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2023 (7) TMI 668 - AT - Income TaxRevision u/s 263 - Validity of Assessment Order u/s 143(3) as notice issued in the name of the amalgamating company - as per CIT AO has not conducted any inquiry regarding taxability of the capital gain and hence, the assessment is erroneous and also prejudicial to the interest of revenue - HELD THAT - As assessee has brought to the notice of the Assessing Officer the real fact that the assessment which the Assessing Officer finalized is of the existing company i.e. Vodafone Idea Limited. In our considered view, the fact that the Aditya Birla, erstwhile name, is non-exist at the time of passing of the order by the Assessing Officer and Assessing Officer also aware of the fact of merger, therefore, the fact in the present appeal are exactly similar to the facts in the case of Pr.CIT v. Maruti Suzuki India Limited 2019 (7) TMI 1449 - SUPREME COURT Thus we hold that the order passed u/s. 263 of the Act is equally bad in law considering the fact that we already held that the original assessment order passed u/s. 143(3) is bad in law and an order passed which is not proper and non-est, the same order cannot be the subject matter of the revision u/s. 263 of the Act. Respectfully following the decision of Westlife Development Ltd. 2016 (6) TMI 1208 - ITAT MUMBAI we are inclined to quash the revision order passed u/s. 263 of the Act and accordingly, ground raised by the assessee
Issues Involved:
1. Validity of the order passed under Section 263 of the Income-tax Act, 1961. 2. Whether the assessment order passed under Section 143(3) is erroneous and prejudicial to the interests of revenue. 3. The impact of the assessment order being passed on a non-existing entity. 4. Tax implications of the capital reduction and distribution of shares. Detailed Analysis: 1. Validity of the Order Passed Under Section 263: The appeal challenges the order dated 26 March 2022 passed under Section 263 of the Income-tax Act, 1961 by the Principal Commissioner of Income Tax (PCIT), Mumbai-5. The appellant contends that the order is without jurisdiction, illegal, bad in law, and void-ab-initio. The appellant argues that the conditions for invoking Section 263, i.e., the assessment order being erroneous and prejudicial to the interests of the revenue, are not satisfied. The appellant asserts that the Assessing Officer (AO) had conducted detailed inquiries during the assessment proceedings, and there was proper application of mind, thus the order cannot be deemed erroneous. 2. Erroneous and Prejudicial to the Interests of Revenue: The PCIT observed that the assessee company, in the guise of capital reduction, sold shares held in Indus Towers Ltd. to P5 Asia Holdings Investments (Mauritius) Ltd. for Rs. 25,41,30,00,000 without paying capital gains tax. The profit of Rs. 1380 crores was shown as Other Comprehensive Income but not credited to the profit and loss account. The PCIT held that the AO did not conduct any inquiry regarding the taxability of the capital gain, making the assessment order erroneous and prejudicial to the interests of revenue. The PCIT directed the AO to reframe the assessment order after conducting necessary inquiries and verification. 3. Assessment Order on a Non-Existing Entity: The appellant argued that the original assessment was completed in the name of the erstwhile Aditya Birla Telecom Limited, which had merged into Vodafone Idea Limited. The assessment order was thus passed on a non-existing entity, making it invalid and non-est. The appellant cited the Supreme Court decision in Pr.CIT v. Maruti Suzuki India Limited, asserting that an order passed on a non-existing entity is illegal and void. The Tribunal agreed with the appellant, noting that the AO was aware of the merger but still passed the order in the name of the non-existing entity. The Tribunal held that the original assessment order was void and non-est, and thus, the revision order under Section 263 was also bad in law. 4. Tax Implications of Capital Reduction and Distribution of Shares: The appellant contended that the distribution of shares pursuant to capital reduction does not give rise to capital gains in the hands of the company. The appellant relied on the Supreme Court ruling in CIT Vs. Madurai Mills Co. Ltd. and other judicial precedents to argue that such distribution is not considered a transfer under Section 2(47) of the Act. The Tribunal noted that the AO had not properly investigated the issue of capital gains tax implications on the distribution of shares. However, since the assessment order was already deemed invalid, the Tribunal did not delve into the merits of the tax implications. Conclusion: The Tribunal concluded that the original assessment order passed under Section 143(3) was null and void as it was passed on a non-existing entity. Consequently, the revision order under Section 263 was also invalid. The Tribunal quashed the revision order and allowed the appeal filed by the assessee. The other grounds raised by the assessee were kept open, and the appeal was partly allowed.
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