2019 (7) TMI 1943 - AT - Income Tax

Assessment against a non-existing entity - Amalgamation scheme Conceived - HELD THAT - As 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. It has been held that 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. Hon'ble Supreme Court Maruti Suzuki India Limited 2019 (7) TMI 1449 - SUPREME COURT also observed that participation in the proceedings by the assessee in the circumstances cannot operate as an estoppel against law. It was also held that this position holds the field in view of their judgment in the case of Spice Enotainment delivered on 02.11.2017. In the case on hand it is undoubtedly the assessment was made by the Assessing Officer on SIPSPL the amalgamating company which was amalgamated with STSPL w.e.f 01.10.2011 and accordingly ceased to exist thereafter. Therefore, when the assessment was made on an non existing entity the said assessment is void ab-initio and nullity in the eye of law. Assessment framed against a non-existing entity goes to the root of the matter and it is not a procedural irregularity but a jurisdictional defect and there cannot be any assessment against a non-existing entity or a dead person. Therefore, the decision of the Hon'ble Supreme Court in the case of Pr.CIT v. Maruti Suzuki India Limited (supra) squarely applies to the facts of the assessee s case. Respectfully following the decision of the Hon'ble Supreme Court, we hold that the assessment made by the Assessing Officer in the name of the amalgamating company i.e. SIPSPL dated 24.01.2014 u/s. 143(3) r.w.s. 144C(13) of the Act for the A.Y.2009-10 is void ab-initio and bad in law. Hence the assessment order is a nullity in the eye of law and the same is quashed. The additional ground raised by the assessee is allowed.

Summary

Issues Involved:
1. Validity of the assessment order passed by the Assessing Officer after the amalgamation of the assessee company.
2. Jurisdictional defect due to assessment on a non-existent entity.
3. Applicability of Section 292B of the Income Tax Act.
4. Impact of participation by the amalgamated company in assessment proceedings.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order Post-Amalgamation:
The assessee company, Siemens Information Processing Services Pvt. Ltd. (SIPSPL), was amalgamated with Siemens Technology and Services Pvt. Ltd. (STSPL) effective from 01.10.2011, as per the order of the Hon'ble Bombay High Court dated 26.08.2011. Despite being informed about the amalgamation, the Assessing Officer issued an assessment order dated 24.01.2014 in the name of the non-existent entity, SIPSPL. The Tribunal admitted the additional ground challenging the validity of the assessment order, citing that it is a purely legal ground affecting the jurisdiction and validity of the assessment order.

2. Jurisdictional Defect Due to Assessment on a Non-Existent Entity:
The Tribunal noted that the assessment was made on SIPSPL, which ceased to exist post-amalgamation with STSPL. The Tribunal relied on various judicial precedents, including the Hon'ble Supreme Court’s decision in the case of Maruti Suzuki India Limited, which held that an assessment made on a non-existent entity is void ab initio and a jurisdictional defect. The Tribunal quashed the assessment order, stating that it is a nullity in the eyes of law.

3. Applicability of Section 292B of the Income Tax Act:
The Department argued that the error in the name was a typographical error and should be considered a procedural defect under Section 292B of the Act. However, the Tribunal, following the Hon'ble Supreme Court's ruling in Maruti Suzuki India Limited, held that the framing of an assessment against a non-existent entity is a substantive illegality and not a procedural defect. Therefore, Section 292B could not cure the jurisdictional defect.

4. Impact of Participation by the Amalgamated Company in Assessment Proceedings:
The Tribunal observed that participation by the amalgamated company (STSPL) in the assessment proceedings does not cure the jurisdictional defect. The Tribunal emphasized that there can be no estoppel against law, and participation in the proceedings by the amalgamated company does not validate an assessment order passed in the name of a non-existent entity. This position was reinforced by the Hon'ble Supreme Court in the Maruti Suzuki India Limited case.

Conclusion:
The Tribunal quashed the assessment orders for both A.Y. 2009-10 and A.Y. 2010-11, declaring them void ab initio due to being issued in the name of a non-existent entity post-amalgamation. Consequently, the Revenue's appeals for both assessment years were dismissed as infructuous. The Tribunal’s decision aligns with the legal principle that assessments made on non-existent entities are jurisdictionally defective and cannot be cured by procedural provisions like Section 292B.