TaxTMI 
TaxTMI 
2023 (5) TMI 824
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....sessment year 2014-15 was filed on 25.11.2014 declaring total income of Rs.1,13,02,89,902/- after claiming deduction u/s 10AA of the Income Tax Act, 1961 ('the Act'). The appellant company also reported international transactions entered with its AEs. On noticing the international transactions, the Assessing Officer referred the matter to the Transfer Pricing Officer ('TPO') for the purpose of benchmarking the international transactions. The TPO vide order dated 30.10.2017 suggested the TP adjustment of Rs.95,88,72,618/-. On receipt of the TPO's order, the Assessing Officer passed a draft assessment order dated 30.12.2017 making disallowance of the excess deduction of claimed u/s 10AA of the Act. On receipt of the draft assessment order, the appellant had not chosen to file objection before the DRP and the final assessment order dated 20.03.2018 was passed by the Assessing Officer after making disallowance the excess deduction claimed u/s 10AA amounting to Rs.8,92,33,721/-. 3. Being aggrieved by the final assessment order, an appeal was filed before the ld. CIT(A) contending inter alia that the assessment order passed is null and void, as the assessment was made on non-....
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....hallenged the very validity of the assessment order on the ground that the assessment order was passed in the name of non-existing entity placing reliance on the following judicial precedents :- (i) CIT vs. Micron Steels (P.) Ltd., 372 ITR 386 (Delhi). (ii) Spice Entertainment Ltd. v. CST, 12 ITR 134 (SC). (iii) PCIT vs. Maruti Suzuki India Ltd., 416 ITR 613 (Delhi). (iv) CIT vs. Dimension Apparels (P.) Ltd., 370 ITR 288. (v) PCIT vs. Maruti Suzuki India Ltd., 107 taxmann.com 375 (SC). (vi) Marshall Sons & Co. (India) Ltd. vs. ITO, 223 ITR 809 (SC). 7. However, the ld. CIT(A) dismissed this ground by holding that the notice u/s 143(2) was issued in the name of the amalgamating company much before its amalgamation came into effect. 8. Being aggrieved by the decision of the ld. CIT(A), the assessee company is before us in the Cross Objection. 9. The ld. Sr. Counsel submits that the factum of amalgamation was brought to notice of the Assessing Officer vide letter dated 15.12.2017 filed before the Assessing Officer on 26.12.2017 despite this fact, the Assessing Officer passed the assessment order in the name of amalgamating....
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.... ITR 613 (SC) after making a reference of its earlier decision in the case of CIT vs. Spice Infotainment Ltd. 12 ITR-OL 134 (SC) and Saraswati Industrial Syndicate Ltd. vs. CIT, 186 ITR 278 (SC) held as follows :- "33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment (supra)." 12. The ratio ....
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....order passed against non-existing company would be void. Such defect cannot be treated as procedural defect and mere participation of appellant would be of no effect as there is no estoppel against law. Such a defect cannot be cured by invoking provisions under section 292B. The Supreme Court had also taken note of decision in Spice Entertainment Ltd. (supra) was followed by Delhi high court in matters, viz.CIT v. Dimension Apparels (P.) Ltd. [2014] 52 taxmann.com 356/[2015] 370 ITR 288, CIT v. Micron Steels (P.) Ltd. [2015] 59 taxmann.com 470/233 Taxman 120/372 ITR 386 (Mag.); CIT v. Micra India (P.) Ltd. [2015] 57 taxmann.com 163/231 Taxman 809 and in CIT v. Intel Technology India Ltd. [2016] 380 UTE 272 Karnataka high court has held, if a statutory notice is issued in the name of non-existing entity, entire assessment would be nullity in the eye of law. It has also been so held by Delhi high court in the case of Pr. CIT v. Nokia Solutions & Network India (P.) Ltd. [2018] 90 taxmann.com 369/253 Taxman 409/402 ITR 21 23. The Supreme Court in Spice Infotainment Ltd. v. CIT [IT Appeal No. 475 of 2011, dated 3-8-2011] found that there is no reason to interfere with the impug....
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....Court in the case of Alok Knit Exports Ltd. (supra) are as under :- "6. The Apex Court in its recent judgment on this subject in Pr. CIT v. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375/265 Taxman 515/416 ITR 613, considered the judgment of Sky Light Hospitality LLP (supra) of the Apex Court and said that the Apex Court has expressly mentioned that in the peculiar facts of that case wrong name given in the notice was merely a clerical error. The Apex Court in Maruti Suzuki India Ltd. (supra), has also observed that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under : In the present case, despite the fact that the Assessing Officer was informed of the amalgamating company having ceased to exist as a result of the approved....
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....e para 33 of the said decision that the facts in the cases of Maruti Suzuki India Ltd., Spice Enfotainment Ltd. referred supra were distinguishable. What weighed with Hon'ble Supreme Court in arriving at the conclusion reached is that the assessee had deliberately mislead the Department by not informing the Assessing Officer as well as the CIT(A) the factum of amalgamation. Thus, it is clear that the decision in the Mahagun Realtors (P.) Ltd. (supra) was rendered in the peculiar facts of that case. The Hon'ble Supreme Court had not expressly overruled its earlier decision, rendered in the case of Maruti Suzuki India Ltd. (supra) (A decision rendered by Bench of three Judges). The Hon'ble Supreme Court had not laid down a proposition that even if the factum of amalgamation was brought to the notice of the AO, still an assessment can be made in the name of the amalgamating company. In our considered opinion, this decision is not an authority of proposition, that an assessment can be made in the name of non-existing entity, even though the Assessing Officer was put on notice of factum of amalgamation. 17. In the present case, it is undisputed position that the factum of the amalgam....