2017 (12) TMI 1340 - AT - Income Tax

Assessment against non-existent entity - which entity has presented the appeal before the Tribunal? - Held that - Factually speaking, it could not be said that the appeal has been presented by a non-existent assessee, as it has been signed for and on behalf of the new entity, i.e. M/s. Shell India Markets Pvt. Ltd. Of course, the cause title has not been correctly worded as it refers to the old concern and it is only in the brackets that it is mentioned that the same stands merged into the new entity, i.e. M/s. Shell India Markets Pvt. Ltd. In our considered opinion, the said omission is only a technical defect and it cannot be construed that the appeal has been presented by a non-existent concern. The fact-situation in the case before the Chennai Bench of the Tribunal was different inasmuch as the appeal was filed by a non-existent concern, and for that reason, the Chennai Bench held that the appeal was not capable of survival. The facts in the instant case clearly show that a valid appeal has been presented by the correct assessee, and for that reason, the wrong mentioning in the cause title of the Appeal Memo is to be construed only as a mistake. In any case, such mistake has also been rectified by the assessee by filing a revised Form no. 36B, which is on record. In fact, the rectification done by the appellant is not a case of substitution of a new appellant by another, as was the case found by the Chennai Bench of the Tribunal. The instant is a case where the original appeal has been presented by the correct appellant, but with a defective nomenclature in the title which also stands subsequently rectified. As a consequence of our aforesaid discussion, even for the Assessment Year 2007-08, we hold that the assessment order dated 07.10.2011 (supra) passed in the name of M/s. Shell Technology India Pvt. Ltd. is a nullity inasmuch as it has been passed in the name of a non-existent concern as it stood merged with M/s. Shell India Markets Pvt. Ltd. w.e.f. 01.04.2008 following the scheme of merger having been approved by the Hon ble High Courts of Karnataka and Madras vide orders dated 22.02.2010 (supra) and 24.02.2010 (supra) respectively. Accordingly, the assessment order dated 07.10.2011 (supra) is hereby quashed.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO) in framing the assessment for a non-existent entity.
2. Validity of assessment orders passed in the name of a merged entity.
3. Procedural defects versus jurisdictional defects in assessment orders.
4. Impact of incorrect nomenclature in appeal filings.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO) in framing the assessment for a non-existent entity:
In both appeals, the primary issue was whether the AO had jurisdiction to frame assessments for M/s. Shell Technology India Pvt. Ltd., which had ceased to exist due to its merger with M/s. Shell India Markets Pvt. Ltd. effective from 01.04.2008. The Tribunal admitted the additional ground of appeal, noting that the assessment order was passed in the name of a non-existent entity, which is a point of law with facts available on record. The Tribunal referenced the judgments of the Hon'ble Supreme Court in National Thermal Power Co. Ltd. and Jute Corporation of India Ltd., emphasizing that an assessment order passed on a non-existent entity is void ab initio.

2. Validity of assessment orders passed in the name of a merged entity:
For the Assessment Year 2008-09, the Tribunal noted that the AO was informed about the merger through a communication dated 21.09.2010. Despite this, the AO passed the assessment order on 30.11.2012 in the name of the erstwhile entity. The Tribunal cited several judicial rulings, including the Hon'ble Bombay High Court's decision in Jitendra Chandralal Navlani & Anr. and the Hon'ble Delhi High Court's decision in Dimension Apparels (P.) Ltd., concluding that an assessment order passed in the name of a non-existent entity is invalid and quashed the assessment order for 2008-09.

3. Procedural defects versus jurisdictional defects in assessment orders:
The Revenue argued that the error was procedural, not jurisdictional. However, the Tribunal disagreed, referencing the Hon'ble Bombay High Court's ruling that such an error affects the AO's jurisdiction. The Hon'ble Delhi High Court in Dimension Apparels (P.) Ltd. and Spice Entertainment Ltd. also held that framing an assessment on a non-existent entity is a jurisdictional defect, not a procedural one. Consequently, the Tribunal rejected the Revenue's objection and quashed the assessment order for 2008-09.

4. Impact of incorrect nomenclature in appeal filings:
For the Assessment Year 2007-08, the AO mentioned both the old and new entity names in the assessment order. The Revenue contended that this was a procedural defect. However, the Tribunal, referencing the Hon'ble Delhi High Court's decision in Micra India (P.) Ltd., held that merely mentioning the new entity's name below the old one does not validate the assessment. The Tribunal observed that the AO's description indicated that the old entity was still considered in existence, thus invalidating the assessment order for 2007-08.

Regarding the appeal filing, the Tribunal distinguished the present case from the Chennai Bench's decision in M/s. Zenta Knowledge Services (P) Ltd., noting that the appeal was filed by the correct entity, M/s. Shell India Markets Pvt. Ltd., despite the defective nomenclature. The Tribunal concluded that the error was technical and did not affect the appeal's validity, which was subsequently rectified.

Conclusion:
The Tribunal quashed the assessment orders for both Assessment Years 2007-08 and 2008-09, ruling that they were passed in the name of a non-existent entity, M/s. Shell Technology India Pvt. Ltd., following its merger with M/s. Shell India Markets Pvt. Ltd. The Tribunal emphasized that such errors are jurisdictional defects, not procedural, and upheld the assessee's preliminary plea, obviating the need to examine other grounds of appeal. The appeals for both years were allowed.