2018 (7) TMI 823

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....to be quashed." 3. Ld. counsel for the assessee referring to the draft assessment order dated 10.05.2015 submitted that the name of the assessee has been mentioned as M/s Vertex Customer Services India Pvt. Ltd.. Referring to the order of the DRP dated 21.09.2015, he submitted that the name of the assessee has been mentioned as under :- "M/s Vertex Customer Management India Limited (Formerly Vertex Customer Services Private Limited) (Now Merged with Vertex Customer Management India Private Limited)." 4. Referring to the final assessment order passed by the Assessing Officer subsequent to the order of the DRP vide order u/s 143(3)/144 dated 23.10.2015, he submitted that the Assessing Officer has passed the order in the name of M/s Vertex Customer Services India Pvt. Ltd.. Referring to the sequence of events, ld. counsel for the assessee drew the attention of the Bench to the following dates :- Sequence of Events S. No Date Particulars Document Reference 1 26 March 2014 High Court Order in relation to amalgamation was passed (effective 1 April 2011) wherein 'Vertex Consumer Services India Pvt Ltd' ('original entity') was merge....

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....ld that the order of assessment for assessment year 2007-08 dated 28.03.2013 is invalid and accordingly it was cancelled as the same was passed after the appointed date of 01.04.2007 on a non-existent entity. Since the Assessing Officer in the instant case has passed an order on a non-existent company, therefore, the assessment order has to be quashed. 6. Referring to the decision of the Hon'ble Delhi High Court in the case of Pr.CIT vs. Maruti Suzuki India Ltd. vide IT Appeal No.65 of 2017 order dated 07.09.2017, he drew the attention of the Bench to the question framed and admitted by the Hon'ble High Court which reads as under :- "Did the ITAT misapply the provisions of Section 170(2) of the Income tax Act in the circumstances of the case, while concluding that the assessment order was not tenable for having been framed in the name of the non-existence company." 7. Referring to the said order, he submitted that the Hon'ble High Court following the decision in the case of Spice Entertainment Ltd. (supra), decision of the Hon'ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. vs. CIT reported in 186 ITR 278 and various other decisions has d....

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....r of the TPO that the TPO vide order dated 21.01.2015 has passed the order in the name of the assessee M/s Vertex Customer Services Private Limited. Further from page 2 to 26 of the Paper Book, we find the assessee vide letter dated 23.02.2015 has submitted before the Assessing Officer informing the fact of amalgamation. We find from page 148 of the Paper Book that the draft assessment order was passed on 10.03.2015 in the name of the original entity namely M/s Vertex Customer Services Private Limited. We find from page 38 of the appeal set that the assessee in his objection before the DRP has filed the same in the name of the merged/new entity i.e. Vertex Customer Management India Private Limited. We find the DRP vide order dated 21.09.2015 had passed the order in the name of M/s Vertex Customer Management India Private Limited i.e. new entity. However, we find from the final assessment order dated 23.10.2015 that the order has been passed in the name of M/s Vertex Customer Services India Private Limited. The above sequence of events shows that despite the Assessing Officer being intimated/informed above fact of amalgamation still the Assessing Officer chooses to pass the assessme....

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....be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not be made on a invalid return. In the process, the Court observed as under:- "Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a return would not be treated as invalid, if the same "in substance and effect is in conformity with or according to the intent and purpose of this Act". Insofar as the return under referenc....

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....ed by M/s Spice on the day when it was in existence it would be permissible to carry out the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice under Section 143 (2) of the Act. In these circumstances, it would be incumbent upon the AO to first substitute the name of the appellant in place of M/s Spice and then issue notice to the appellant. However, such a course of action can be taken by the AO only if it is still permissible as per law and has not become time barred." 12. We find the SLP filed by the Revenue in the case of Spice Entertainment Ltd. (supra) has been dismissed by the Hon'ble Supreme Court vide Civil Appeal No.285 of 2014 order dated 02.11.2017. 13. We find the Hon'ble Delhi High Court in the case of CIT vs. Dimension Apparels (P.) Ltd. reported in 370 ITR 288 following its earlier decision in the case of Spice Entertainment Ltd. (supra) has observed as under :- "19. The question of whether an assessment upon an amalgamated company is a mistake within the meaning of Section 292B was raised and answered by the Delhi High Court in Spice Entertainment Ltd. (supra). In that case, the Tribu....