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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 ..... cided in favour of assessee - ITA No. 2025/Del/2014 - - - Dated:- 9-2-2018 - Sh. N. K. Saini, AM And Sh. K. N. Chary, JM For The Assessee : Sh. Vishal Kalra, Adv. And, Ms. Reena Malik, CA Sh. Khyati Dadhwal, Adv. For The Revenue : Mrs. Namita Panday, Sr. DR ORDER Per N. K. Saini, AM: This is an appeal by the assessee against the order dated 16.01.2013 passed by the AO u/s 143(3) r.w.s. 144C(5) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 2. The assessee also requested for admission of the additional ground under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 stating there as under: The Appellant requests to allow raising of the following ground of appeal in addition to those filed for adjudication before the Hon'ble Income Tax Appellate Tribunal ( Hon'ble Bench ): 1. That on the facts and circumstances of the case and in law, the orders passed by the Assessing Officer ( AO ) / Dispute Resolution Panel ( DRP ) / Transfer Pricing Officer ( TPO ) are bad in law and void ab initio as the same have been passed on a non-existent entity, namely Genpact Infrastructure (Bhopal) Pvt. Ltd. The brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, craves leave of the Hon'ble Bench to raise the aforesaid additional ground. In view of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs CIT: 229 ITR 383 as also the decision in the case of Jute Corporation of India vs. CIT: 187 ITR 688 and the discretion vested with your Honours under Rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963, it is prayed that the aforesaid additional ground of appeal may kindly be admitted and adjudicated on merits. The Appellant trusts that its request shall be acceded to. 3. The ld. Counsel for the assessee reiterated the contents of the aforesaid application and requested to admit the additional ground. In his rival submissions, the ld. Sr. DR opposed the admission of the additional ground. 4. We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the additional ground raised by the assessee is purely a legal ground and no fresh investigation is required. On a similar issue regarding to the admission of the additional ground, the Hon ble Supreme Court in the case of Nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax, Range-12, New Delhi on 03.02.2011. In the said letter it has been mentioned as under: Genpact Infrastructure (Bhopal) Private Limited was an Indian company engaged in providing Information Technology ( IT ) / IT Enabled Services (ITES), which had changed its registered office Co Delhi Information Technology Park, Shastri Park, New Delhi. It has been assessed to income-tax with your office vide PAN AACCG6569R. Genpact India is another Indian company, engaged in rendering ITES. It maintains its registered office at Delhi Information Technology Park, Shastri Park, New Delhi. Genpact India is presently assessed to income-tax with Circle I2(1), New Delhi vide PAN AAACG9163H. Pursuant to a scheme of amalgamation under section 391/394 of the Companies Act, 1956, as sanctioned by the Hon'ble Delhi High Court vide order dated November 19, 2010. Genpact Bhopal has been amalgamated with Genpact India. Consequently, Genpact Bhopal has ceased to exist as separate legal entity and all its assets and liabilities along with all rights, obligations, licenses, registrations etc. stands transferred to Genpact India w.e.f. April 1, 2010 being, the appointed date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through the material le on the record. In the present case, it is an admitted fact that the amalgamating company M/s Powertrain India Ltd. amalgamated with M/s Maruti Suzuki India Ltd. w.e.f. 01.04.2012, as a of scheme of amalgamation duly approved by the Hon'ble Delhi High Court vide order dated 2013 and the assessment in this has been framed by the AO vide order dated 03.03.2015. Therefore, dear that when the assessment order was passed on 03.03.2015, M/s Suzuki Powertrain India Ltd. lot inexistence. It is also noticed that the aforesaid fact was in the knowledge of the department as the informed vide various letters mentioned in para 5 of the former part of this order which were to the various Tax Authorities. However, the AO in spite of knowing this fact that M/s Suzuki in India Ltd. amalgamated with M/s Maruti Suzuki India Ltd., made the reference to the TPO and - sued the notice dated 07.11.2014 to the non-existent entity i.e. M/s Suzuki Powertrain India Ltd. 11. A similar issue the Hon'ble Jurisdictional High Court in the case of Micra India (P.) Ltd. (supra) under: In the instant case, no doubt there was participation during the course of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect. After the sanction of the scheme on 11th April, 2004, the Spice ceased to exit w.e.f 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said dead person . When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record Instead, the AO made the assessment in the name of M/s Spice which was nonexisting entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. It has been further held as under: Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of passing the assessment order was not valid and as such the same is quashed. Since we have allowed ground No. 1 of the assessee and assessment order is quashed, therefore, no finding is given on the other issues raised by the assessee. 11. It is also relevant to point that the aforesaid order of the ITAT in the case of Maruti Suzuki Pvt. Ltd. vs. DCIT, Circle 16(1), New Delhi (Supra) has been upheld by the Hon ble Jurisdictional High Court vide order dated 4th September, 2017 in the case of Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki Private Ltd., reported at (2017) 85 Taxmann.com 330 (supra) wherein it has been held as under: The revenue has repeatedly brought the issue before the Court in a large number of cases where, in more or less identical circumstances, the Assessing Officer had passed the assessment order in the name of the entity that had ceased to exist as on the date of the assessment order. In many of these cases, as in the present case, the Assessing Officer, after mentioning the name of the Amalgamating Company as the assessee, mentioned below it the name of the Amalgamated Company. The submission of revenue that under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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