2017 (5) TMI 1663 - AT - Income Tax

Assessment against non-existent amalgamating company - Assessment against company ceased to exist and non-existent - scheme of amalgamation conceived - jurisdictional defect - procedural irregularity curable u/s 292B - HELD THAT - No hesitation in holding that the framing of assessment against a non- existing entity/person goes to the root of the matter and is a jurisdictional defect as there cannot be any assessment against a dead person . Accordingly, the impugned assessment is bad in law and is liable to be quashed being void ab initio. The facts of the present case are quite similar to the facts of the case in Spice Entertainment (2011 (8) TMI 544 - DELHI HIGH COURT), wherein as held that framing of assessment against non-existent entity/person goes to the root of the validity of the assessment which is not a procedural irregularity curable u/s 292B or under any other provision of the Act but it is a jurisdictional defect because there cannot be framing of any assessment order against a dead person or entity which is non-existent on the date of framing/passing assessment order. Thus hold that the assessment in the name of nonexistent amalgamating company having jurisdictional defect is not sustainable and therefore, we quash the same. - Decided in favour of assessee.

Issues Involved:
1. Validity of assessment order passed on a non-existent entity.
2. Transfer pricing adjustments.
3. Tax treatment of waived secured loan.
4. Deduction under Section 10A of the Income Tax Act.
5. Allowance of provisions utilized/released.
6. Tax credit and interest calculations.
7. Initiation of penalty proceedings.

Detailed Analysis:

1. Validity of Assessment Order Passed on a Non-Existent Entity:
The primary issue was whether the assessment order dated 28/10/2010 was valid, given it was passed on a non-existent entity, M/s Nokia Siemens Network India Private Limited, which had merged with Nokia Siemens Network Private Limited effective from 01/04/2008. The ITAT noted that the fact of amalgamation was within the knowledge of the revenue authorities, as evidenced by various communications from the assessee between 02/07/2009 and 17/07/2009. The ITAT relied on the judgment of the Hon'ble Delhi High Court in the case of Spice Entertainment Ltd., which held that framing of assessment against a non-existent entity is a jurisdictional defect and not a procedural irregularity curable under Section 292B of the Act. Therefore, the assessment was quashed as being void ab initio.

2. Transfer Pricing Adjustments:
The assessee contested the transfer pricing adjustment of INR 140,810,625 related to the provision of software services to its associated enterprise. The grounds included rejection of the economic analysis in the documentation filed by the assessee, changes in filters applied for selecting comparable companies, use of single-year financial data instead of multiple-year data, and selection/rejection of certain comparable companies. The ITAT did not delve into these merits due to the quashing of the assessment order on jurisdictional grounds.

3. Tax Treatment of Waived Secured Loan:
The AO had treated the capital receipt of ?10,84,21,198, being the secured loan waived off, as taxable under Section 41(1)(a) of the Act. The assessee argued that the waiver was settled as per the provisions of Rule 127A of the West Bengal Sales Tax Rules, 1995, and thus did not amount to remission of trading liability. This issue was rendered academic due to the quashing of the assessment order.

4. Deduction Under Section 10A of the Income Tax Act:
The AO reduced data communication charges incurred in foreign currency from the export turnover while computing the deduction under Section 10A. The assessee argued that these charges were not part of the consideration for export of computer software and should not be deducted from the total turnover. This issue also became academic due to the quashing of the assessment order.

5. Allowance of Provisions Utilized/Released:
The assessee contended that provisions utilized/released during AY 2006-07, which were disallowed in earlier assessment years, should be allowed to avoid double taxation. This issue was not addressed due to the quashing of the assessment order.

6. Tax Credit and Interest Calculations:
The assessee raised issues regarding the limitation of tax credit for TDS, and the levy of interest under Sections 234B, 234C, and 234D. The ITAT did not address these issues due to the primary issue of the invalid assessment order.

7. Initiation of Penalty Proceedings:
The assessee contested the initiation of penalty proceedings under Section 271(1)(c) of the Act. This issue was also rendered moot due to the quashing of the assessment order.

Conclusion:
The ITAT quashed the assessment order as void ab initio due to the jurisdictional defect of being passed on a non-existent entity. Consequently, all other grounds of appeal were rendered academic and infructuous. The appeal of the assessee was allowed.

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