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TMI Blog2019 (6) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer 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 dated 27.03.2015, the assessee filed appeal before the Commissioner of Income Tax (Appeals) inter alia challenging validity of assessment order on the ground that it was passed in the name of non-existent entity. The Commissioner of Income Tax (Appeals) vide impugned order dismissed the grounds raised by the assessee challenging validity of assessment order. On the merits of the addition, the Commissioner of Income Tax (Appeals) granted part relief to the assessee. Against the findings of Commissioner of Income Tax (Appeals), both, the assessee and the Revenue are in appeal before Tribunal. 4. The assessee in appeal before the Tribunal has raised three grounds. Ground No.1 of appeal is against the assessment order made in the name of non-existent entity. Ground No.2 of appeal is against the adjustment made u/s.10A(7) read with section 80IA(10) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner of Income Tax (Appeals) rejected the contentions of the assessee on the ground that in the communication, relevant assessment year was not mentioned and thus, intimation made to the Assessing Officer regarding change of name/merger was just a passive information. The ld. AR submitted that it is a well settle law that assessment made in the name of non-existent entity is unsustainable and without jurisdiction. In support of his submissions, the ld. AR placed reliance on the following decisions: i) Jitendra Chandralal Navlani Vs. Union of India, reported in 80 taxmann.com 107 ( Bombay) ii) Spice Entertainment Limited Vs. Commissioner of Service Tax in ITA No. 475 of 2011 and ITA No.476 of 2011 8. On the other hand, Shri S.B. Prasad representing the Department vehemently defended the impugned order. The ld. DR submitted that the order passed by the Assessing Officer has merged with the order of Commissioner of Income Tax (Appeals). The Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non existing entity is without jurisdiction. 11. The Hon'ble Delhi High Court in the case of Spice Entertainment Ltd. Vs. Commissioner of Service Tax (supra.) while dealing with the case of company that had ceased to exist after merger and the assessment order was passed in the name of non-existent entity held as under: "8. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with the dissolution as per the provisions of the Companies Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. This position is even accepted by the Tribunal in para-14 of its order extracted above. Having regard this consequence provided in law, in number of cases, the Supreme Court held that assessment upon a dissolved company is impermissible as there is no provision in Income-Tax to make an assessment thereupon. In the case of Saraswati Industrial Syndicate Ltd. Vs. CIT, 186 ITR 278 the legal position is explained in the following terms: "The question is whether on the amalgamation of the Indian Sugar Company with the appellant Company, the Indian Sugar C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircuitous route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that "once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved". 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said "dead person_. When notice under Section 143 (2) was sent, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not be made on a invalid return. In the process, the Court observed as under:- "Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a return would not be treated as invalid, if the same "in substance and effect is in conformity with or according to the intent and purpose of this Act". I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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