SHELL TECHNOLOGY INDIA P. LTD, V. ADDL CIT RG 1(2),

ITA 1055/BANG/2011

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7984 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 14-10-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Keywords: Procedural lapse; Scheme of amalgamation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 1055/BANG/2011 : A.Y : 2007 - 08 M/S. SHELL INDIA MARKETS PRIVATE LIMITED (ERSTWHILE SHELL TECHNOL OGY INDIA PVT. LTD.) TRENT HOUSE, 1 ST FLOOR, G - BLOCK, PLOT NO. C - 60, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 51 PAN : AAICS1404P (APPELLANT) VS. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 12, BANGALORE (RESPONDENT) ITA NO. 772/MUM/2013 : A.Y : 20 08 - 09 M/S. SHELL INDIA MARKETS PRIVATE LIMITED (ERSTWHILE SHELL TECHNOLOGY INDIA PVT. LTD.) TRENT HOUSE, 1 ST FLOOR, G - BLOCK, PLOT NO. C - 60, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 51 PAN : AAICS1404P (APPELLANT) VS. A SSISTANT COMMISSIONER OF INCOME TAX , LARGE TAXPAYERS UNIT, MUMBAI (RESPONDENT) APPELLANT BY : SHRI PERCY J. PARDIWALA RESPONDENT BY : SHRI V. JENARDHANAN DATE OF HEARING : 16 /11/2017 DATE OF PRONOUNCEMENT : 20 /1 2 /2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED ARE TWO APPEAL S FILED BY THE ASSESSEE FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 AND SINCE THE TWO APPEALS INVOLVE A COMMON 2 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. ISSUE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. IN BOTH THE A PPEALS, A PERTINENT AND PRELIMINARY ISSUE HAS BEEN RAISED WHICH GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSING OFFICER IN FRAMING THE ASSESSMENT, AND IN THIS CONTEXT, A COMMON A DDITIONAL GROUND OF APPEAL HAS BEEN RAISED, WHICH READS AS UNDER : - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE AO/DRP/TPO ARE BAD IN LAW AND VOID AB INITIO AS THE SAME HAVE BEEN PASSED ON A NON - EXISTENT ENTITY, NAMELY, SHELL TECHNOLOGY INDIA PVT. LTD. 3. AT THE TIME OF HEARING, INSOFAR AS THE ADMISSION OF THE SAID ADDITIONAL GROUND OF APPEAL IS CONCERNED, THE CASE MADE OUT WAS THAT THE SAID GROUND INVOLVES A POINT OF LAW FOR WHICH THE NECESSARY FACTS ARE AVAILABLE FROM THE RECORD ITSELF AND, THEREFORE, IT DESERVES TO BE ADMITTED FOR ADJUDICATION FOLLOWING THE RATIO OF THE JUDGMENTS OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., 229 ITR 383 (SC) AND JUTE CORPORATION OF INDIA LTD. , 187 ITR 688 (SC) . ON THIS ASPECT, IT IS QUITE CLEAR THAT THE PLEA IN THE A DDITIONAL GROUND IS THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THE NAME OF M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IS VOID - AB - INITIO BECAUSE ON THE DATE OF THE ASSESSMENT ORDER, THE SAID CONCERN HAD CEASED TO EXIST ON ACCOUNT OF ITS MERGER WITH M/S. SHELL INDIA MARKETS PVT. LTD. W.E.F. 01.04.2008. BE THAT AS IT MAY, IT IS QUITE CLEAR THAT THE AFORESAID PLEA INVOLVES A POINT OF LAW AND THE NECESSARY FACTS REQUIRED TO ADJUDICATE THE SAME A RE EMERG ING FROM THE RECORD AND NO FRESH INVESTIGATION OF FACTS IS REQUIRED AND, THEREFORE, FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL 3 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. POWER CO. LTD. ( SUPRA ) , THE SAME DESERVES TO BE ADMITTED. THIS ASP ECT WAS MADE CLEAR AT THE TIME OF HEARING AND ACCORDINGLY, THE RIVAL COUNSELS WERE HEARD ON THE MERIT S OF THE SAID ASPECT AT THE THRESHOLD ITSELF. 4. ALTHOUGH THE FACTS AND CIRCUMSTANCES IN RELATION TO THE AFORESAID ASPECT STAND ON SIMILAR FOOTING IN BOTH THE ASSESSMENT YEARS, SO HOWEVER, WE TAKE - UP FOR CONSIDERATION FIRSTLY , THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 09 IN ITA NO. 772/MUM/ 2013 WHICH IS DIRECTED AGAINST THE ORDER DATED 30.11.2012 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S 14 4C(13) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) GIVING EFFECT TO THE DIRECTIONS OF DISPUTE RESOLUTION PANEL - II, MUMBAI (DRP) DATED 27.09.2012. 5. T HE RELEVANT FACTS ARE THAT THE APPELLANT IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPA NIES ACT, 1956 AND IS, INTER - ALIA , ENGAGED IN DOWNSTREAM OIL OPERATIONS SUCH AS RETAILING OF PETROLEUM, SUPPLY OF LUBRICANTS AND BITUMEN AND IT ALSO HOUSES TWO CAPTIVE CENTRES IN BANGALORE AND CHENNAI. THE ERSTWHILE ASSESSEE, M/S. SHELL TECHNOLOGY INDIA P VT. LTD. FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 09 ON 29.09.2008 DECLARING AN INCOME OF RS.1,11,53,496/ - , WHICH WAS SUBJECT TO A SCRUTINY ASSESSMENT AND VIDE ORDER DATED 30.11.2012 PASSED U/S 143(3) R.W.S. 144C(13) OF THE ACT, THE TOTAL INCOME HAS BEEN ASSESSED AT RS.60,87,93,393/ - . IT HAS BEEN POINTED OUT BY THE LEARNED REPRESENTATIVE WITH REFERENCE TO THE MATERIAL PLACED IN THE PAPER BOOK THAT THE ERSTWHILE M/S. SHELL TECHNOLOGY INDIA PVT. LTD. MERGED WITH THE APPELLANT, I.E. M/S. SHELL IND IA MARKETS PVT. LTD. W.E.F. 0 1. 0 4.2008 IN TERMS OF A SCHEME OF AMALGAMATION APPROVED BY THE RESPECTIVE HIGH COURTS, NAMELY HON'BLE HIGH 4 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. COURT S OF MADRAS AND KARNATAKA. OUR ATTENTION WAS DRAWN TO PAGES 539 TO 563 OF THE PAPER BOOK , WHEREIN IS PLACED COPY O F THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT DATED 24.02.2010 AS ALSO TO PAGES 565 TO 573 OF THE PAPER BOOK , WHEREIN IS PLACED COPY OF THE JUDGMENT OF THE HON'BLE KARNATAKA HIGH COURT DATED 22.02.2010 IN TERMS OF WHICH THE SCHEME OF AMALGAMATION IN THE MATTER OF SECTIONS 39 1 TO 394 OF THE COMPANIES ACT, 1956 HAS BEEN APPROVED. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE ALSO REFERRED TO A COMMUNICATION OF THE ASSESSEE DATED 21.09.2010, COPY OF WHICH HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 536 TO 538 , WHEREBY THE ASSESSING AUTHORITY , IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2007 - 08, WAS INFORMED THAT M/S. SHELL TECHNOLOGY INDIA PVT. LTD. STOOD MERGED WITH M/S. SHELL INDIA MARKETS PVT. LTD. W.E.F. 0 1. 0 4.2008 IN PURSUANCE TO THE SCHEME OF MERGER HAVING BEEN APPROVED BY THE TWO HON'BLE HIGH COURTS. IT IS ALSO SEEN FROM THE SAID COMMUNICATION THAT THE COPIES OF THE ORDERS PASSED BY THE HON'BLE HIGH COURTS W ERE ALSO FURNISHED TO THE ASSESSING OFFICER, AND THE ASSESSING OFFICER WAS I NFORMED THAT THE MERGED ENTITY IS CALLED SHELL INDIA MARKETS PVT. LTD.. IN THIS BACKGROUND, THE CONTENTION OF THE ASSESSEE IS THAT THE SUBSEQUENT ASSESSMENT FINALISED BY THE ASSESSING OFFICER ON 30.11.2012 (SUPRA) IN THE NAME OF M/S. SHELL TECHNOLOGY I NDIA PVT. LTD. IS ERRONEOUS IN LAW, AS IT IS MADE IN THE NAME OF A NON - EXISTENT ASSESSEE. IT WAS, THEREFORE, CONTENDED HAVING REGARD TO THE FOLLOWING JUDICIAL RULINGS - I) M/S. INSTANT HOLDINGS LTD. (SUCCESSOR TO INSTANT TRADING & INVESTMENT COMPANY LT D.), ITA NOS. 4593 & 4748/MUM/2011 DATED 09.03.2016 5 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. II) M/S. SIEMENS TECHNOLOGY SERVICES PVT. LTD. (FORMERLY KNOWN AS SIEMENS CORPORATE FINANCE PVT. LTD.), ITA NO. 6313/MUM/2012 DATED 16.11.2016 III) CIT VS. DIMENSION APPARELS (P.) LTD., 370 ITR 288 (DELHI ) THE ASSESSMENT ORDER PASSED IN THE NAME OF A NON - EXISTENT ASSESSEE IS VOID - AB - INITIO AND IS LIABLE TO BE QUASHED . 6. THE LD. DR APPEARING FOR THE REVENUE HAS NOT CONTROVERTED THE FACTUAL MATRIX BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE ASSESSE E, BUT REITERATED THAT IT WAS A PROCEDURAL LAPSE AND, THEREFORE, THE ASSESSMENT COULD NOT BE HELD TO BE VOID - AB - INITIO . 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. FACTUALLY SPEAKING, IT CLEARLY EMERGES FROM RECORD THAT THE ASSESSMENT ORDER DA TED 30.11.2012 (SUPRA) HAS BEEN PASSED IN THE NAME OF M/S. S HELL TECHNOLOGY INDIA PVT. LTD., A CONCERN WHICH WAS NON - EXISTENT AS ON THAT DATE, HAVING MERGED WITH M/S. SHELL INDIA MARKETS PVT. LTD. CONSEQUENT TO THE SCHEME OF MERGER APPROVED BY THE HON'BLE HIGH COURTS OF KARNATAKA AND MADRAS VIDE ORDERS DATED 22.02.2010 (SUPRA) AND 24.02.2010 (SUPRA) RESPECTIVELY. THE COMMUNICATION OF THE ASSESSEE DATED 21.09.2010 TO THE ASSESSING OFFICER, WHICH IS DULY ACKNOWLEDGED, ALSO EVIDENCES THAT THE ASSESSING OFFICE R WAS MADE AWARE OF THE MERGER HAVING COME INTO EFFECT FROM 1.4.2008. NOW, THE MOOT POINT IS AS TO WHETHER THE ASSESSMENT ORDER DATED 30.11.2012 (SUPRA) MADE IN THE NAME OF A NON - E XISTENT CONCERN IS LEGALLY VALID OR NOT ? 6 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 8. IN THIS CONTEXT, WE MAY FIRST LY NOTICE THAT THE HON'BLE BOMBAY HIGH COURT VIDE ITS ORDER IN WRIT PETITION NO. 1069 OF 2016 DATED 08.06.2016 IN THE CASE OF JITENDRA C HANDRALAL NA V LANI & AN R. HELD THAT FRAMING OF ASSESSMENT IN RESPECT OF A NON - EXISTENT ENTITY GOES TO THE ROOT OF JURISDI CTION OF THE ASSESSING OFFICER , AND THAT AN ORDER PASSED IN THE NAME OF A NON - EXISTENT ASSESSEE IS INVALID. TO THE SIMILAR EFFECT IS THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIMENSION APPARELS ( P. ) LTD. (SUPRA) WHEREIN ALSO IT HAS BEEN HELD THAT FRAMING OF ASSESSMENT ON A NON - EXISTENT ENTITY IS A JURISDICTIONAL DEFECT, AND SUCH AN ASSESSMENT IS LIABLE TO BE QUASHED. AT THE TIME OF HEARING, A REFERENCE WAS ALSO MADE TO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. INSTANT HOLDINGS LTD. (SUPRA) WHEREIN UNDER SIMILAR CIRCUMSTANCES, ASSESSMENT MADE IN THE NAME OF A NON - EXISTENT CONCERN WAS HELD TO BE INVALID AND SET - ASIDE. THE TRIBUNAL IN THE CASE OF M/S. INSTANT HOLDINGS LTD. (SUPRA) REFERRED AND RELIED UPON THE JUDG MENTS OF THE (I) HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE ENTERTAINMENT LTD. VS. CIT, ITA NO. 475 OF 2011 DATED 03.08.2011 ; (II) HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. INTEL TECHNOLOGY INDIA PVT. LTD., 57 TAXMANN.COM 159 ; AND , (III) HON'B LE CALCUTTA HIGH COURT IN THE CASE OF I . K . AGENCIES (P) LTD. VS. COMMISSIONER OF WEALTH TAX, 347 ITR 664 IN COMING TO CONCLUDE THAT AN ASSESSMENT ORDER MADE IN THE NAME OF A NON - EXISTENT CONCERN WAS INVALID AND QUASHED SUCH AN ASSESSMENT. IN OUR CONSIDERE D OPINION, HAVING REGARD TO THE AFORESAID JUDICIAL RULINGS AND THE FACTS OF THE INSTANT CASE, THE ASSESSMENT ORDER DATED 30.11.2012 (SUPRA) MADE IN THE NAME OF THE ERSTWHILE NON - EXISTENT CONCERN, M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IS A NULLITY IN THE EY ES OF LAW AND IS HEREBY QUASHED. 7 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 9. INSOFAR AS THE OBJECTION OF THE LD. DR THAT IT WAS A PROCEDURAL DEFECT IS CONCERNED, THE SAME, IN OUR VIEW, IS QUITE UNTENABLE INASMUCH AS THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF JITENDRA CHANDRALAL NAVLANI & ANR. (SUPRA) HELD THAT SUCH AN ERROR GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSING OFFICER. IN FACT, THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIMENSION APPARELS (P.) LTD. (SUPRA) AS ALSO IN ITS EARLIER JUDGMENT IN THE CASE OF SPICE ENTERTAINMENT LTD . (SUPRA) HAS HELD THAT FRAMING OF ASSESSMENT ON A NON - EXISTENT ENTITY IS A JURISDICTION AL DEFECT WHICH COULD NOT BE CONSTRUED AS A PROCEDURAL DEFECT COVERED BY SEC. 292B OF THE ACT. THEREFORE, THE OBJECTION RAISED BY THE LD. DR IN SUPPORT OF THE IMPUGNED ASSESSMENT ORDER PASSED IN THE NAME OF THE ERSTWHILE NON - EXISTENT M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IS DEVOID OF MERIT AND IS HEREBY REJECTED. 10. IN CONCLUSION, WE QUASH THE ASSESSMENT ORDER DATED 30.11.2012 (SUPRA) AS IT WAS PASSED IN THE NAME OF A NON - EXISTENT CONCERN , AS THE ERSTWHILE CONCERN, NAMELY , M/S. SHELL TECHNOLOGY INDIA PVT. LTD. STOOD MERGED WITH M/S. SHELL INDIA MARKETS PVT. LTD. W.E.F. 1.4.2008 FOLLOWING THE SCHEME OF MERGER HAVING BEEN APPROVED BY THE HON'BLE HIGH COURTS OF KARNATAKA AND MADRAS VIDE ORDERS DATED 22.10.2010 (SUPRA) AND 24.10.2010 (SUPRA) RESPECTIVELY . SINCE WE HAVE APPROVED THE PRELIMINARY PLEA OF THE ASSESSEE, WHICH GOES TO THE ROOT OF THE MATTER, AND THE ASSESSMENT HAS BEEN HELD TO BE A NULLITY, THE NECESSITY OF EXAM INING THE MERITS OF OTHER GROUNDS RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL IS OBVIATED. THUS, INSOFAR AS THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 09 IS CONCERNED, THE SAME STANDS ALLOWED, AS ABOVE. 8 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 11. NOW, WE MAY TAKE - UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 WHICH IS DIRECTED AGAINST AGAINST THE ORDER DATED 07.10.2011 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S 144C(13) OF THE ACT GIVING EFFECT TO THE DIRECTIONS OF DRP DATED 27.09.2011. 12. ALTHOUGH , THE SUBSTANTIVE DISPUTE HEREIN ALSO REMAINS THE SAME, NAMELY , THAT THE ASSESSMENT HAS BEEN FRAMED IN THE NAME OF A NON - EXISTENT CONCERN, BUT THE LD. DR HAS TRIED TO DISTINGUISH THE FACTUAL MATRIX IN THIS YEAR FROM THAT PREVAILING IN ASSESSMENT YEAR 2008 - 09, WHICH WE HAVE DEALT WITH IN THE EARLIER PARAGRAPHS. IN ORDER TO APPRECIATE THE STAND OF THE REVENUE IN THE INSTANT ASSESSMENT YEAR OF 2007 - 08, THE FOLLOWING DISCUSSION IS RELEVANT. IN THIS CASE, THE PLEA OF THE LD. DR IS THAT THE ASSESSMENT ORDER HAS BEEN MADE IN SUBS TANCE AND EFFECT IN CONFORMITY WITH THE REQUIREMENTS OF LAW INASMUCH AS THE ASSESSING OFFICER HAS USED THE CORRECT NOMENCLATURE IN WRITING THE NAME OF THE ASSESSEE ALONGWITH THE NAME OF THE MERGED ENTITY IN THE ASSESSMENT ORDER . IN ORDER TO PROPERLY APPRE CIATE THE SAID PLEA, WE REPRODUCE HEREINAFTER THE MANNER IN WHICH THE ASSESSMENT HAS BEEN MADE, WHICH IS AS UNDER : - NAME OF THE ASSESSEE : M/S. SHELL TECHNOLOGY INDIA PVT. LTD. (NOW CALLED AS SHELL INDIA MARKETS PVT. LTD.) 1 3 . ON THE ABOVE BASIS, FIRSTLY, IT IS CANVASSED THAT THE NAME OF THE NEW MERGED ENTITY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. ALSO FEATURES AND, THEREFORE, THE ASSESSMENT IS IN THE NAME OF NEW ENTITY. IN THE ALTERNATIVE, IT IS CONTENDED THAT A MERE OMISSION ON THE PART OF THE ASSESSING OFFICER TO MENTION THE NAME OF THE AMALGAMATED ENTITY, M/S. SHELL INDIA MARKETS PVT. 9 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. LTD. IN THE CORRECT SEQUENCE IN PLACE OF M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IS ONLY A PROCEDURAL DEFECT AND, THEREFORE, THE ASSESSMENT ORDER BE CONSTRUED TO HAVE BEEN VALIDLY PASSED AND CANNOT BE SAID TO HAVE BEEN PASSED IN THE NAME OF A NON - EXISTENT PERSON. 1 4 . IN THIS CONTEXT, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE PLEA OF THE LD. DR DOES NOT DISTRACT FRO M THE FACT THAT THE ASSESSM ENT HA S INDEED BEEN MADE ON A NON - EXISTENT CONCERN AND VEHEMENTLY CANVASSED THAT IT DESERVES TO BE TREATED ON THE SAME FOOTING AS IN ASSESSMENT YEAR 2008 - 09 . OUR AT TENTION WAS DRAWN TO THE DISCUSSION MADE BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF MIC RA INDIA ( P. ) LTD., 231 T AXMAN 809 (DELHI) WHEREBY THE OBJECTIONS SIMILAR TO THAT RAISED BY THE LD. DR HEREIN HAVE BEEN DEALT WITH AND REJECTED . 1 5 . WE HAVE CAREFULLY PERUSED T HE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF MICRA INDIA ( P. ) L TD. (SUPRA) AND FIND THAT THE SAME ALSO DEALS WITH THE ISSUE RELATING TO VALIDITY OF AN ASSESSMENT MADE IN THE NAME OF A CONCERN WHICH HAD CEASED TO EXIST ON THE DATE OF ASSESSMENT ON ACCOUNT OF ITS AMALGAMATION. IN FACT, IN THE CASE OF MICRA INDIA ( P. ) L TD. (SUPRA), THE HON'BLE DELHI HIGH COURT WAS DEALING WITH AN ASSESSMENT MADE IN PURSUANCE TO A NOTICE ISSUED U/S 153C OF THE ACT. AS PER THE HON'BLE HIGH COURT, NOTICE U/S 153C OF THE ACT OUGHT TO HAVE BEEN SENT TO THE NEW ENTITY, AND SINCE SUCH NOTICE W AS NOT SENT TO THE NEW ENTITY, THE ASSESSMENT MADE IN THE HANDS OF THE ERSTWHILE NON - EXISTENT ASSESSEE WAS A NULLITY IN THE EYES OF LAW. SO, HOWEVER, IN THE CONTEXT OF THE CONTROVERSY BEFORE US, THE HON'BLE HIGH COURT NOTED THE MANNER IN WHICH THE ASSESSI NG OFFICER HAD DESCRIBED THE ASSESSEE BEFORE HIM. THE HON'BLE HIGH COURT NOTED THAT THE 10 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. ASSESSING OFFICER RESORTED TO A PECULIAR PROCEDURE OF DESCRIBING THE ORIGINAL ASSESSEE AS THE ONE IN EXISTENCE; THE ORDER ALSO MENTIONED THE TRANSFEREES NAME BELOW T HAT OF M/S. MICRA INDIA PVT. LTD. NOW, THAT DID NOT LEAD TO THE ASSESSMENT BEING COMPLETED IN THE NAME OF THE TRANSFEREE COMPANY. ACCORDING TO THE AO, M/S. MICRA INDIA PVT. LTD. WAS STILL IN EXISTENCE. CLEARLY, THIS WAS A CASE WHERE THE ASSESSMENT WAS C ONTRARY TO LAW, AS HAVING BEING COMPLETED AGAINST A NON - EXISTENT COMPANY.. 1 6 . THE AFORESAID OBSERVATION OF THE HON'BLE DELHI HIGH COURT CLEARLY POINTS OUT THAT A MERE MENTION OF NEW ENTITYS NAME BELOW THAT OF THE ERSTWHILE NON - EXISTENT CONCERN CANNOT B E INTERPRETED TO MEAN THAT THE ASSESSMENT HAS BEEN COMPLETED IN THE NAME OF THE NEW ENTITY. IN OUR CONSIDERED OPINION, THE MANNER IN WHICH THE ASSESSING OFFICER HAS DESCRIBED THE ASSESSEE IN THE INSTANT ASSESSMENT (WHICH HAS BEEN REPRODUCED BY US IN PARA 1 2 EARLIER) CLEARLY POINTS OUT THAT ACCORDING TO HIM , M/S. SHELL TECHNOLOGY INDIA PVT. LTD. CONTINUES TO BE IN EXISTENCE , AND , THUS IT CANNOT BE UNDERSTOOD THAT THE ASSESSMENT HAS BEEN COMPLETED IN THE NAME OF THE NEW ENTITY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. THE RATIO OF THE DISCUSSION BY THE HON'BLE DELHI HIGH COURT, WHICH WE HAVE REPRODUCED ABOVE, CLEARLY SUGGESTS THE FAILURE ON THE PART OF THE ASSESSING OFFICER TO TRANSPOSE THE NEW ENTITY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. AS THE ASSESSEE W HICH HAD TO BE ASSESSED , INSPITE OF HAVING BEEN TOLD THAT THE ERSTWHILE M/S. SHELL TECHNOLOGY INDIA PVT. LTD. WAS NO LONGER IN EXISTENCE. THEREFORE, THE PLEAS OF THE LD. DR THAT THE MANNER OF PUTTING THE NAME OF THE ASSESSEE IN THE ASSESSMENT ORDER REFLEC TS THAT THE ASSESSMENT HAS BEEN MADE IN THE NAME OF THE NEW ENTITY , IS NOT JUSTIFIED AND IS ACCORDINGLY REJECTED. 11 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 1 7 . BEFORE PARTING, WE MAY ALSO REFER TO THE RELIANCE PLACED BY THE LD. DR ON THE DECISION RENDERED BY THE CHENNAI BENCH OF THE TRIBUNAL IN T HE CASE OF M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. IN ITA NOS. 882/MAS/2015 & OTHERS DATED 14.09.2016. IN THE CASE BEFORE THE CHENNAI BENCH, THE RELEVANT FACTS WERE THAT AN ASSESSMENT WAS COMPLETED IN THE NAME OF ONE, M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. THOUGH THE SAID CONCERN STOOD MERGED WITH M/S. ACCENTURE SERVICES PVT. LTD. AS ON THE DATE OF ASSESSMENT. THE PLEA OF THE ASSESSEE BEFORE THE TRIBUNAL WAS THAT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF A NON - EXISTENT CONCERN INSPITE OF THE FACT HAVI NG BEEN BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER AND, THEREFORE, SUCH AN ASSESSMENT WOULD NOT STAND IN THE EYES OF LAW. THE BENCH NOTED THAT WHEN THE APPEAL M EMO WAS INITIALLY FILED BEFORE THE TRIBUNAL, IT WAS IN THE NAME OF M/S. ZENTA KNOWLEDGE SER VICES (P) LTD. AND IT WAS ONLY SUBSEQUENTLY THROUGH AN APPLICATION THAT ASSESSEE PLEADED TO TAKE M/S. ACCENTURE SERVICES PVT. LTD. AS APPELLANT BEFORE THE TRIBUNAL. GOING BY THE ORIGINAL APPEAL FILED, WHICH WAS IN THE NAME OF A NON - EXISTENT CONCERN, I.E. M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. , IT WAS OBSERVED THAT THE APPELLATE PROCEEDINGS DO NOT SURVIVE AS IT COULD NOT HAVE BEEN INITIATED BY A NON - EXISTENT CONCERN. IN THIS MANNER, THE APPEAL OF THE ASSESSEE WAS DISMISSED. THE LD. DR HAS RELIED ON THE AF ORESAID DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL TO POINT OUT THAT EVEN IN THE INSTANT CASE, THE MEMO OF APPEAL ORIGINALLY FILED IN FORM NO. 36B BEFORE THE TRIBUNAL ON 11.11.2011, WHICH READS AS UNDER : - M/S. SHELL TECHNOLOGY INDIA PVT. LTD. (NOW L EGALLY MERGED INTO SHELL INDIA MARKETS PVT. LTD.) 12 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. CAN BE CONSTRUED TO HAVE BEEN FILED BY A NON - EXISTENT CONCERN, NAMELY, M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IT WAS, THEREFORE, CONTENDED THAT FOLLOWING THE RATIO OF THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. (SUPRA) , THE APPEAL OUGHT TO BE TAKEN AS HAVING FILE D BY A NON - EXISTENT CONCERN AND, ACCORDINGLY DISMISSED. IN THIS CONTEXT, THE LD. DR FURTHER POINTED OUT THAT SUBSEQUENT REVISION OF FORM NO. 36B BY THE ASSESSEE ON 22.05.2015 DURING THE PENDENCY OF PROCEEDINGS OUGHT NOT TO BE ENTERTAINED. 1 8 . ON THIS POINT, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ERROR IN NOT CORRECTLY MENTIONING THE NAME IN THE ORIGINAL MEMO OF A PPEAL WAS ONLY A DEFECT BECAUSE THE APPEAL WAS SIGNED AND FILED BY THE SUCCESSOR COMPANY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. , AS IS EVIDENT FROM THE LA TT ER PART OF FORM NO. 36B. IT IS POINTED OUT THAT THIS ERROR HAS ALSO BEEN SUBSEQUENTLY RECTIFIED B Y THE ASSESSEE BY SUO MOTO FILING A REVISED FORM NO. 36B ON 22.05.2015 AND, THEREFORE, THE RATIO OF THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL WOULD NOT BE APPLICABLE IN THE INSTANT CASE. IT HAS ALSO BEEN POINTED OUT THAT, GOING BY THE FACTS DISCUS SED IN THE ORDER, THE CASE BEFORE THE CHENNAI BENCH, DEALT WITH A SITUATION WHERE APPEAL WAS FILED BY A NON - EXISTENT ASSESSEE, WHICH IS NOT THE SITUATION IN THE INSTANT CASE. IN SUM AND SUBSTANCE, THE STAND OF THE LEARNED REPRESENTATIVE IS THAT THE DECISI ON OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. (SUPRA) WOULD NOT GOVERN THE INSTANT SITUATION. 19 . WE HAVE CAREFULLY PERUSED THE DECISION OF OUR CO - ORDINATE BENCH IN THE CASE OF M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. (SUPRA) AND ALSO CONSIDERED THE RIVAL STANDS. THE CHENNAI BENCH OF THE TRIBUNAL NOTED THAT 13 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. THE APPEAL BEFORE IT WAS FILED BY A NON - EXISTENT CONCERN AND, THEREFORE, THE APPEAL PROCEEDINGS DID NOT SURVIVE AT ALL. IN THE PRESENT CASE, THE ORIGINALL Y FILED FORM NO. 36B SHOWS THE CAUSE TITLE WHICH WE HAVE REPRODUCED EARLIER, WHICH REFERS TO THE ERSTWHILE M/S. SHELL TECHNOLOGY INDIA PVT. LTD. AND ONLY IN BRACKETS IT IS STATED THAT THE SAID CONCERN STANDS MERGED INTO THE NEW CONCERN, M/S. SHELL INDIA MA RKETS PVT. LTD. BUT, THE RELEVANT QUESTION TO BE EXAMINED IS AS TO WHICH ENTITY HAS PRESENTED THE APPEAL BEFORE THE TRIBUNAL? THE CLUE FOR THE ANSWER CAN BE HAD FROM THE MANNER IN WHICH THE MEMO OF APPEAL HAS BEEN SIGNED AND PRESENTED BEFORE THE TRIBUNAL , WHICH READS AS UNDER : - VERIFICATION I, R SURIYANARAYANA, DIRECTOR OF SHELL INDIA MARKETS PVT. LIMITED (ERSTWHILE SHELL TECHNOLOGY INDIA PVT. LIMITED) DO HEREBY DECLARE THAT WHAT IS STATED ABOVE IS TRUE TO THE BEST OF MY INFORMATION AND BELIEF. VERIF IED TODAY THE 10 TH DAY OF NOVEMBER 2011 EVEN THE GROUNDS OF APPEAL HAVE BEEN FILED BY THE NEW CONCERN, WHICH IS EVIDENCED BY THE FOLLOWING : - GROUNDS OF APPEAL AS PER ANNEXURE A ATTACHED HEREWITH. FOR M/S. SHELL INDIA MARKETS PVT. LIMITED (ERSTWHILE SHELL TECHNOLOGY INDIA PVT. LTD.) SD/ - R. SURIYANARAYANA DIRECTOR 14 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 2 0 . FACTUALLY SPEAKING, IT COULD NOT BE SAID THAT THE APPEAL HAS BEEN PRESENTED BY A NON - EXISTENT ASSESSEE, AS IT HAS BEEN SIGNED FOR AND ON BEHALF OF THE NEW ENTITY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. OF COURSE, THE CAUSE TITLE HAS NOT BEEN CORRECTLY WORDED AS IT REFERS TO THE OLD CONCERN AND IT IS ONLY IN THE BRACKETS THAT IT IS MENTIONED THAT THE SAME STANDS MERGED INTO THE NEW ENTITY, I.E. M/S. SHELL INDIA MARKETS PVT. LTD. IN OUR CONSIDERED OPINION, THE SAID OMISSION IS ONLY A TECHNICAL DEFECT AND IT CANNOT BE CONSTRUED THAT THE APPEAL HAS BEEN PRESENTED BY A NON - EXISTENT CONCERN. THE FACT - SITUATION IN THE CASE BEFORE THE CHENNAI BENCH OF THE TRIBUNAL WAS DIFFERENT IN ASMUCH AS THE APPEAL WAS FILED BY A NON - EXISTENT CONCERN, AND FOR THAT REASON, THE CHENNAI BENCH HELD THAT THE APPEAL WAS NOT CAPABLE OF SURVIV AL . THE FACTS IN THE INSTANT CASE CLEARLY SHOW THAT A VALID APPEAL HAS BEEN PRESENTED BY THE CORRECT ASSESSEE, A ND FOR THAT REASON, THE WRONG MENTIONING IN THE CAUSE TITLE OF THE APPEAL MEMO IS TO BE CONSTRUED ONLY AS A MISTAKE . IN ANY CASE, SUCH MISTAKE HAS ALSO BEEN RECTIFIED BY THE ASSESSEE BY FILING A REVISED FORM NO. 36B, WHICH IS ON RECORD. IN FACT, THE RECT IFICATION DONE BY THE APPELLANT IS NOT A CASE OF SUBSTITUTION OF A NEW APPELLANT BY ANOTHER, AS WAS THE CASE FOUND BY THE CHENNAI BENCH OF THE TRIBUNAL. THE INSTANT IS A CASE WHERE THE ORIGINAL APPEAL HAS BEEN PRESENTED BY THE CORRECT APPELLANT, BUT WITH A DEFECTIVE NOMENCLATURE IN THE TITLE WHICH ALSO STANDS SUBSEQUENTLY RECTIFIED. THUS, THE RATIONALE WHICH PREVAILED WITH THE CHENNAI BENCH OF THE TRIBUNAL TO HOLD THE APPEAL AS NON - MAINTAINABLE IN THE CASE OF M/S. ZENTA KNOWLEDGE SERVICES (P) LTD. (SUPRA) DOES NOT HELP THE REVENUE IN THE INSTANT CASE AND, THEREFORE, THE PLEA OF THE LD. DR ON THIS ASPECT ALSO IS HEREBY REJECTED. 15 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. 2 1 . AS A CONSEQUENCE OF OUR AFORESAID DISCUSSION, EVEN FOR THE ASSESSMENT YEAR 2007 - 08, WE HOLD THAT THE ASSESSMENT ORDER DATED 0 7.10.2011 (SUPRA) PASSED IN THE NAME OF M/S. SHELL TECHNOLOGY INDIA PVT. LTD. IS A NULLITY INASMUCH AS IT HAS BEEN PASSED IN THE NAME OF A NON - EXISTENT CONCERN AS IT STOOD MERGED WITH M/S. SHELL INDIA MARKETS PVT. LTD. W.E.F. 01.04.2008 FOLLOWING THE SCHEM E OF MERGER HAVING BEEN APPROVED BY THE HON'BLE HIGH COURTS OF KARNATAKA AND MADRAS VIDE ORDERS DATED 22.02.2010 (SUPRA) AND 24.02.2010 (SUPRA) RESPECTIVELY. ACCORDINGLY, THE ASSESSMENT ORDER DATED 07.10.2011 (SUPRA) IS HEREBY QUASHED. 2 2 . SINCE WE HAVE APPROVED THE PRELIMINARY PLEA OF THE ASSESSEE IN THIS YEAR TOO, AND THE ASSESSMENT HAS BEEN HELD TO BE A NULLITY, THE NECESSITY OF EXAMINING THE MERITS OF OTHER GROUNDS RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL IS OBVIATED. THUS, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 IS ALSO ALLOWED AS ABOVE. 2 3 . RESULTANTLY, THE APPEALS OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS ARE ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 T H DECEMBER, 2017. SD/ - SD/ - ( SA NDEEP GOSAIN ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 2 0 T H DECEMBER , 201 7 *SSL* 16 ITA NOS. 1055/BANG/2011 & 772/MUM/2013 M/S. SHELL INDIA MARKETS PVT. LTD. COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, K BENCH, MUMBAI 6) GUARD FI LE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI