9911796707
TMI Blog2021 (5) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Through: Mr. Raghvendra Singh, Adv. Respondent Through: Mr. Nageswar Rao, Ms. Deepika, Agarwal and Ms. Viyushti Rawat, Advs. ORDER 1. These appeals, impugn the common order dated 6th July, 2018 of the Income Tax Appellate Tribunal (ITAT) (in ITA No.836/Del/2014 for the Assessment Year 2009-10 and in ITA No.554/Del/2015 for the Assessment Year 2010-11, allowing the appeals of the Respondent-Assessee against the separate orders under Section 143(3)/144C, of the Assessing Officer (AO), for the Assessment Years 2009-10 and 2010-11) holding, that Since the final assessment in the instant case has been made on a non-existent company, therefore, following the decisions cited (supra) we hold that the assessment framed by the AO on a non-existent company is a nullity in the eyes of law and void and the provisions of section 292B cannot rescue the department. Therefore, the order is unsustainable and accordingly the same is quashed. 2. Though these appeals came up first before this Court on 4th February, 2019, but notice thereof was ordered to be issued only on 14th November, 2019. The counsels were heard on 1st February, 2021 and 10th February, 2021, on, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed its return of income for the subject assessment years, in the name of Sony Ericsson Mobile Communications (India) Pvt. Ltd. (iii) the name of the Respondent-Assessee, w.e.f. 18th April, 2012, was changed to Sony Mobile Communications (India) Pvt. Ltd.; (iv) Sony Mobile Communications (India) Pvt. Ltd., w.e.f. 1st April, 2013, was merged with Sony India Pvt. Ltd.; (v) the Appellant-Revenue, vide letter dated 6th December, 2013 was informed of the merger; (vi) the factum of merger was also mentioned in another letter dated 17th February, 2014 of the Respondent-Assessee to the Appellant-Revenue; (vii) however notwithstanding the aforesaid, the AO passed the draft assessment order dated 31st March, 2014, in the name of Sony Ericsson Mobile Communications (India) Pvt. Ltd.; (viii) the Respondent-Assessee, in response to the department s allegation that no intimation about merger was made, wrote a letter dated 30th April, 2014; (ix) the DRP, in its order dated 21st October, 2014 mentioned the name of the Respondent-Assessee as Sony Mobile Communications (India) Private Limited (now merged with Sony India Private Ltd) .; (x) however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(2) of the Act, under which jurisdiction was assumed by the AO, was issued to a non-existent company, the assessment order issued against the amalgamating company was void and not a procedural violation of the nature adverted to in Section 292B of the Act. It was contended that the facts of the present case are different and thus the ratio of Maruti Suzuki India Ltd. (supra) is not applicable. It was further contended that in the present case, till the issuance of notice under Section 143(2) of the Act, the name of the assessee had not changed and the notice was issued in the correct name and the error, even if any in the name of the Respondent-Assessee in the assessment order, is an error which is within the jurisdiction of the AO and which is correctable. Additionally, it was informed that in Maruti Suzuki India Ltd. (supra), the appeal before this Court had been filed in the name of the amalgamated company but in the present case, the Respondent-Assessee also filed ITA No. 638/Del/2015 against the earlier order dated 27th February, 2015 of the ITAT, in the old name in which return of income was filed, notwithstanding the subsequent change in name and amalgamation. Att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding as far as the present appeals are concerned. It cannot be lost sight of, that a judgment is a precedent on what was for adjudication and not on what may reasonably be inferred therefrom. However at this stage nothing further needs to be said on this aspect, save referring to a recent dicta of a co-ordinate Bench of this Court in Savita Kapila Vs. Assistant Commissioner of Income Tax (2020) 426 ITR 502 (Delhi), also holding in the facts of that case, that the notice under Section 148 of the Act being the foundation of reopening of an assessment, issuance of notice in the correct name is the sine qua non for acquiring jurisdiction to reopen an assessment. It was further held that Section 159 title Legal Representatives applies to a situation where proceedings are initiated/pending against the assessee when alive, and that issuance of a notice upon a dead person does not come under the ambit of mistake, defect or omission within the meaning of Section 292B of the Act. Applying the said judgment also, it appears that the jurisdictional notice in the present case having been issued in the correct name, merely because the assessment order did not mention the subsequently chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, that if the consequences of change of name/amalgamation are to be such as held by the ITAT, what is the sanctity of the remand order dated 28th January, 2016 and whether the challenge in ITA No.638/Del/2015 filed in the old name itself was bad and the order dated 27th February, 2015 of the ITAT in the first round thus stands and there was no remand to the ITAT. 15. In the present case, when the change of name of the assessee from Sony Ericsson Mobile Communications India Pvt. Ltd. to Sony Mobile Communications India Pvt. Ltd. was effected on 18th April, 2012, Section 23(3) of the 1956 Act was in force. Similarly, when the merger of Sony Mobile Communications India Pvt. Ltd. into Sony India Pvt. Ltd. took place with effect from 1st April, 2013, Section 23(3) of the 1956 Act was still in force. 16. We also do not have before us, the communications dated 6 th December, 2013 and 17th February, 2014 by which the Respondent-Assessee is stated to have informed the AO of the change of name and are thus unable to gauge whether they were in relation to proceedings for assessment of the relevant year or in general. 17. We are therefore of the view that the second question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to pass the order afresh in light of its ruling dated 16th March 2015 in M/s Sony Ericsson Mobile Communications (India) Pvt. Ltd. Vs. CIT, (2015) 374 ITR 118 (Del). Upon restoration, the ITAT, instead of considering the issue of ALP expenses and adjudicating upon the validity of related TP adjustment by the TPO, decided and allowed the appeal on the sole ground that the assessment order passed under Section 143(3) read with section 144C of the Act is void ab initio as the assessment was undertaken in the name of a non-existent entity. It was observed that the draft assessment order was passed on 31st March, 2014 in the name of M/s Sony Ericsson Mobile Communications (India) Pvt. Ltd. The above noted company, (renamed Sony Mobile Communications (India) Pvt. Ltd. w.e.f. 18th April, 2012), had merged with M/s Sony India Pvt. Ltd. w.e.f. 1st April, 2013, after the High Court approved the scheme of amalgamation on 23rd July, 2013. The Respondent had sent intimation to the Department informing it of the amalgamation of M/s Sony Mobile Communications (India) Pvt. Ltd. with Sony India Pvt. Ltd. The ITAT observed that the DRP in its order dated 21st October, 2014, mentioned the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are quite different from those that fell for consideration in Maruti Suzuki India Limited (supra), and therefore the ratio of the said decision is not applicable here. On this aspect, Revenue has laid considerable stress on the issuance of the notice under Section 143(2) of the Act, by urging that in the instant case, at the stage of assumption of jurisdiction by issuance of the notice, the name of the assessee had not changed and the notice was issued in the correct name. The error in the name of the assessee at the stage of issuance of the assessment order, was thus curable. This distinguishing fact, in my considered opinion, does not help the Revenue at all. The judgment of the Supreme Court in Maruti Suzuki India Limited (supra), laid down the law with respect to assessment orders which have been framed in the name of the entity which stood amalgamated under the approved scheme of amalgamation. The Apex Court has dealt with several judgments on this aspect and also considered the earlier judgment of this Court in Spice Entertainment Limited (supra). Besides, the Supreme Court also considered the contention of the Revenue therein that a contrary position had been taken by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was brought to the notice of the Assessing Officer (AO) by the amalgamated company on 2nd April, 2004. However, despite the said intimation, the Assessing Officer (AO) vide order dated 28th March, 2005 passed the order under Section 143(3) of the Act and framed the assessment in the name of Spice Corp. Ltd., the amalgamating company, which admittedly had been dissolved as on that date. Even in the case of Maruti Suzuki India Limited (supra), the Court noted this crucial aspect - that the Assessing Officer was informed that the amalgamating company ceased to exist as a result of the approved scheme of amalgamation. 27. In the instant case as well, the ITAT has specifically noted that the Respondent-Assessee had sent an intimation on 6th December, 2013, informing the Department of the fact of amalgamation of Sony Mobile Communications (India) Pvt. Ltd. with Sony India Pvt. Ltd. Further, on 17th February, 2014, another letter was sent to the Department where the facts of the amalgamation were mentioned. Despite that, the draft assessment order was issued by the AO in the name of the non-existent amalgamating company. Furthermore, on 30th April, 2014, the Respondent-Assessee sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be not a mere procedural irregularity, but a jurisdictional defect. 30. Lastly, there is merit in the argument that minor differences in facts are irrelevant in tax litigation, and the canon of certainty in taxation ought to be respected in order to ensure uniformity. The Supreme Court also opined on this aspect in Maruti Suzuki India Limited, (supra), which is extracted as follows: 34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. 31. In view of the above, since all the aspects sought to be urged by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
