2017 (9) TMI 387 - HC - Income Tax

Validity of assessment order in the name of the amalgamating company - assessment framed in the name of the non-existent company - procedural defect - successor-in-interest - Held that - The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity. See Spice Infotainment Ltd. v. CIT 2011 (8) TMI 544 - DELHI HIGH COURT In Spice Infotainment (supra) where it was held once it is found that the assessment is framed in the name of a non-existent entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292-B of the Act. - Decided in favour of the Assessee

Summary

Issues:
1. Validity of assessment order framed in the name of an amalgamating company.
2. Application of Section 170(2) of the Income Tax Act in the context of assessment orders.
3. Participation of the amalgamated company in assessment proceedings.
4. Interpretation of legal provisions regarding successor-in-interest and assessment jurisdiction.
5. Preclusion of objection based on participation in assessment proceedings.

Issue 1: Validity of assessment order framed in the name of an amalgamating company:
The High Court considered the appeal by the Revenue against the ITAT's order invalidating the assessment order for AY 2011-12, passed in the name of the amalgamating company. The Court examined whether this procedural error rendered the assessment order perverse. The Respondent-MSIL successfully argued that the assessment order was without jurisdiction as it was framed in the name of a non-existent entity, leading to the order's annulment.

Issue 2: Application of Section 170(2) of the Income Tax Act:
The Court analyzed the provisions of Section 170(2) in the context of the assessment order issue. It was highlighted that the assessment should have been made on the successor entity, the amalgamated company, as per the legal requirement. The Court referred to previous judgments to support the position that the assessment order must be correctly issued in the name of the successor-in-interest.

Issue 3: Participation of the amalgamated company in assessment proceedings:
The involvement of the amalgamated company, MSIL, in the assessment proceedings was noted. Despite participating fully in the process, MSIL successfully challenged the assessment order's validity based on the incorrect naming of the entity. The Court emphasized that participation alone does not cure the defect of an assessment order framed in the name of a non-existent entity.

Issue 4: Interpretation of legal provisions regarding successor-in-interest and assessment jurisdiction:
The legal representatives for both parties presented arguments regarding the interpretation of legal provisions concerning the successor-in-interest and assessment jurisdiction. The Court referred to relevant case law to establish the correct application of the law in such scenarios, emphasizing the necessity of proper assessment naming procedures.

Issue 5: Preclusion of objection based on participation in assessment proceedings:
The Court addressed the argument that participation in assessment proceedings precludes the successor-in-interest from objecting to the assessment order's validity. Relying on established legal principles, the Court rejected this notion, emphasizing that a procedural defect, such as incorrect naming, cannot be cured by mere participation and that there can be no estoppel in law.

In conclusion, the High Court dismissed the appeal, upholding the invalidation of the assessment order due to the naming discrepancy. The judgment reiterated the importance of correctly identifying the entity in assessment orders and clarified the legal position on successor-in-interest objections based on participation in proceedings.