2021 (9) TMI 454 - AT - Income Tax

Assessment against non-existing entity - Amalagamation - notice in the name of amalgamating company - procedural irregularity or jurisdictional defect - curable defect u/s 292B or not - HELD THAT - Despite the fact that the DCIT/AO was informed of the amalgamating company having ceased to exist in consequence of the approved scheme of amalgamation by the Hon be High Court of Bombay the final assessment order and demand notice was issued in its name is against the legal principle that the amalgamating company (Honeywell Turbo (India) Private Limited) ceased to exist upon the approved scheme by the Hon ble High Court of Bombay. Regarding the participation in the proceedings as contended by the ld. DR in our opinion participation in the proceedings by the assessee in such circumstances cannot operate as an estoppels against law thus the final assessment as framed in the name of non-existing entity it does not remain a procedural irregularity of the nature which would be cured by invoking the provisions of Section 292B - framing of final assessment against a non-existent company goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect. - Decided in favour of assessee.

Summary

Issues Involved:
1. Issuance of final assessment order to a non-existing entity.
2. Validity of assessment orders and demand notices issued in the name of a dissolved entity.
3. Jurisdictional defects versus procedural irregularities under Section 292B of the Income Tax Act.

Detailed Analysis:

Issue 1: Issuance of Final Assessment Order to a Non-Existing Entity
The primary issue revolves around the legality of final assessment orders issued to a non-existing entity, Honeywell Turbo (India) Private Limited, which had merged with Honeywell Turbo Technologies (India) Private Limited.

- Assessment Year 2010-11 (ITA No. 443/PUN/2015):
The assessee argued that the final assessment order dated 27-02-2015 was issued to Honeywell Turbo (India) Private Limited, a non-existing entity post-merger. The Tribunal found that the assessee had informed the AO about the merger, yet the assessment order and demand notice were issued in the name of the dissolved entity. The Tribunal cited the Supreme Court's decision in Maruti Suzuki India Limited, which held that assessments in the name of a dissolved entity are null and void. Consequently, the Tribunal quashed the final assessment order dated 27-02-2015.

- Assessment Year 2011-12 (ITA Nos. 477/PUN/2016 and 557/PUN/2016):
Similar to the previous year, the Tribunal noted that despite the assessee informing the AO about the merger, the final assessment order and demand notice were issued in the name of the non-existing entity. The Tribunal rejected the Revenue's argument that the notice under Section 142(1) was issued in the correct name, emphasizing that the subsequent orders were still issued in the name of the dissolved entity. The Tribunal quashed the final assessment order dated 29-01-2016 and dismissed the Revenue's appeal as academic.

- Assessment Year 2012-13 (ITA No. 44/PUN/2017):
The Tribunal found the facts and circumstances similar to the previous years and applied the same reasoning to quash the final assessment order issued to the non-existing entity.

Issue 2: Validity of Assessment Orders and Demand Notices
The Tribunal consistently held that the final assessment orders and demand notices issued to Honeywell Turbo (India) Private Limited were invalid due to the entity's dissolution post-merger. The Tribunal emphasized that such orders are substantive illegalities, not procedural irregularities.

Issue 3: Jurisdictional Defects vs. Procedural Irregularities under Section 292B
The Revenue argued that the procedural irregularities could be cured under Section 292B of the Income Tax Act. However, the Tribunal, referencing the Supreme Court's decision in Maruti Suzuki India Limited, held that issuing assessment orders to a non-existing entity is a jurisdictional defect, not a procedural irregularity. Therefore, Section 292B could not be invoked to validate the defective orders.

Conclusion:
The Tribunal allowed the assessee's appeals for the assessment years 2010-11, 2011-12, and 2012-13, quashing the final assessment orders issued to the non-existing entity. The Revenue's appeal for the assessment year 2011-12 was dismissed as academic. The Tribunal's decisions underscore the importance of issuing assessment orders to the correct legal entity, emphasizing that jurisdictional defects cannot be cured under Section 292B.