TMI Blog2017 (12) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... facts in the instant case clearly show that a valid appeal has been presented by the correct assessee, and for that reason, the wrong mentioning in the cause title of the Appeal Memo is to be construed only as a mistake. In any case, such mistake has also been rectified by the assessee by filing a revised Form no. 36B, which is on record. In fact, the rectification done by the appellant is not a case of substitution of a new appellant by another, as was the case found by the Chennai Bench of the Tribunal. The instant is a case where the original appeal has been presented by the correct appellant, but with a defective nomenclature in the title which also stands subsequently rectified. As a consequence of our aforesaid discussion, even for the Assessment Year 2007-08, we hold that the assessment order dated 07.10.2011 (supra) passed in the name of M/s. Shell Technology India Pvt. Ltd. is a nullity inasmuch as it has been passed in the name of a non-existent concern as it stood merged with M/s. Shell India Markets Pvt. Ltd. w.e.f. 01.04.2008 following the scheme of merger having been approved by the Hon'ble High Courts of Karnataka and Madras vide orders dated 22.02.2010 (supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. ( supra ), the same deserves to be admitted. This aspect was made clear at the time of hearing and accordingly, the rival counsels were heard on the merits of the said aspect at the threshold itself. 4. Although the facts and circumstances in relation to the aforesaid aspect stand on similar footing in both the assessment years, so however, we take-up for consideration firstly, the appeal of the assessee for Assessment Year 2008-09 in ITA No. 772/Mum/2013 which is directed against the order dated 30.11.2012 passed by the Assessing Officer u/s 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 (in short the Act ) giving effect to the directions of Dispute Resolution Panel-II, Mumbai (DRP) dated 27.09.2012. 5. The relevant facts are that the appellant is a company incorporated under the provisions of the Companies Act, 1956 and is, inter-alia , engaged in downstream oil operations such as retailing of petroleum, supply of lubricants and bitumen and it also houses two captive centres in Bangalore and Chennai. The erstwhile assessee, M/s. Shell Technology India Pvt. Ltd. filed its return of income for Assessment Year 2008-09 on 29.09.2008 declaring an income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16.11.2016 iii) CIT vs. Dimension Apparels (P.) Ltd., 370 ITR 288 (Delhi) the assessment order passed in the name of a non-existent assessee is void-ab-initio and is liable to be quashed. 6. The ld. DR appearing for the Revenue has not controverted the factual matrix brought out by the learned representative for the assessee, but reiterated that it was a procedural lapse and, therefore, the assessment could not be held to be void-ab-initio . 7. We have carefully considered the rival submissions. Factually speaking, it clearly emerges from record that the assessment order dated 30.11.2012 (supra) has been passed in the name of M/s. Shell Technology India Pvt. Ltd., a concern which was non-existent as on that date, having merged with M/s. Shell India Markets Pvt. Ltd. consequent to the scheme of merger approved by the Hon'ble High Courts of Karnataka and Madras vide orders dated 22.02.2010 (supra) and 24.02.2010 (supra) respectively. The communication of the assessee dated 21.09.2010 to the Assessing Officer, which is duly acknowledged, also evidences that the Assessing Officer was made aware of the merger having come into effect from 1.4.2008. Now, the moot p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dimension Apparels (P.) Ltd. (supra) as also in its earlier judgment in the case of Spice Entertainment Ltd. (supra) has held that framing of assessment on a non-existent entity is a jurisdictional defect which could not be construed as a procedural defect covered by Sec. 292B of the Act. Therefore, the objection raised by the ld. DR in support of the impugned assessment order passed in the name of the erstwhile non-existent M/s. Shell Technology India Pvt. Ltd. is devoid of merit and is hereby rejected. 10. In conclusion, we quash the assessment order dated 30.11.2012 (supra) as it was passed in the name of a non-existent concern, as the erstwhile concern, namely, M/s. Shell Technology India Pvt. Ltd. stood merged with M/s. Shell India Markets Pvt. Ltd. w.e.f. 1.4.2008 following the scheme of merger having been approved by the Hon'ble High Courts of Karnataka and Madras vide orders dated 22.10.2010 (supra) and 24.10.2010 (supra) respectively. Since we have approved the preliminary plea of the assessee, which goes to the root of the matter, and the assessment has been held to be a nullity, the necessity of examining the merits of other Grounds raised by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be treated on the same footing as in Assessment Year 2008-09. Our attention was drawn to the discussion made by the Hon'ble Delhi High Court in the case of Micra India (P.) Ltd., 231 Taxman 809 (Delhi) whereby the objections similar to that raised by the ld. DR herein have been dealt with and rejected. 15. We have carefully perused the judgment of the Hon'ble Delhi High Court in the case of Micra India (P.) Ltd. (supra) and find that the same also deals with the issue relating to validity of an assessment made in the name of a concern which had ceased to exist on the date of assessment on account of its amalgamation. In fact, in the case of Micra India (P.) Ltd. (supra), the Hon'ble Delhi High Court was dealing with an assessment made in pursuance to a notice issued u/s 153C of the Act. As per the Hon'ble High Court, notice u/s 153C of the Act ought to have been sent to the new entity, and since such notice was not sent to the new entity, the assessment made in the hands of the erstwhile non-existent assessee was a nullity in the eyes of law. So, however, in the context of the controversy before us, the Hon'ble High Court noted the manner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. as on the date of assessment. The plea of the assessee before the Tribunal was that the assessment order was passed in the name of a non-existent concern inspite of the fact having been brought to the notice of the Assessing Officer and, therefore, such an assessment would not stand in the eyes of law. The Bench noted that when the appeal Memo was initially filed before the Tribunal, it was in the name of M/s. Zenta Knowledge Services (P) Ltd. and it was only subsequently through an application that assessee pleaded to take M/s. Accenture Services Pvt. Ltd. as appellant before the Tribunal. Going by the original appeal filed, which was in the name of a non-existent concern, i.e. M/s. Zenta Knowledge Services (P) Ltd., it was observed that the appellate proceedings do not survive as it could not have been initiated by a non-existent concern. In this manner, the appeal of the assessee was dismissed. The ld. DR has relied on the aforesaid decision of the Chennai Bench of the Tribunal to point out that even in the instant case, the Memo of appeal originally filed in Form no. 36B before the Tribunal on 11.11.2011, which reads as under :- M/s. Shell Technology India Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity has presented the appeal before the Tribunal? The clue for the answer can be had from the manner in which the Memo of Appeal has been signed and presented before the Tribunal, which reads as under :- VERIFICATION I, R Suriyanarayana, Director of Shell India Markets Pvt. Limited (erstwhile Shell Technology India Pvt. Limited) do hereby declare that what is stated above is true to the best of my information and belief. Verified today the 10th day of November 2011 Even the Grounds of appeal have been filed by the new concern, which is evidenced by the following :- GROUNDS OF APPEAL As per Annexure A attached herewith. For M/s. Shell India Markets Pvt. Limited ( erstwhile Shell Technology India Pvt. Ltd.) Sd/- R. Suriyanarayana Director 20. Factually speaking, it could not be said that the appeal has been presented by a non-existent assessee, as it has been signed for and on behalf of the new entity, i.e. M/s. Shell India Markets Pvt. Ltd. Of course, the cause title has not been correctly worded as it refers to the old concern and it is only in the brackets that it is mentioned that the same stands merge ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
