2015 (9) TMI 282 - AT - Income Tax

Assessment order u/s 143(3) passed in the name of non-existent company - validity of assessment - Held that - Undisputedly and admittedly, the return was filed by STIPL amalgamating company on 30.11.2006. The AO issued notices u/s 143(2) and 142(1) of the Act in the name of amalgamating company. Subsequently, letter dated 3.10.2008 was filed before the AO during the course of assessment proceedings informing the scheme of amalgamating sanctioned by the Hon ble High Court vide order dated 22.8.2008 and the amalgamating company i.e. STIPL ceased to exist in pursuance to filing of such order before the Registrar of Companies w.e.f. 1.4.2008. Letters dated 17.11.2009 and 24.11.09 were also filed before the AO duly disclosing the factum of amalgamation and subsequent dissolution of the amalgamating company STIPL with the amalgamated company SIEPL. However, the AO passed impugned assessment order on 30.11.09 u/s 143(3) of the Act in the name of non-existent amalgamating company viz. STIPL. The facts of the present case are quite similar to the facts and circumstances in the Spice Infotainment (2011 (8) TMI 544 - DELHI HIGH COURT) wherein their lordships held that the framing of assessment against non-existent entity/person goes to the root of the matter which is not a procedural irregularity curable u/s 292B of the Act and or any other provision but it is a jurisdictional defect because there cannot be framing of any assessment against a dead person or entity which is non-existent on the date of passing or framing assessment order. Thus the assessment order dated 30.11.09 passed u/s 143(3) in the present case in the name of non-existent amalgamating company STIPL having jurisdictional defect is not sustainable and we quash the same. - Decided in favour of assessee.

Summary

Issues Involved:
1. Jurisdiction and validity of the assessment order framed under Section 143(3) of the Income Tax Act, 1961.
2. Disallowance of Rs. 35,31,000 in respect of provision for warranty made for domestic sales.

Issue-wise Detailed Analysis:

1. Jurisdiction and Validity of the Assessment Order:

The primary issue raised by the assessee was that the assessment order framed by the Assessing Officer (AO) under Section 143(3) of the Income Tax Act, 1961, was without jurisdiction, illegal, and void ab initio because it was issued in the name of Samsung Telecommunications India Pvt. Ltd. (STIPL), which had amalgamated with Samsung India Electronics Pvt. Ltd. (SIEPL) and ceased to exist as of 01.10.2008. The Commissioner of Income Tax (Appeals) [CIT(A)] dismissed this contention, stating that the AO had completed the assessment based on the return of income filed by STIPL, and there was no indication that the Hon'ble Delhi High Court had allowed any existing liabilities and obligations of STIPL to lapse during the amalgamation. The CIT(A) held that the amalgamation did not absolve the obligations under the Income Tax Act.

However, the Tribunal, referring to the decision of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. vs. CIT, held that framing an assessment against a non-existent entity/person is a jurisdictional defect and not merely a procedural irregularity. The Tribunal noted that the return was filed by STIPL when it was in existence, but the AO issued the assessment order after the company ceased to exist due to amalgamation. The Tribunal quashed the assessment order dated 30.11.2009, declaring it void ab initio due to the jurisdictional defect of being issued in the name of a non-existent entity.

2. Disallowance of Rs. 35,31,000 in Respect of Provision for Warranty:

The second issue involved the disallowance of Rs. 35,31,000 made by the AO in respect of the provision for warranty made for domestic sales. The CIT(A) confirmed this disallowance on the grounds that the assessee failed to establish that the provision was based on scientific data or actuarial study. The CIT(A) further noted that there was no basis for applying the data of the international group company for earlier years to compute the provision for warranty for the relevant previous year.

The Tribunal, however, did not adjudicate on this issue as it quashed the original assessment order on jurisdictional grounds. Consequently, the grounds related to the merits of the disallowance of the provision for warranty became moot and were dismissed.

Conclusion:

The Tribunal allowed the appeal of the assessee on legal grounds, quashing the assessment order dated 30.11.2009 framed under Section 143(3) of the Act due to the jurisdictional defect of being issued in the name of a non-existent amalgamating company. Consequently, all subsequent proceedings, including the order of the CIT(A), became unsustainable. The Tribunal dismissed the appeal of the revenue as infructuous.

Order Pronounced:

The order was pronounced in the open court on 26.08.2015.