2017 (8) TMI 36 - HC - Income Tax

Validity of revision u/s 263 against non-existent entity - Held that - In the present case it is not in dispute that KPPL ceased to exist as a result of the order dated 8th October 2010 passed by this Court whereby its merger with Ventura stood approved. Ventura was later renamed as ARSPL. These facts were known to the AO in the course of the assessment proceedings. The statement of the Director of KPPL formed part of the assessment record. Consequently the issuance of the notice dated 23rd March 2016 by the PCIT under Section 263 of Act and consequential order dated 31st March 2016 were in respect of a non-existent entity and were clearly void ab initio as correctly held by the ITAT. This by itself was sufficient for the ITAT to set aside the impugned order dated 31st March 2016.

Summary

Issues:
- Validity of the order passed by the Principal Commissioner of Income Tax under Section 263 of the Income Tax Act
- Existence of the entity KPPL during the assessment proceedings and subsequent merger with Ventura
- Jurisdictional defect in framing assessment against a non-existing entity

Analysis:
1. The appeal before the High Court was regarding the order passed by the Income Tax Appellate Tribunal (ITAT) in relation to the Principal Commissioner of Income Tax's order under Section 263 of the Income Tax Act for the Assessment Year 2009-10.
2. The main issue raised by the Revenue was whether the ITAT was correct in setting aside the assessment order passed by the Assessing Officer under Section 147/143(3) of the Act and directing a re-examination of the assessment.
3. The facts revealed that KPPL, which later merged with Ventura and was renamed ARSPL, had received accommodation entries, leading to re-assessment proceedings. The AO accepted the return filed by KPPL, unaware of its merger with Ventura.
4. The Principal Commissioner of Income Tax issued a notice under Section 263 of the Act to KPPL, which by then did not legally exist due to the merger. The subsequent order passed by the PCIT was challenged by ARSPL before the ITAT.
5. The ITAT relied on the decision in Spice Infotainment Ltd. case and held that the notice and order by the PCIT were void ab initio as they were against a non-existent entity, thus setting them aside.
6. The High Court noted that the law, as per the Spice Infotainment Ltd. case, prohibits assessment against a non-existing entity, which was reiterated in the Rustagi Engineering Udyog case.
7. Since the entity KPPL had ceased to exist post-merger with Ventura, the notice and order by the PCIT were deemed void ab initio, leading the ITAT to rightfully set aside the order.
8. The High Court dismissed the appeal, stating that no substantial question of law arose from the ITAT's decision, thereby upholding the ITAT's ruling based on the legal precedent established in the Spice Infotainment Ltd. case.