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TMI Blog2024 (11) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act 1956 is that the amalgamating company ceased to exist and upon the amalgamating company ceasing to exist, it cannot be regarded as a person under Section 2(31) of the Act 1961 against whom assessment proceedings can be initiated or an order of assessment passed. Thus as the amalgamating company i.e. Genpact India was not in existence at the time of conducting assessment proceedings as well as on the date of passing Assessment Order. 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 - Decided in favour of assessee. - Shri S. Rifaur Rahman, Accountant Member And Shri Sudhir Kumar, Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order wherein PAN of the erstwhile company was mentioned along with Genpact India with a net tax refund of Rs. 17,80,92,467/-. He submitted that even though it is in the knowledge of Assessing Officer about the amalgamation, he has taken note of the erstwhile name of the company and existing name of the company, still he passed the assessment order in the name of the erstwhile company by raising demand in the name of erstwhile company. He submitted that similar issue came before coordinate Bench in AY 2014-15 and the coordinate Bench decided the exact similar issue in ITA No.583/Del/2020 dated 23.07.2020. He brought to our notice similar facts recorded by the coordinate Bench in the above order at page 151 of the paper book and he also bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PCIT vs. Mahagun Realtors (P) Ltd. 433 ITR 194 (SC). Further, he submitted that the issue raised by the assessee is only system lacunae and the Assessing Officer has to follow return of income filed by the assessee and relevant PAN for completion of the assessment in the name of the erstwhile company only. He also submitted that there is no prejudice caused to the assessee. Ld. DR further submitted that the decision of AY 2014-15 cannot be relied upon considering the fact that income-tax proceedings are res judicata, since the concept of res judicata is not applicable in the income tax. 5. In rejoinder, ld. AR for the assessee brought to our notice facts recorded in the AY 2014-15. He brought to our notice page 155 of the paper book, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court. The Assessing Officer has passed the order by mentioning in title of the order the name of the assessee as Genpact India (now merged with Genpact India Private Limited PAN: AABCE4461B). Thus, the Assessing Officer was very much aware that the amalgamating company Genpact India is no longer in existence. This also is supported by the letter dated 18.04.2016 addressed to Member (IT), CBDT and copy to Assessing Officer, DCIT, Circle 10(1), Delhi intimating therein by the assessee that Genpact India (a wholly owned subsidiary of Empower) has, in the 68th meeting of Board of Approval (BoA) for SEZs held on December 30, 2015, obtained the approval of the BoA for change in the entrepreneurship of its SEZ units to Empower. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blending of two or more 30 [2019] 260 Taxman 412 (Del.) 31 (2019) 261 Taxman 137 (Guj) existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly amalgamation does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of England (4th e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso the amalgamating company i.e. Genpact India was not in existence at the time of conducting assessment proceedings as well as on the date of passing Assessment Order. 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 of the Act. Hence, the Assessment order itself are void ab initio. Therefore, assessment order is set aside. We allow Ground Nos. 1, 2 3 of the appeal filed by the assessee. There is no need to give any finding relating to the other issues as the assessment order itself is void ab initio. 7. Respectfully following the above decision, we are inclined to allow ground no.1 raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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