TMI Blog2020 (7) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... )-4, New Delhi for Assessment Year 2014-15. 2. The grounds of appeal are as under:- 1. That on the facts and in the circumstances of the case and in law, the Commissioner of Income Tax (Appeals)-4, Delhi [ CIT (A) ] erred in upholding the action of the Assessing Officer ( AO ) in framing an assessment on a nonexistent entity, i.e., Genpact India, bearing PAN AAACG9163H. 2. That on the facts and in the circumstances of the case and in law, the CIT (A) erred in upholding the action of the AO in framing assessment in the name of the amalgamating company, by holding the same to be a curable defect as per Section 292B of the Income-tax Act, 1961 (the Act ). 3. That on the facts and in the circumstances of the case and in law, the CIT(A) erred in holding that by virtue of section 124 of the Act, the Appellant could not raise a challenge to the validity of the order framed on a nonexisting person. 4. That on the facts and in the circumstances of the case and in law, the CIT (A) erred in upholding the action of the AO in bringing to tax, an amount of ₹ 26,25,00,00,000/-, being consideration paid by the Appellant for buy-back of shares under section 391 of Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act dated 03.09.2015 was issued to the assessee company and duly served upon the assessee. Assessee company thereafter filed a revised return of income under Section 139(5) of the Income Tax Act, 1961 electronically on 31.03.2016 declaring income of ₹ 599,94,81,170/- under normal provisions of the Act wherein, inter-alia, unrealized export proceeds which were excluded from export turnover and deduction under Section 10AA of the Act was recomputed. Thereafter, fresh notice under Section 142(1) was issued on 29.07.2016 and served upon the assessee. In response to the notices, CAs/ARs appeared from time to time and filed the requisite details before the Assessing Officer. Genpact India merged into another company, now named as Genpact India Private Limited i.e. assessee herein with effect from 30.04.2016 (with the appointed date being 01.04.2015) vide order dated 17.08.2015 by Hon ble High Court at Telangana and Andhra Pradesh as well as vide order dated 18.03.2016 by Hon ble Delhi High Court. This fact of merger/amalgamation was mentioned by the Assessing Officer in para 2 of the Assessment order. The Assessment was completed on 31.12.2016 u/s 143(3) of the Act by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Amalgamation Order as sanctioned by the Hon ble High Court of Delhi and Hon ble High Court of Telangana and Andhra Pradesh along with copies of PAN of Genpact India and detail of the jurisdictional Assessing Officers was placed by the assessee before the Revenue authorities. The Ld. AR submitted that the assessment framed by the Assessing Officer on the amalgamating company is void ab initio. The Ld. AR relied upon the following decisions of the various High Court and the Apex Court as well as the Tribunal: i) Maruti Suzuki India Ltd. vs. DCIT ITA No. 902/Del/2017 dated 06.04.2017 ii) PCIT vs. Maruti Suzuki India Limited (2019) 416 ITR 613 (SC) iii) Genpact Infrastructure (Bhopal) Pvt. Ltd. (Now merged with Genpact India) v. DCIT (ITA No. 199/Del/2015 dated 27.04.2018 Tri. iv) Genpact Infrastructure (Kolkata) Pvt. Ltd. (Now merged with Genpact India) v. DCIT (ITA No. 198/Del/2015 dated 27.04.2018 Tri. v) PCIT v. Genpact India (previously known as Genpact Infrastructure (Bhopal) Private Limited)(ITA 168/2019, CM Appl. 40543/2019 order dated 17.09.2019) Delhi High Court vi) PCIT v. Genpact India (previously known as Genpact Infrastructure (Kolkata) Private Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein by the assessee that Genpact India (a wholly owned subsidiary of Empower) has, in the 68th meeting of Board of Approval (BoA) for SEZs held on December 30, 2015, obtained the approval of the BoA for change in the entrepreneurship of its SEZ units to Empower. The said letter also mentioned that the aforementioned scheme has been allowed by the Hon ble High Court of Judicature at Hyderabad for the state of Telangana and the state of Andhra Pradesh (vide order dated 17.08.2015 in CP No. 174 of 2015) and the Hon ble High Court of Delhi at New Delhi (vide order dated March 18, 2016 in CP No. 703 of 2015). The copies of Amalgamation Order as sanctioned by the Hon ble High Court of Delhi and Hon ble High Court of Telangana and Andhra Pradesh along with copies of PAN of Genpact India and detail of the jurisdictional Assessing Officers was placed by the assessee before the Revenue authorities. The reliance upon the decision of the Hon ble Supreme Court in case of Maruti Suzuki India Ltd. (Supra) by the Ld. AR is apt in the present case. The Hon ble Supreme Court observed in para 19 as follows: 19. (iii) Thirdly, the consequence of the scheme of amalgamation appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to make an assessment in pursuance of the notice under Section 143 (2). The notice was issued in the name of the amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company MSIL had addressed a communication to the assessing officer intimating the fact of amalgamation. In the above conspectus of the facts, the initiation of assessment proceedings against an entity which had ceased to exist was void ab initio. In the present case also the amalgamating company i.e. Genpact India was not in existence at the time of conducting assessment proceedings as well as on the date of passing Assessment Order. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Hence, the Assessment proceedings as well as the Assessment order itself are void ab initio. Therefore, assessment order is set aside. We allow Ground Nos. 1, 2 3 of the appeal filed by the assessee. There is no need to give any finding relating to the other issues as the assessment order itself is void ab initio. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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