TMI Blog2021 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the participation in the proceedings as contended by the ld. DR, in our opinion, participation in the proceedings by the assessee in such circumstances cannot operate as an estoppels against law, thus, the final assessment as framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which would be cured by invoking the provisions of Section 292B - framing of final assessment against a non-existent company goes to the root of the matter which is not a procedural irregularity, but a jurisdictional defect. - Decided in favour of assessee. - ITA Nos.443/PUN/2015, 477 & 557/PUN/2016 & 44/PUN/2017 - - - Dated:- 7-9-2021 - SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER Assessee by : Shri Ajit Kumar Jain Shri Siddhesh Chaugule Revenue by : Shri Naveen Gupta ORDER PER S.S. VISWANETHRA RAVI, JM : ITA No. 443/PUN/2015 by the assessee against the final assessment order dated 27-02-2015, ITA No. 477/PUN/2016 by the assessee and ITA No. 557/PUN/2016 by the Revenue against the final assessment order dated 29-01-2016 passed by the DCIT, Circle-11, Pune/AO u/s. 143(3) r.w.s. 144C(13) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed in the name of non-existent entity is bad under law. The ld. DR submits that the assessee participated in all the proceedings right from TPO, DRP and final assessment proceedings, having participated, the assessee is not entitled to raise the additional ground seeking to quash the final assessment order contending it is not maintainable as it was passed on non-existent entity. The ld. DR vehemently relied on provisions u/s. 292B of the Act. 7. Heard both the parties and perused the material available on record. The assessee filed return of income in the name of Honeywell Turbo (India) Private Limited having PAN AABCH5865J on 30-09-2010 which is at Page No. 1 of the paper book-1 containing Page Nos. 1 to 491. We note that the said assessee Honeywell Turbo (India) Private Limited merged with Honeywell Turbo Technologies (India) Private Limited vide order dated 05- 07-2013 of Hon ble High Court of Bombay. The Hon ble High Court of Bombay approved the appointed dated as 01-04-2012. Therefore, it is clear as and from the effective date (appointed date) the proceedings shall be continued and enforced by or against the Transferee Company in the same manner and to the same ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved is null and void. Further, the Hon ble Supreme Court held the passing of assessment order against the amalgamating company is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B of the Act. In the present case, despite the fact that the DCIT/AO was informed of the amalgamating company having ceased to exist in consequence of the approved scheme of amalgamation by the Hon be High Court of Bombay, the final assessment order and demand notice was issued in its name is against the legal principle that the amalgamating company (Honeywell Turbo (India) Private Limited) ceased to exist upon the approved scheme by the Hon ble High Court of Bombay. Regarding the participation in the proceedings as contended by the ld. DR, in our opinion, participation in the proceedings by the assessee in such circumstances cannot operate as an estoppels against law, thus, the final assessment as framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which would be cured by invoking the provisions of Section 292B of the Act, thus, in view of the facts and circumstances of the case, the framing of final assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Honeywell Turbo (India) Private Limited on which date there was no order passed by the Hon ble High Court of Bombay approving the scheme of amalgamation of Honeywell Turbo (India) Private Limited with Honeywell Turbo Technologies (India) Private Limited. The ld. DR raised a point since the notice u/s. 142(1) of the Act issued in the correct name as no order effecting amalgamation is enforced. He vehemently argued the facts in this case are different from the facts in A.Y. 2010-11 as the decision of Hon ble Supreme Court in the case of Maruti Suzuki India Limited is not applicable as in the said case notice was issued in the name of merging company being aware of the amalgamation thereon. We note that the assessee informed the AO about the approval of amalgamation scheme by the Hon ble High Court of Bombay vide its intimation letter dated 03-09-2013 but however the consequential proceedings like TP order u/s. 92CA, draft order u/s. 143(3) r.w.s. 144C of the Act were passed on non-existing entity vide order dated 28-01-2015 and 31-03-2015, respectively which are at Page Nos. 39 and 114 of the paper book. Therefore, it is clear having in the knowledge about the merger of Honeywel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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