TMI Blog2019 (6) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... thy, JM For the Assessee : Shri P.J. Pardiwalla And Shri Darpan Kirpalani For the Revenue : Shri S.B. Prasad, CIT-DR ORDER PER VIKAS AWASTHY, JM These cross appeals by the assessee and the Revenue are directed against the order of Commissioner of Income Tax (Appeals)-1, Pune dated 22.11.2016 for the assessment year 2011-12. 2. The brief facts of the case as emanating from records are: The assessee is engaged in product development as well as marketing, customization, on-going support, warranty services, etc. The assessee during the period relevant to the assessment year under appeal had entered into certain international transactions with Associated Enterprises . For benchmarking international transactions, reference was made to Transfer Pricing Officer (TPO) u/s.92CA(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). The Assessing Officer after receiving the order dated 10.09.2014 from TPO made adjustment in the international transactions as proposed and also made certain other additions/disallowances. 3. Aggrieved against the assessment order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. However, despite an intimation of merger by the assessee to the Assessing Officer, the Assessing Officer issued notice u/s.143(2) of the Act in the name of erstwhile Amdocs Business Services Private Limited on 8th August, 2013. The assessee again vide communication dated 17th September, 2013 intimated the Assessing Officer regarding merger of the company. The Assessing Officer without taking notice of the repeated intimations by the assessee finalized the assessment u/s.143(3) r.w.s.92CA of the Act on 27.03.2015 in the name of erstwhile Amdocs Business Services Private Limited that was not in existence on the date of finalization of assessment order. The ld. AR submitted that during assessment proceedings, various communications were made by the assessee to Assessing Officer and all the communications were made in the name of Amdocs Development Centre India Private Limited . In all such communications, it was specifically mentioned in title that it is a successor of Amdocs Business Services Private Limited . The ld. AR referred to one such communication dated 12.03.2015 at page 53 of the paper book. 7.1 The ld. AR submitted that the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment proceedings, various communications were made by assessee to the Assessing Officer in the name of new company and it was specifically mentioned in each such communication that erstwhile Amdocs Business Services Private Limited has been merged with Amdocs Development Centre India Private Limited . The assessee discharged his onus of intimating the fact of merger of company with Amdocs Development Centre India Private Limited . The Assessing Officer despite having intimation regarding merger of Amdocs Business Services Private Limited with Amdocs Development Centre India Private Limited , passed assessment order in the name of company which had ceased to exist on the date of passing assessment order. The assessment made in the name of non-existent company is invalid and unsustainable in the eye of law. 10. The Hon'ble Jurisdictional High Court in the case of Jitendra Chandralal Navlani Vs. Union of India (supra.) has held that issuance of notice (u/s.148 of the Act) and assessment order in the name of a non existing entity is without jurisdiction. 11. The Hon'ble Delhi High Court in the case of Spice Entertainm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share holders of each blending Company become substantially the share holders 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 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. 9. The Court referred to its earlier judgment in General Radio and Appliances Co. Ltd. Vs. M.A. Khader (1986) 60 Comp Case 1013. In view of the aforesaid clinching position in law, it is difficult to digest the circuitous route adopted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons or other proceeding if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act. 13. The Punjab Haryana High Court stated the effect of this provision in CIT Vs. Norton Motors, 275 ITR 595 in the following manner:- A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent proceedings were null and void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application. 16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person . 17. The order of the Tribunal is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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