TMI Blog2020 (4) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income filed for the year under consideration. - Decided in favour of assessee. - ITA No.1153/Bang/2013 - - - Dated:- 14-2-2020 - Shri B.R Baskaran, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Appellant : Shri Percy Pardiwala, Sr. Counsel For the Respondent : Shri Pradeep Kumar, CIT ORDER PER B.R BASKARAN, ACCOUNTANT MEMBER : The appeal of the assessee is directed against the common order dated 11.03.2013 passed by Ld CIT(A), Mysore and it relates to the assessment year 2005-06. 2. Though the assessee has raised many grounds and an additional ground, the Ld A.R restricted his argument on a legal issue, viz., whether the impugned assessment order passed by the AO is valid in law? 3. We heard the parties and perused the record. The facts necessary for adjudication of above said legal issue, which were brought to our notice by Ld A.R, are summarized below:- (a) The company M/s Herbertson Ltd merged with M/s Mcdowell Co Ltd with effect from 1.4.2005 (appointed date). The name of amalgamating company was changed from M/s Mcdowell Co Ltd to M/s United Spirits Ltd. The amalgamation scheme was approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y issuing notice u/s 148 of the Act. The notice was issued to the following name:- M/s Herbertsons Ltd (Since amalgamated with M/s Mc Dowell Company Ltd; now renamed as M/s United Spirits Ltd.) UB Tower, 24 Vittal Mallya Road, Bangalore 560 001. (h) Accordingly, the assessing officer passed the impugned assessment order u/s 143(3) r.w.s 147 of the Act in the name of M/s Herbertsons Ltd further noting the amalgamation details in bracket as mentioned in the preceding paragraph. (i) Before Ld CIT(A), the assessee contended that the impugned assessment order has been passed on a non-existent company. Accordingly it was submitted that the impugned assessment order cannot be considered as an assessment done in the hands of M/s United Spirits Ltd. The Ld CIT(A), however, rejected the contentions of the assessee with the following observations:- 3.7 Clearly in the case of the appellant, all the conditions are satisfied. There is a finding based on which the reopening was done and restrictions imposed in subsection 2 are not attracted. Hence, this argument of the appellant is legally not correct. I do not find strength in the argument of the appellant that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) PCIT vs. Maruti Suzuki India Ltd (2019)(107 taxmann.com 375)(SC) (b) Intel Technology India (P) Ltd (2015)(380 ITR 272)(Kar). 5. The Ld A.R further submitted the noting made by the assessing officer about the merger with M/s Mc Dowell Company Ltd and change of name to M/s United Spirits Ltd along with the name of M/s Herbertsons Ltd will not alter the legal position. In support of this proposition, he relied upon the decision rendered by Hon'ble Supreme Court in the case of M/s Maruti Suzuki Ltd (supra). 6. On the contrary, the Ld D.R supported the view taken by Ld CIT(A) on this issue. 7. We notice that the Hon'ble Karnataka High Court has considered an identical issue in the case of M/s Intel Technology India (P) Ltd (supra). The facts of the case pertaining to the assessee before Hon'ble Karnataka High Court are that a company named M/s Software Silicon Systems India P Ltd (SSL Ltd) filed its return of income for AY 2003-04 on 28.11.2003. The said company was amalgamated with M/s Intel Technology India P Ltd with effect from 1.4.2004, vide order dated 28-05-2004 passed by Hon'ble Karnataka High Court. The AO, however, passed the assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly after the respondent/company (which had succeeded M/s SSS Limited) had given notice of amalgamation to the department on 29.6.2004. It is thus submitted that after the issuance of the demand notice, it was for the department to substitute the respondent company in the proceedings for assessment and by not having done so, the entire assessment proceedings would be null and void. In support of his submission, learned counsel for the respondent has placed reliance on a Division Bench decision of the Delhi High Court rendered in Spice Infotainment Ltd. v. CIT [IT Appeal Nos. 475 476 of 2011, dated 3-8-2011]. It is contended that the facts of the present case are similar, if not identical, to the facts in the case of Spice Infotainment Ltd. ( supra ) wherein the Delhi High Court has, after considering the various provisions of the Income Tax Act as well as certain decisions of the Apex Court and other High Courts, clearly held that the framing of assessment against the non-existing entity/person goes to the root of the matter which is not a procedural irregularity, but, a jurisdictional defect and as there cannot be any assessment against the dead person. 7. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g officer chose to pass the assessment order in the name of Suzuki Power Train India Ltd . Under these set of facts, the Hon'ble Supreme Court held as under:- In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppels against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while issuing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the Spice Enfotainment. 9. In the instant case, the details of amalgamation were noticed by the revenue in the original a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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