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2021 (5) TMI 622
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....visions of section 292B cannot rescue the department. Therefore, the order is unsustainable and accordingly the same is quashed." 2. Though these appeals came up first before this Court on 4th February, 2019, but notice thereof was ordered to be issued only on 14th November, 2019. The counsels were heard on 1st February, 2021 and 10th February, 2021, on, whether these appeals raise substantial questions of law and are to be admitted for hearing. 3. The ITAT, in the impugned order, has recorded the facts of ITA No.554/Del/2015 for the Assessment Year 2010-11 before it and has further recorded that the facts of ITA No.836/Del/2014 for the Assessment Year 2009-10 are identical. The said facts, as recorded, are (i) that the Respondent-Assessee company is primarily engaged in the business of importing, buying, selling and distributing wide range of mobile phones in India and of providing related post sale support services; (ii) on the Respondent-Assessee filing the return of income for the assessment years 2009-10 and 2010-11 (subject assessment years), since the Respondent-Assessee had undertaken international transaction with its Associated Enterprises (AEs), t....
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....ations (India) Pvt. Ltd.; (viii) the Respondent-Assessee, in response to the department's allegation that no intimation about merger was made, wrote a letter dated 30th April, 2014; (ix) the DRP, in its order dated 21st October, 2014 mentioned the name of the Respondent-Assessee as "Sony Mobile Communications (India) Private Limited (now merged with Sony India Private Ltd)".; (x) however the AO still passed the final assessment order under Section 143(3)/144C in the name of Sony Ericsson Mobile Communications (India) Pvt. Ltd.; (xi) thus, the final order was framed on a non-existent company and the question for adjudication was, whether the said defect was curable or made the final assessment order void; (x) in (a) Pr. Commissioner of Income Tax-6 New Delhi Vs. Maruti Suzuki India Limited (Successor of Suzuki Powetrain India Limited) (2017) 397 ITR 681 (Delhi), (b) Spice Entertainment Limited Vs. Commissioner of Income Tax (2012) 247 CTR (Delhi) 500 (Civil Appeal 285/2014 whereagainst was dismissed on 2nd November, 2017), (c) Commissioner of Income Tax Vs. Dimension Apparels (P) Ltd. (2015) 370 ITR 288 (Civil Appeal 431....
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....able. Additionally, it was informed that in Maruti Suzuki India Ltd. (supra), the appeal before this Court had been filed in the name of the amalgamated company but in the present case, the Respondent-Assessee also filed ITA No. 638/Del/2015 against the earlier order dated 27th February, 2015 of the ITAT, in the old name in which return of income was filed, notwithstanding the subsequent change in name and amalgamation. Attention was also invited to Section 144C(10) of the Act, to contend that the order of the DRP is binding on the AO; the DRP, in the present case passed the order in the old name in which return was filed, though mentioning that the Respondent-Assessee had since been amalgamated in another company and thus the AO had no option but to pass the assessment order in the same name in which the DRP had passed the order, albeit without mentioning the fact of amalgamation of the Respondent-Assessee. It was further pointed out, that the identification of the Respondent-Assessee by the appellant department, is by the Permanent Account Number (PAN) and inexplicably the PAN of the Respondent-Assessee which had filed the return of income and the PAN of the amalgamated company i....
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....iated/pending against the assessee when alive, and that issuance of a notice upon a dead person does not come under the ambit of mistake, defect or omission within the meaning of Section 292B of the Act. Applying the said judgment also, it appears that the jurisdictional notice in the present case having been issued in the correct name, merely because the assessment order did not mention the subsequently changed name, is not fatal. 10. We may also mention, that Section 23 titled "Registration of change of name and effect thereof" of Companies Act, 1956 (1956 Act), in subsection (3) thereof provided that the change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. In the Companies Act, 2013 (2013 Act), Section 13 titled "Alteration of memorandum", in sub-section (2) only provides that any change in the name of a company shall be subject to the provisions of sub-sections (2) and (3) of Section 4, and is not found by us, just now, to....
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.... was still in force. 16. We also do not have before us, the communications dated 6^th December, 2013 and 17th February, 2014 by which the Respondent-Assessee is stated to have informed the AO of the change of name and are thus unable to gauge whether they were in relation to proceedings for assessment of the relevant year or in general. 17. We are therefore of the view that the second question of law urged by the counsel for the Appellant/Revenue, arises and requires to be considered in the facts of the present case. 18. However as far as the first substantial question of law urged by the counsel for the Appellant-Revenue is concerned, we find that this Court, vide judgment dated 28th January, 2016 in ITA No.638/2015 and ITA No.614/2015, while setting aside the order dated 27th February, 2015 of ITAT, directed the ITAT to decide the appeal "afresh in light of the directions issued and to examine all the grounds including the one regarding the existence of an international transactions involving AMP expenses". The aforesaid direction cannot be said to be of limited remand and was of open remand and thus we are of the opinion that the ITAT was entitled to allow the additiona....
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....2012), had merged with M/s Sony India Pvt. Ltd. w.e.f. 1st April, 2013, after the High Court approved the scheme of amalgamation on 23rd July, 2013. The Respondent had sent intimation to the Department informing it of the amalgamation of M/s Sony Mobile Communications (India) Pvt. Ltd. with Sony India Pvt. Ltd. The ITAT observed that the DRP in its order dated 21st October, 2014, mentioned the name of the Assessee as "M/s Sony Mobile Communications (India) Pvt. Ltd. (now merged with Sony India Pvt. Ltd)". Nevertheless, the Assessing Officer (AO) passed the final assessment order under Section 143(3) of the Act dated 22nd December, 2014, and framed the final assessment under 143(3)/144C, in the name of "M/s Sony Mobile Communications (India) Pvt. Ltd". The final order was therefore framed on a non-existent company. In these circumstances, the ITAT delved into the question of whether such framing of the final order passed by the Assessing Officer (AO) was a curable defect or a void order. The ITAT, placing reliance upon: (i) the judgment of this court in Spice Entertainment Limited v. CIT, 2012 (280) ELT 43 (Del.) :MANU/DE/3382/2011; Also referred to as Spice Enfotainment v.....
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....h have been framed in the name of the entity which stood amalgamated under the approved scheme of amalgamation. The Apex Court has dealt with several judgments on this aspect and also considered the earlier judgment of this Court in Spice Entertainment Limited (supra). Besides, the Supreme Court also considered the contention of the Revenue therein that a contrary position had been taken by this Court in Skylight Hospitality LLP Vs. ACIT, (2018) 405 ITR 296, but negated the same, holding that there was no conflict between the decisions in Spice Entertainment (supra) on the one hand and Skylight Hospitality LLP (supra) on the other hand. 25. In Maruti Suzuki India Limited (supra), the notice under Section 143(2), under which jurisdiction was assumed by the Assessing Officer (AO), was undoubtedly issued to a non-existent company. However, as pointed out by the counsel of the Respondent-Assessee, the situation was no different in the case of Spice Entertainment (supra). Therein, the factual situation was as follows: Spice Corp. Ltd. was the amalgamating company. It's filed its return of income on 30th October, 2002 declaring nil income. Subsequently vide order dated 11th April,....
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....fact of amalgamation of Sony Mobile Communications (India) Pvt. Ltd. with Sony India Pvt. Ltd. Further, on 17th February, 2014, another letter was sent to the Department where the facts of the amalgamation were mentioned. Despite that, the draft assessment order was issued by the AO in the name of the non-existent amalgamating company. Furthermore, on 30th April, 2014, the Respondent-Assessee sent another letter to the department in response to the allegation of the department that no intimation about the amalgamation was made. Yet, the DRP passed its order dated 21st October, 2014 in the name of "Sony Mobile Communications (India) Pvt. Ltd. (now merged with Sony India Pvt. Ltd)". In this factual background, since the Respondent-Assessee had repeatedly intimated the department of the factum of amalgamation, the final assessment order made on a non-existent entity is a nullity in the eyes of law, and therefore void. The intimation of the amalgamation, as noted by the ITAT in the impugned order, was not assailed by the Revenue in their Memorandum of Appeal. 28. The position in law, with respect to the effect of an assessment order in the name of a non-existent company, is now well....