2021 (5) TMI 622 - HC - Income Tax

Assessment of non-existent company - Merger of the company - scope of section 292B - Revenue argued that, till the issuance of notice under Section 143(2) of the Act, the name of the assessee had not changed and the notice was issued in the correct name and the error, even if any in the name of the Respondent-Assessee in the assessment order, is an error which is within the jurisdiction of the AO and which is correctable. HELD THAT - Difference of opinion between the two judges. Since the difference of opinion here, is on whether a substantial question of law arises, we are of the view that as per the said tradition, the question of law has to be framed and appeal admitted. Further, since the date of hearing, the roster of this Court has changed. Subject to orders of Hon ble the Chief Justice, list before the roster Bench on 27th July, 2021.

Issues Involved:
1. Whether the ITAT erred in allowing the additional ground to be urged by the Respondent-Assessee.
2. Whether the assessment order passed under Section 143(3) read with Section 144C of the Act is void ab initio as the assessment was undertaken in the name of a non-existent entity.

Issue-Wise Detailed Analysis:

1. Allowing the Additional Ground by ITAT:
The Appellant-Revenue contended that the ITAT exceeded its jurisdiction by permitting the Respondent-Assessee to raise an additional ground of appeal, arguing that the remand by the High Court was limited in scope. The court, however, found that the remand was an open remand and not limited, thus empowering the ITAT to allow the additional ground. The court noted that the additional ground was purely legal and arose from facts already on record, making it necessary to consider for the correct assessment of tax liability. Consequently, the first substantial question of law did not arise for consideration.

2. Validity of Assessment Order on Non-Existent Entity:
The ITAT held that the assessment orders were void as they were framed in the name of a non-existent company, following its merger. The Appellant-Revenue argued that the facts of the present case were different from the precedent set in Maruti Suzuki India Ltd., contending that the notice under Section 143(2) was issued in the correct name before the merger. The court, however, found the differences in facts to be material and requiring consideration. The court highlighted that the jurisdictional notice must be issued in the correct name and that procedural defects could not be cured under Section 292B of the Income Tax Act. The court referenced multiple judgments, including Maruti Suzuki India Ltd., Spice Entertainment Ltd., and others, which held that assessments made on non-existent entities are nullities and not mere procedural irregularities.

Separate Judgments:
One judge disagreed with the conclusions of the other, specifically on the second issue. The dissenting opinion held that the assessment order in the name of a non-existent entity was void, referencing the Supreme Court's decision in Maruti Suzuki India Ltd. The dissent emphasized that the intimation of the merger was repeatedly communicated to the department, and the assessment order's issuance in the old name was not a mere procedural irregularity but a jurisdictional defect. The dissent also stressed the importance of consistency and certainty in tax litigation.

Conclusion:
The court concluded that the first substantial question of law did not arise, as the ITAT was within its jurisdiction to allow the additional ground. However, the second substantial question of law required consideration due to material differences in facts from the Maruti Suzuki India Ltd. case. The case was listed for further proceedings, including framing the question of law and hearing.

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