TMI Blog2019 (10) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Pr. CIT-2, Mumbai, under Sec.263 of the Act, for want of jurisdiction, therefore, we refrain from adverting to the merits of the issues therein involved, which thus are left open. The appeal of the assessee is partly allowed - ITA No.7249/Mum/2017 - - - Dated:- 11-10-2019 - Shri M. Balaganesh, Accountant Member And Shri Ravish Sood, Judicial Member For the Appellant : Shri J.D. Mistry And Shri Har sh Kapadia, A.Rs For the Respondent : Shri R.Manjunatha Swami, D.R ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the Pr. Commissioner of Income Tax -2, (for short Pr. CIT‟), Mumbai, under Sec.263 of the Income Tax Act, 1961 (for short Act‟), dated 24.10.2017 for A.Y. 2011-12. The assessee has assailed the impugned order on the following grounds of appeal: Being aggrieved by the order under section 263 of the Income-tax Act, 1961 ('the Act') passed by the Principal Commissioner of Income-tax - 2, Mumbai (hereinafter referred to as the CIT'), the Appellant hereby submits the following grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Satyam Computers Services Ltd. was processed as such under Sec. 143(1) of the Act on 08.03.2011. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec.143(2) of the Act. 3. During the course of the assessment proceedings it was observed by the A.O that the aforesaid assessee company viz. Satyam Computers Services Ltd. had subsequently been merged with M/s Tech Mahindra Ltd., which also was being assessed in the same charge. Also, it was noticed by him that the merger of Satyam Computers Services Ltd. with M/s Tech Mahindra Ltd. had taken place w.e.f 01.04.2011, and subsequent to the said merger the existing proceedings against Satyam Computers Services Ltd. were taken over by Tech Mahindra ltd. A draft assessment order was passed by the A.O under Sec. 143(3) r.w.s 144C(1), dated 27.03.2015. Final assessment order under Sec. 143(3) r.w.s 144C(3), dated 25.05.2015, determining the total income at ₹ 37,87,44,908/- was passed in the hands of the aforementioned assessee viz. M/s Satyam Computers Services Ltd. 4. Observing, that the A.O while framing the assessment under Sec.143(3) r.w.s 144C(3), dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company viz. M/s Tech Mahindra Ltd. w.e.f 01.04.2011. It was submitted by the ld. A.R, that though the fact that M/s Satyam Computers Services Ltd. had merged with the assessee company was well in the notice of the A.O, however, he had framed the assessment under Sec. 143(3) r.w.s 144C(3), dated 25.05.2015 in the name of M/s Satyam Computers Services Ltd. . Also, it was submitted by him, that the Pr. CIT-2, Mumbai too had passed the order under Sec. 263 of the Act, dated 24.10.2017 in the name of the M/s Satyam Computers Services Ltd. (now merged with Tech Mahindra Ltd.) , despite the fact that the same was non-existent on the date of passing of such order. In the backdrop of the aforesaid facts, it was submitted by the ld. A.R that the assessment framed in the name of the amalgamating company viz. M/s Satyam Computers services Ltd. which had ceased to exist in the eyes of law, was thus invalid and untenable in law. It was averred by the ld. A.R, that the A.O despite being well informed of the fact that M/s Satyam Computers Services Ltd. which had merged with the assessee company w.e.f 01.04.2011, had thus ceased to exist, however, had framed the assessment in the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was non-existent on the respective dates when the said orders were passed, therefore, the same were null and void ab initio. Alternatively, it was submitted by the ld. A.R that the Pr. CIT could not have revised an order passed under Sec. 143(3) which in itself was non-est in the eyes of law. In support of his aforesaid contention the ld. A.R had relied on the order of the ITAT, Mumbai Bench G in the case of West Life Development Ltd. Vs. PCIT-5, Mumbai (2017) 88 taxman.com 439 (Mum). 6. Per contra, the ld. Departmental Representative (for short D.R‟) submitted that no infirmity did emerge from the order passed by the Pr. CIT under Sec. 263 of the Act. It was submitted by the ld. D.R that the mention of the name of the amalgamating company viz. Satyam Computers Services Ltd. in the assessment order and also the order passed under Sec.263 by the Pr. CIT was merely a technical mistake which by no means would suffice for characterising the said orders as non-est in the eyes of law. 7. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant to point out that even in the aforesaid order passed by the Pr. CIT under Sec. 263 of the Act, the PAN Number of M/s Satyam Computers Services Ltd. i.e AACCS8639Q was mentioned. In sum and substance, a perusal of the orders of the lower authorities reveals beyond any scope of doubt that the respective orders under Sec.143(3) r.w.s 144C(3), dated 25.05.2015 and under Sec. 263 of the Act, dated 24.10.2017, were passed in the name of a non-existent entity viz. M/s Satyam Computers Services Ltd. 9. We shall now deliberate on the validity of the impugned order passed by the Pr. CIT-2, Mumbai, under Section 263 of the Act, dated 24.10.2017. The issue involved in the present appeal lies in a narrow compass i.e. as to whether the order passed in the name of a nonexistent company would be sustainable in the eyes of law, or not. We find that the issue hereinabove involved is no more res integra pursuant to the judgement of the Hon ble Supreme Court in the case of Pr. CIT, new Delhi Vs Maruti Suzuki India Ltd. (Civil appeal No. 5409 of 2019, dated 25.07.2019) . We shall briefly cull out the facts which were involved in the aforesaid case before the Hon‟ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was observed by the Hon‟ble Court that the basis on which the jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Also, it was observed by the Hon‟ble Apex Court that participation in the proceedings by the assessee would not operate as an estoppel against law. While observing as hereinabove, the Hon‟ble Court had relied on its earlier order in the case of CIT Vs. M/s Spice Enfotainment Ltd. (Civil Appeal No. 285 of 2014), dated 02.11.2017 , wherein the order of the Hon‟ble High Court of Delhi was affirmed and the SLP filed by the revenue was dismissed. In fact, we find that the Hon ble Supreme Court in the case of CIT Vs. M/s Spice Enfotainment Ltd. (Civil appeal No. 285 of 2014) , had upheld the order of the Hon‟ble High Court of Delhi, which while allowing the appeal of the assessee, had concluded, that where the A.O had framed the assessment in the hands of a non-existent entity, the proceedings and the assessment order so passed would be clearly void and could not be classed as a procedural irregularity of a nature wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d may show that is is intended to include such an acquisition. See halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity. On the basis of our aforesaid deliberations, it can safely be concluded that the assessment order passed by the A.O under Sec. 143(3) r.w.s 144C(3), dated 25.05.2015 in the hands of M/s Satyam Computers Services ltd., i.e an entity that was on the date on which the assessment order was passed was non-existent, would thus be non-est in the eyes of law. Now, in the backdrop of the aforesaid facts, we shall deliberate on the sustainability of the order passed by the Pr. CIT under Sec. 263 of the Act, dated 24.10.2017, which as observed by us hereinabove is found to be in the name of Satyam Computes Services Ltd. (now merged with Tech Mahindra Ltd.) with a specific mention of the PAN Number of the said amalgamating company. To sum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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