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Pr. Commissioner of Income Tax-6 Versus Nokia Solutions & Network India Pvt Ltd (Formerly Known As, Nokia Siemens Network Pvt Ltd)

2018 (2) TMI 980 - DELHI HIGH COURT

Assessment against non existent company - validity of reopening of assessment - Held that:- It is evident from the narration of facts that in the first instance the assessment was conducted in the name of a non existing entity. The DRP to whom the matter was directed by the first remand of the ITAT, was not directed to, in turn, require the AO to “better” the original incurable illegality and here the DRP clearly did that. The fact that the matter was remitted at the instance of the assessee who .....

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(2014 (11) TMI 181 - DELHI HIGH COURT) also held that the position taken or urged by the assessee cannot be held against it if the primary jurisdiction does not exist i.e. to conclude an assessment in the name of a non existing entity. - Decided against revenue - ITA 135/2018 - Dated:- 6-2-2018 - S. Ravindra Bhat And A. K. Chawla, JJ. For the Appellant : Mr. Rahul Chaudhary, Sr. Standing Counsel with Mr. Sanjay Kumar, Jr. Standing Counsel for Income Tax Deptt. For the Respondent : Ms. Rashmi Cho .....

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d its returns for A.Y. 2006-07 on 29.11.2006. Return was processed under Section 143(1) of the Income Tax Act, 1961 (hereafter referred to as the Act ) on 27.06.2007. However, the returns were selected for scrutiny and notice was issued under Section 143(2) of the Act on 12.10.2007. In the meanwhile, pending proceedings of amalgamation before the Karnataka High Court, an order was made on 09.01.2009, by virtue of which, the old company merged with Nokia Solutions & Network India Pvt. Ltd. i. .....

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Since international transactions were involved, the AO referred the matter to the Transfer Pricing Officer based on whose report a draft assessment order was made on 29.12.2009. The dispute resolution panel made its recommendations/returned findings on 20.09.2010 and a final assessment was framed on 28.10.2010 - but in the name of the old company. It was in these circumstances that the respondent preferred an appeal to the ITAT and urged an additional ground that the assessment was framed in the .....

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.04.2016 in the name of the respondent/assessee. 3. The respondent/assessee appealed to the ITAT urging that the ruling in Spice Entertainment Ltd. (supra) squarely applied since the proceedings, to start with, culminating in the assessment order of 28.10.2010 were a nullity and that in the circumstances the DRP s directions could not have resulted in an order, based upon the proceedings that were a nullity. The ITAT accepted these arguments holding that the law declared in Spice Entertainment L .....

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elopment, it could not have directed the framing of an assessment in favour of a non existing company and therefore directed the AO to frame it in the name of the respondent/assessee, which it did. It is also contended that the DRP rendered express findings that the proceedings before it - in the earlier round before the Tribunal were in continuation of the assessment proceedings and that framing final assessment, after remitting in the name of the respondent/assessee, was justified in law. It w .....

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