TMI Blog2021 (10) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 329 - ITAT MUMBAI] wherein under similar facts and circumstances, this Tribunal had quashed the entire assessment stating that assessment order passed in the hands of a non-existent entity has no sanctity of law, therefore, the same cannot be sustained and is hereby quashed - Decided in favour of assessee. - ITA No. 7066/Mum/2019 - - - Dated:- 20-10-2021 - SHRI M.BALAGANESH, ACCOUNTANT MEMBER And SHRI AMARJIT SINGH, JUDICIAL MEMBER Assessee by : Shri K. Kaushal Ms. Hirali Desai Revenue by : Shri Mehul Jain ORDER PER M. BALAGANESH (A.M): This appeal in ITA No.7066/Mum/2019 for A.Y.2016-17 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-24, Mumbai in appeal No.CIT(A)-24/ITO-15(1)(1)/it-307/2018-19 dated 26/08/2019 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 24/12/2018 by the ld. Income Tax Officer-15(1)(1), Mumbai (hereinafter referred to as ld. AO). 2. Apart from the regular grounds of appeals, we find assessee has raised the additional ground vide letter dated 19/08/2021 which is as under:- 6. On the facts and in the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for AY 2016-17. 3.2. Immediately thereafter, on 27/07/2017, the Jurisdictional Assessing Officer was given a notice (along with a copy of the scheme of amalgamation) for seeking objections on the proposed scheme of amalgamation in terms of section 230(1) and section 230(5) of the Companies Act, 2013. Vide order dated 07/02/2018, the Hon'ble NCLT, Mumbai bench sanctioned the scheme of amalgamation of Arpeo Data Research Private Limited with White Crow Research Private Limited with effect from 1st April 2017. Pursuant to the above, Arpeo Data Research P. Ltd. got amalgamated into White Crow Research P. Ltd., the appointed date being 01/04/2017. Accordingly, White Crow Research P. Ltd. became a successor to Arpeo Data Research P. Ltd. (hereinafter referred to as the assessee') and Arpeo Data Research P ltd ceased to exist. 3.3. It is not in dispute that M/s. Arpeo Data Research Pvt. Ltd., got amalgamated with White Crow Research Pvt. Ltd. w.e.f. 01/04/2017 vide NCLT, Mumbai order dated 07/02/2018. We find that when the scheme of amalgamation was pending before the Hon ble NCLT, Mumbai, the assessee had indeed issued notice in terms of Section 230 of the Companies Act 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and the said submissions are reproduced hereunder for the sake of convenience:- 3. In this respect comments on additional ground on the facts and circumstances of case and in law, the Ld. Assessing Officer erred in passing the assessment order passed under section 143(3) of Income Tax Act 1961 dated 24 December 2018 in the name of 'Arpeo Data Research Private Limited', an entity which was not in existence on the date of passing the impugned order on account of its amalgmation with appellant is as follows: (a) As on the date the PAN- AAJCA3506P on the system reveal the name of M/s Arpeo Data Research I'M. Lid. Tins show PAN Number is in existence. (b) The Penalty Order dated 21.06.2019 and other communications was done on this PAN and name i.e. (M/s Arpeo Data Research Pvt Ltd.) without raising any objections from assessee s side. (c) Application for stay of Demand dated October 30,2019 mention the PAN No. AAJCA35U6F. (d) Tax Payment was done in name of M/s Arpeo Data Research Pvt. Ltd on 11-02-2019. I his show Bank transactions were done in name of entity. (e) Form-35 for Appeal to Ld. CTT(A) dated 22.01.2019 was filed in name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had quashed the entire assessment by holding as under:- 9. We find that the issue involved in the present appeal lies in a narrow compass i.e. as to whether or not the assessment order passed in the name of a non-existent company would be sustainable in the eyes of law. We find that the issue hereinabove involved is no more res integra pursuant to the judgement of the Hon'ble Supreme Court in the case of Maruti Suzuki India Ltd. (supra). We shall briefly cull out the facts which were involved in the case before the Hon'ble Apex Court. The assessee was a joint Venture between Suzuki Motor Corporation and Maruti Suzuki India Ltd. Initially, the assessee upon incorporation was known as Suzuki Motor India Ltd. Subsequently, w.e.f 8-2-2015, its name was changed to Suzuki Powertrain India Ltd. On 28-11-2012, the assessee had filed its return of income in the name of Suzuki Powertrain India Ltd. (no amalgamation having been taken place on the relevant date). On 29th January, 2013 a scheme for amalgamation of Suzuki Powertrain India Ltd. and Maruti Suzuki India Ltd. was approved by the High court w.e.f 1-4-2012. As per the terms of the approved scheme the liabilities and duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the revenue was dismissed. In fact, we find that the Hon'ble Supreme Court in the case of Spice Enfotainment Ltd. (supra), had upheld the order of the Hon'ble High Court of Delhi, which while allowing the appeal of the assessee, had concluded, that where the A.O had framed the assessment in the hands of a non-existent entity, the proceedings and the assessment order so passed would be clearly void and could not be classed as a procedural irregularity of a nature which could be cured by invoking the provisions of sec. 292B of the Act. The Hon'ble High Court of Delhi while concluding as hereinabove had relied on the judgment of the Hon'ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. v. CIT [1990] 53 taxmann.com 92/186 ITR 278, wherein it was observed, that it was trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. The Hon'ble Supreme Court while concluding as hereinabove had observed as under:- The question is whether on the amalgamation of the India Sugar Company with the appellant Company, the Indian Sugar Company continued to have its entity and was alive for the purposes of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order was passed would thus be non-est in the eyes of law. In fact, as observed by us hereinabove, involving identical fact situation in the assessee's own case for the immediately succeeding year i.e. A.Y 2011-12, we had quashed the order passed by the Pr. CIT under sec. 263, dated 24-10-2017 on two counts viz. (i) that, the order of revision u/s 263 was passed by the Pr. CIT in the name of M/s Satyam Computers Services Ltd., i.e. a company which was non-existent on the date of passing of the order; and (ii) that, the Pr. CIT in exercise of his power under Sec. 263 was divested on his jurisdiction of revising an assessment order which in itself was non-est in the eyes of law. Accordingly, as per the settled position of law laid down by the Hon'ble Supreme Court in the case of Maruti Suzuki India Ltd. (supra) and Spice Enfotainment Ltd. (supra), we are of the considered view that as the assessment order passed in the hands of a non-existent entity viz. M/s Satyam Computer Services Ltd., has no sanctity of law, therefore, the same cannot be sustained and is hereby quashed. 10. As we have quashed the assessment order for want of jurisdiction, therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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