9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (2) TMI 1893 - AT - Income TaxLegality of the order being passed by AO on a non-existing entity - Cairn India Ltd is an amalgamated company, which has seized to exist in the eyes of law pursuant to amalgamation with Vedanta Ltd.- HELD THAT - Assessment on a company, which has been dissolved/amalgamated u/s 391 and 394 of the Companies Act 1956 is invalid and further held that framing assessment on a non-existing entity is a jurisdictional defect which cannot be cured u/s 292B of the Act. See DIMENSION APPARELS PVT. LTD. 2014 (11) TMI 181 - DELHI HIGH COURT We have no hesitation in holding that the assessment order and the order of the TPO are non est. Since the foundation has been removed, the super structure must fall. See MARKETING SERVIEING PVT. LTD. 2009 (9) TMI 917 - DELHI HIGH COURT - Decided in favour of assessee.
Issues Involved:
1. Legality of the order passed by the Assessing Officer on a non-existing entity. 2. Validity of the assessment order framed in the name of an amalgamated company. Issue-wise Detailed Analysis: 1. Legality of the order passed by the Assessing Officer on a non-existing entity: The assessee challenged the legality of the order passed by the Assessing Officer (AO) on a non-existing entity, asserting it was illegal and void ab initio. The assessment order was framed in the name of Vedanta Ltd, formerly known as Cairn India Ltd. However, Cairn India Ltd had ceased to exist due to its amalgamation with Vedanta Ltd. The Tribunal noted that the return of income was filed in the name of Cairn India Ltd on 30.11.2014, and the amalgamation scheme was approved on 23.03.2017, effective from 01.04.2016. The scheme of arrangement and amalgamation was intimated to the Transfer Pricing Officer (TPO) during the assessment proceedings on 25.04.2017. 2. Validity of the assessment order framed in the name of an amalgamated company: The Tribunal examined the objection raised by the assessee before the Dispute Resolution Panel (DRP), which stated that the TPO's order was void ab initio as it was passed on a non-existing entity, Cairn India Ltd. The DRP directed the TPO to rectify the order by incorporating the correct name and PAN of the assessed entity. However, the Tribunal found no force in the Department's contention that the mistake was corrected by the DRP and should not draw any adverse inference. The Tribunal referred to the case of Spice Entertainment, where the Hon'ble High Court of Delhi held that an assessment on a non-existing entity is void ab initio and cannot be cured by Section 292B of the Income-tax Act. The High Court emphasized that once a company is dissolved due to amalgamation, it ceases to exist, and any assessment order passed in its name is invalid. This principle was reiterated in the cases of Dimension Apparels Pvt. Ltd and Maruti Suzuki India Ltd, where the High Court held that framing an assessment on a dissolved/amalgamated entity is a jurisdictional defect that cannot be cured under Section 292B. The Tribunal concluded that the assessment order and the TPO's order were non est (non-existent) as they were passed in the name of a non-existing entity. Consequently, the Tribunal allowed the assessee's appeal on this legal principle and did not find it necessary to delve into the merits of the case. Judgment: The appeal of the assessee in ITA No. 7684/DEL/2018 was allowed, and the stay petition became otiose. The order was pronounced in the open court on 04.02.2019.
|
