TMI Blog2018 (4) TMI 1750X X X X Extracts X X X X X X X X Extracts X X X X ..... y holding the same to be invalid for having made in the name of a non-existent company. Additional ground raised by the assessee in this appeal is accordingly allowed. - ITA No.- 199/Del/2015 (Assessment Year: 2010-11) - - - Dated:- 27-4-2018 - Shri P.M. Jagtap, Accountant Member And Smt. Beena A Pillai, Judicial Member Assessee by: Sh. Vishal Kalra, Ms. Reema Malik (Advs.) Revenue by: Sh. Sanjay Kumar Yadav (Sr. D/R) ORDER P.M. Jagtap, This appeal filed by the assessee is directed against the order of Ld. Deputy Commissioner of Income Tax, Circle 10(1) New Delhi (Assessing Officer) dated 28.11.2014 passed under section 143(3) read with Section 144C of the Income Tax Act, 1961, whereby he made an addition of ₹ 33,29,18,277/- to the total income of the assessee on account of transfer pricing adjustment. 2. The assessee in the present case is a company which is engaged in providing Business Processing Outsourcing (BPO) services including finance and accounting, collections, insurance, customer fulfillment, data modeling and analytics support, managed IT services, software solution and e-learning etc. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Infrastructure (Bhopal) Pvt. Ltd. which was not in existence as on 28.11.2014 having already been amalgamated with M/s Genpact India with effect from April 1, 2010 as per the order of the Hon ble Delhi High Court passed on November 19, 2010. He contended that the order passed by AO under section 143(3) read with section 144C in the name of a non-existent entity thus is invalid and the same is liable to be cancelled. He contended that a similar preliminary issue was raised by the assessee in AY 2009-10 before the Tribunal by way of additional ground and after admitting the said additional ground, the Tribunal has decided the issue raised therein in favour of the assessee and quashed the assessment framed by the AO in the name of Genpact Infrastructure (Bhopal) Pvt. Ltd., as the said entity was not in existence on the date of the passing the order by the AO under section 143(3) read with section 144C on 16.1.2013. He also relied on the following judicial pronouncements in support of the assessee s case on this issue that the assessment made in the name of an amalgamating company after the date of amalgamation is bad in law. 1. CIT vs. Micra India (P) Ltd. 231 Taxman 809 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orbed into and blended with another by way of amalgamation, the amalgamating company loses its entity. He contended that the amalgamating company thus no longer remains in existence after amalgamation and since the same cannot be found, the provisions of section 170(2) are applicable whereby assessment after the date of amalgamation can validly be made only in the name of amalgamated company being a successor. He contended that this aspect has already been appreciated by the Hon ble Delhi High Court at least in 3 cases viz Dimension Apparels (P) Pvt. Ltd. (Supra), Micra India (P) Ltd. (Supra), Maruti Suzuki (Supra) and after considering the provisions of sub section (1) and (2) of section 170, the assessment made in the name of amalgamating company after the date of amalgamation have been held to be invalid being made in the name of the a non- existent entity. 7. We have considered the rival contentions and perused the material available on record. It is observed that a similar preliminary issue challenging the validity of order passed by the AO under section 143 (3) read with section 144C was raised by the assessee by way of an additional ground before the Tribunal for A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of amalgamation can validly be made only in the name of amalgamated company being a successor as per the provision of section 170(2). 9. In the case of Maruti Suzuki (Supra), the erstwhile company Maruti Suzuki Powertrain India Ltd. was amalgamated with effect from 01.04.2012 vide an order by the Hon ble High Court on 29.1.2013. On 29.12.2015, the AO passed the assessment order u/s 143(3) read with section 144C of the Act for AY 201112 in the name of Maruti Suzuki Powertrain India Ltd. Since M/s Maruti Suzuki Powertain India Ltd. was not in existence on 29.12.2015 having already been amalgamated with effect from 01.04.2012, the order passed by the AO under section 143(3) read with section 144C was cancelled by the Tribunal as the same was passed in the name of the non-existent company. The decision of the Tribunal was challenged by the assessee in the appeal filed before the Hon ble Delhi High Court and while admitted the same, the following question was framed by their lordships Did ITAT misapply the provision of section 170(2) of the Income tax Act in the circumstances of the case while concluded that the assessment order was not tenable was having b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 was noticed and mentioned in the tax evasion report, the reason to believe recorded by the Assessing Officer, the approval obtained from the Principal Commissioner and the order passed u/s 127 of the Act. It was also noted by the Hon ble Delhi High Court that Permanent Account Number of the limited liability partnership was also mentioned in some of these documents. He has submitted that keeping in view this substantial and affirmative material and evidence on record, the mistake in issuing the notice u/s 148 in the name of erstwhile company M/s Sky Light Hospitality Pvt. Ltd. was held to be an irregularly and procedural/technical lapse by the Hon ble Delhi High Court which was curable u/s 292B. As further pointed out by him, the issue involved in the case of Sky Light Hospitality LLP (Supra) relating to validity of notice u/s 148 was also different than the issue involved in the present case relating to the validity of assessment made in the name of non-existent entity and this distinguishing aspect was taken note of by the Hon ble Delhi High Court in the case of Sky Light LLP (Supra) when the decisions of the Court in the case of Spice Enfotainment Ltd. and Dimension Apparel ..... 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