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TMI Blog2018 (2) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... w and void ab initio as the same have been passed on a non-existent entity, namely Genpact Infrastructure (Bhopal) Pvt. Ltd. The brief facts giving rise to the aforesaid ground of appeal are stated hereunder: The Appellant is engaged in the business of providing Information Technology enabled Services ("ITeS") / Business Process Outsourcing ("BPO") services, including finance and accounting, collections, insurance, customer fulfilment services etc. to its associated enterprise. It is submitted that the erstwhile Genpact Infrastructure (Bhopal) Pvt. Ltd. amalgamated with Genpact India with effect from April 1, 2010 vide order of the Hon'ble Delhi High Court dated November 19, 2010 (Copy of the order attached as Annexure 1). Further, the AO was informed about the scheme of amalgamation vide letter dated January 24, 2011 (Copy attached as Annexure 2). However, the lower authorities namely the AO / DRP / TPO, have framed / passed orders on the erstwhile entity i.e. Genpact Infrastructure (Bhopal) Pvt. Ltd. The orders, thus, passed by the lower authorities are bad in law and void ab initio as the same have been passed on a nonexistent entity. In this regard, it is res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the additional ground, the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs CIT reported at 229 ITR 383, has held as under: "Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." 5. In view of the above, ratio laid down by the Hon'ble Supreme Court in the aforesaid referred to case, the additional ground raised by the assessee is admitted. 6. The ld. Counsel for the assessee submitted that the assessment order has been passed on erstwhile entity i.e. M/s Genpact Infrastructure (Bhopal) Pvt. Ltd. which amalgamated with M/s Genpact India w.e.f. 01.04.2010 vide order of the Hon'ble Delhi High Court dated 19.11.2010 (copy of which is furnished as Annexure 1). It was submitted that the order thus passed by the AO was bad in law, void ab initio as the same had been passed on a non-existent entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril 1, 2010 being, the appointed date under the Scheme of Amalgamation. A copy of the order passed by the Hon'ble Delhi High Court and the acknowledgment of fifing, the same with the office of Registrar of Companies on December 31, 2010 is collectively enclosed as Annexure A for your records. We request your office to take the above record." It has further been mentioned as under: "Further, in view of the aforesaid, we hereby surrender the PAN AACCG6569R issued to Genpact Bhopal and request your office to transfer all the files/records pertaining to Genpact Bhopal maintained by your office, to Circle 12(1), New Delhi and consequently, enable the office of Circle 12(1), New Delhi to issue all pending refunds due to Genpact Bhopal to Genpact India, it being the amalgamated company. We believe that our above request will be acceded to." 9. From the aforesaid letter, it is crystal clear that information was received by the AO on 03.02.2011 relating to the amalgamation of the assessee with M/s Genpact India and a reference was made by the AO u/s 92CA(1) of the Act to the TPO who vide letter dated 17.02.2012 asked the assessee to submit the document maintained in terms of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; however, the Assessing Officer, despite being told that the original company was no longer in existence, did not Le remedial measures and did not transpose the transferee as the company which had to be assessed, instead, he resorted to a peculiar procedure of describing the original assessee as the one in existence; order also mentioned the transferee's name below that of assessee's company. Now, that did not to the assessment being completed in the name of the transferee-company. According to the sing Officer, the assesseecompany was still in existence. Clearly, this was a case where the assesssment was contrary to law, as having being completed against a non-existent company. The Tribunal's decision is, in the circumstances, justified and warranted." 12. Similarly, the Hon'ble Jurisdictional High Court in the case of Spice Infotainment Ltd. v. CIT [IT Nos. 475 & 476 of 2011, dated 3-8-2011] held as under: "No doubt, M/s Spice was an assessee and as an incorporated company and was in existence when it the returns in respect of two assessment years in question. However, before the case could be ted for scrutiny and assessment proceedings could be initiated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal defect as there cannot be any assessment against a 'dead per son'." 13. In the present case also as the assessment was framed in the name of non-existing entity i.e. M/s Suzuki Powertrain India Ltd. which amalgamated with M/s Maruti Suzuki India Ltd. and this irregularity was not curable. Therefore, the assessment order passed by the AO in the name of non- existing entity was void ab initio and deserves to be quashed, we order accordingly. 14. On the present case, the contention of the Id. CIT DR was that the assessment was rightly framed by the AO on the assessee who filed the return of income and when the income was earned, it was inexistence. This controversy has been settled by the Hon'ble Jurisdictional High Court in the case of CIT v. Dimension Apparels (P.) Ltd. [2015] 370 ITR 288/[2014] 52 taxmann.com 356 (Delhi) wherein it has been held as under: "Section 170(2) of the Income-tax Act, 1961, makes it clear that in the case of amalgamation, the assessment must be made on the successor (i.e., the amalgamated company). Section 176 which contains provisions pertaining to a discontinuation of business, does not apply to a case of amalgamation. The langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precluded from raising an objection if it has participated in the assessment proceedings was negatived in Spice Infotainment Ltd. v. CIT [2012] 247 CTR (Del.) 500 wherein it was held that once it was found that the assessment was framed in the name of a non-existent entity, it did not remain a procedural irregularity of the nature which could be cured by invoking the provisions of section 292-B. The legal position having been made abundantly clear, there is no hesitation in holding that impugned order passed by Tribunal does not require any interference The appeal is accordingly dismissed." 12. Recently the Hon'ble Apex Court dismissed the SLP moved by the Department in the case of M/s Spice Enfotainment Ltd. which has been followed in the aforesaid referred case of M/s Maruti Suzuki Pvt. Ltd. vs. DCIT, vide order dated 2nd November, 2017. 13. In the present case also, as we have already pointed out that the assessment was framed by the AO on the non-existent amalgamated company, not on the amalgamating company, therefore, the assessment framed was void ab initio and the same was rightly quashed by the ld. CIT(A). Since, we have quashed the assessment framed by the AO therefore n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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