly, it is canvassed that the name of the new merged entity, i.e. M/s. Shell India Markets Pvt. Ltd. also features and, therefore, the assessment is in the name of new entity. In the alternative, it is contended that a mere omission on the part of the Assessing Officer to mention the name of the amalgamated entity, M/s. Shell India Markets Pvt. Ltd. in the correct sequence in place of M/s. Shell Technology India Pvt. Ltd. is only a procedural defect and, therefore, the assessment order be construed to have been validly passed and cannot be said to have been passed in the name of a non-existent person. 14. In this context, the learned representative for the assessee pointed out that the plea of the ld. DR does not distract from the fact that the assessment has indeed been made on a non-existent concern and vehemently canv....
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....erstood that the assessment has been completed in the name of the new entity, i.e. M/s. Shell India Markets Pvt. Ltd. The ratio of the discussion by the Hon'ble Delhi High Court, which we have reproduced above, clearly suggests the failure on the part of the Assessing Officer to transpose the new entity, i.e. M/s. Shell India Markets Pvt. Ltd. as the assessee which had to be assessed, inspite of having been told that the erstwhile M/s. Shell Technology India Pvt. Ltd. was no longer in existence. Therefore, the pleas of the ld. DR that the manner of putting the name of the assessee in the assessment order reflects that the assessment has been made in the name of the new entity, is not justified and is accordingly rejected. 17. Before parting, we may also refer to the reliance placed by the ld. DR on the decision rendered by the Chennai Bench of the Tribunal in the case of M/s. Zenta Knowledge Services (P) Ltd. in ITA Nos. 882/Mas/2015 & others dated 14.09.2016. In the case before the Chennai Bench, the relevant facts were that an assessment was completed in the name of one, M/s. Zenta Knowledge Services (P) Ltd. though the said concern stood merged with M/s. Accenture Services ....
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....icable in the instant case. It has also been pointed out that, going by the facts discussed in the order, the case before the Chennai Bench, dealt with a situation where appeal was filed by a non-existent assessee, which is not the situation in the instant case. In sum and substance, the stand of the learned representative is that the decision of the Chennai Bench of the Tribunal in the case of M/s. Zenta Knowledge Services (P) Ltd. (supra) would not govern the instant situation. 19. We have carefully perused the decision of our co-ordinate Bench in the case of M/s. Zenta Knowledge Services (P) Ltd. (supra) and also considered the rival stands. The Chennai Bench of the Tribunal noted that the appeal before it was filed by a non-existent concern and, therefore, the appeal proceedings did not survive at all. In the present case, the originally filed Form no. 36B shows the cause title which we have reproduced earlier, which refers to the erstwhile M/s. Shell Technology India Pvt. Ltd. and only in brackets it is stated that the said concern stands merged into the new concern, M/s. Shell India Markets Pvt. Ltd. But, the relevant question to be examined is as to which entity has present....