2020 (7) TMI 712 - AT - Income Tax

Assessment on a non-existent entity - assessment in the name of the amalgamating company - Whether a curable defect as per Section 292B? - HELD THAT - The amalgamating company i.e. Genpact India was not in existence at the time of conducting assessment proceedings as well as on the date of passing Assessment Order. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Hence, the Assessment proceedings as well as the Assessment order itself are void ab initio. Therefore, assessment order is set aside. - Decided in favour of assessee.

Issues Involved:
1. Validity of assessment on a non-existent entity.
2. Applicability of Section 292B of the Income-tax Act, 1961.
3. Challenge to the validity of the order under Section 124 of the Act.
4. Taxation of consideration paid for buy-back of shares under Section 115QA of the Act.
5. Applicability of Section 115QA to buy-back under Section 391 of the Companies Act.
6. Treatment of the buy-back scheme as a colorable device.
7. Interpretation of Section 115QA in relation to buy-back under different provisions of the Companies Act.
8. Treatment of Genpact India as an assessee in default under Section 115QC of the Act.

Issue-wise Detailed Analysis:

1. Validity of Assessment on a Non-existent Entity:
The appellant argued that the assessment was framed on a non-existent entity, Genpact India, which had amalgamated with another company. The Tribunal noted that the Assessing Officer (AO) was aware of the amalgamation, as indicated in the assessment order. The Tribunal cited various judgments, including the Supreme Court's decision in Maruti Suzuki India Ltd., which held that assessment on a non-existent entity is void ab initio. Consequently, the Tribunal found the assessment order invalid.

2. Applicability of Section 292B of the Income-tax Act, 1961:
The Tribunal rejected the CIT(A)'s view that the defect in the assessment order could be cured under Section 292B, which provides for the rectification of procedural errors. The Tribunal held that framing an assessment on a non-existent entity is not a procedural irregularity but a fundamental flaw, rendering the assessment void ab initio.

3. Challenge to the Validity of the Order under Section 124 of the Act:
The CIT(A) had held that the appellant could not challenge the validity of the order under Section 124, which pertains to the jurisdiction of Assessing Officers. The Tribunal did not specifically address this issue, as it found the entire assessment order void due to being issued to a non-existent entity.

4. Taxation of Consideration Paid for Buy-back of Shares under Section 115QA of the Act:
The appellant contested the taxation of ?26,25,00,00,000 paid for the buy-back of shares under Section 115QA. The Tribunal did not delve into this issue, given its finding that the assessment order itself was void ab initio.

5. Applicability of Section 115QA to Buy-back under Section 391 of the Companies Act:
The appellant argued that Section 115QA applies only to buy-backs under Section 77A of the Companies Act, not Section 391. The Tribunal did not address this issue separately due to the invalidity of the assessment order.

6. Treatment of the Buy-back Scheme as a Colorable Device:
The CIT(A) had dismissed the appellant's argument that the buy-back scheme was not a colorable device. The Tribunal did not examine this issue further, as the assessment order was deemed void.

7. Interpretation of Section 115QA in Relation to Buy-back under Different Provisions of the Companies Act:
The appellant contended that Section 115QA, as it stood, applied only to buy-backs under Section 77A. The Tribunal did not provide a separate finding on this matter due to the overarching invalidity of the assessment order.

8. Treatment of Genpact India as an Assessee in Default under Section 115QC of the Act:
The CIT(A) had treated Genpact India as an assessee in default and raised a demand under Section 115QA. The Tribunal did not address this issue separately, given its conclusion that the assessment order was void ab initio.

Conclusion:
The Tribunal allowed the appeal, setting aside the assessment order as void ab initio due to being framed on a non-existent entity. Consequently, it did not provide separate findings on the other issues raised. The order was pronounced in the open court on 23rd July 2020.

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