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TMI Blog2021 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... ana, Advocate ORDER Per N. V. Vasudevan, Vice President IT(TP)A No. 1246/Bang/2015 is an appeal by the Revenue while IT(TP)A No. 1248/Bang/2015 is an appeal by the Assessee. Both the appeals are directed against the order dt. 23.07.2015 of CIT(A) - XIV, Large Taxpayers Unit, Bengaluru, relating to Assessment Year 2010-11. 2. In its appeal, the Assessee has filed an application dated 13.12.2017 for admission of the following additional ground of appeal:- Assessment under section 143(3) r.w.s. 144C of the Act is bad in law, as the same has been made on a non-existent person and is liable to be quashed. a) The Learned Assessing officer ('AO') has erred in issuing notice under section 143(2) of the Act dated 29 August 2011 to Perot Systems Business Process Solutions India Private Limited ('Perot BPS') and Vision Health Source India (P) Limited without appreciating the fact that it is not in accordance with law to issue notice to two different persons by way of single notice. b) The Learned AO has failed to appreciate the facts that the Perot BPS has merged with Dell International Services India Private Limited. The scheme of amalgamation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of an entity that ceased to exist on the date when it is passed is void-ab-initio, illegal and bad in law and deserves to be quashed as such orders are passed in the name of Perot Systems Business Process Solutions India Private Limited, an entity which was not in existence on the date when the order of assessment dated 12.3.2014 was passed. It is the plea of the Assessee that the additional ground now sought to be raised is purely a legal ground and that the facts necessary to adjudicate the additional ground is already available on record and hence the additional ground should be admitted in the interest of justice. 4. The learned counsel for the Assessee while reiterating plea as set forth in the application for admission of additional ground. 5. We have considered the prayer for admission of additional ground of appeal and are of the view that the additional grounds of appeal deserve to be admitted for adjudication as the facts for adjudication of additional grounds of appeal are already available on record. In the following judicial pronouncements it has been held that additional grounds which has a bearing on tax liability of an Assessee has to be admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire business and undertaking of Perot Systems Business Process Solutions India Private Limited, chennai stood transferred on a going concern basis to Dell International Services India Private Limited, Bangalore. The intimation of amalgamation was made to the AO at Chennai by letter dated 4.1.2011 who was assessing Perot Systems Business Process Solutions India Private Limited at Chennai. It is the plea of the Assessee that the order of assessment passed in the name of an entity that ceased to exist on the date when it is passed is void-ab-initio, illegal and bad in law and deserves to be quashed as such orders are passed in the name of Perot Systems Business Process Solutions India Private Limited, an entity which was not in existence on the date when the order of assessment dated 12.3.2014 was passed. He relied on the decision rendered by Hon'ble Supreme Court in case of Pr. CIT vs. Maruti Suzuki India Limited (Civil Appeal No. 5409 of 2019) (SLP No. 4298 of 2019) judgment dated 25.7.2019). 8. The Ld. DR for the revenue by relying upon the decision rendered by the Hon'ble High Court of Delhi in Sky Light Hospitality LLP vs. ACIT - (2018) 405 ITR 296 contended that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016, the AO passed draft assessment order in the name of SPIL. On April 12, 2016, the Assessee filed objections against the proposed additions in the draft assessment order before the Dispute Resolution Panel (DRP). The objections were filed by MSIL as successor in interest of erstwhile SPIL. On October 14, 2016, DRP gave its directions to the AO on the objections to the draft assessment order of the AO. On October 31, 2016, the AO passed the final order in the name of SPIL (amalgamated with MSIL). The Tribunal by its order dated April 6, 2017, held that the assessment order was invalid on the ground that it was void ab initio having been passed in the name of a non-existent entity by the TO. The Hon ble Delhi High Court affirmed the order of the Tribunal. The Assessee filed appeal before the Hon ble Supreme Court. The Assessee filed return of income on 14.10.2010 in the name of M/s Perot Systems Business Process Solutions India Private Limited By order of Company Law Board, Chennai Benches and the order of the Karnataka High Court, Perot Systems Business Process Solutions India Private Limited amalgamated with Dell International Services In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon'ble Mr. Justice A.K. Sikri and Hon'ble Mr. Justice Ashok Bhushan33. In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of this Court: In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Tax Act. The special leave petition is dismissed. Pending applications stand disposed of. Now, it is evident from the above extract that it was in the peculiar facts of the case that this Court indicated its agreement that the wrong name given in the notice was merely a clerical error, capable of being corrected under Section 292B. The peculiar facts of Skylight Hospitality emerge from the decision of the Delhi High Court Skylight Hospitality, an LLP, had taken over on 13 May 2016 and acquired the rights and liabilities of Skylight Hospitality Pvt. Ltd. upon conversion under the Limited Liability Partnership Act 200835. It instituted writ proceedings for challenging a notice under Sections 147/148 of the Act 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer was informed about amalgamation but the Assessment Order was passed in the name of the amalgamated company and not in the name of amalgamating company. In the said situation, the amalgamating company had filed an appeal and issue of validity of Assessment Order was raised and examined. It was held that the assessment order was invalid. This was not a case wherein notice under Section 147/148 of the Act was declared to be void and invalid but a case in which assessment order was passed in the name of and against a juristic person which had ceased to exist and stood dissolved as per provisions of the Companies Act. Order was in the name of non-existing person and hence void and illegal. 29. From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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