M/s. Haryana Gramin Bank, Rohtak V. DCIT, Rohtak

ITA 1073/DEL/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7888 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 01-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUNESH KUMAR
• Keywords: Transfer pricing; International transaction; Procedural lapse; Scheme of amalgamation; Rule 8D; Set aside
• Section: 143(3); 142(1); 14A; 260A; 43D; 201; 143(2); 13; 22; 92CA; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI O.P.KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1073/DEL./2016 ASSESSMENT YEAR: 2012-13 HARYANA GRAMIN BANK, (NOW SARVA HARYANA GRAMIN BANK) H.O NEAR BAJRANG BHAWAN, DELHI ROAD, ROHTAK VS. DCIT, ROHTAK CIRCLE, ROHTAK PAN : AAALH0138G (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI VIVEK GUPTA, CA DEPARTMENT BY SHRI MUNESH KUMAR, CIT(DR) DATE OF HEARING 28.08.2020 DATE OF PRONOUNCEMENT 28.08.2020 ORDER PER O.P. KANT, A.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 21/12/2015 PASSED BY THE LEARNED CIT(APPEALS), ROHA TAK [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2012-13 RAISING FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF THE LAW, THE ORDER U/S 143(3) DATED 30/01/2015 OF T HE LD. AO BEING PASSED IN THE NAME OF THE NON-EXISTENCE ASSESSEE, I S VOID AB INITIO AND THEREFORE THE SAME NEEDS TO BE QUASHED. A) THAT WITHOUT PREJUDICE TO GROUND NO. 1 ABOVE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF THE LAW , THE LD. AO AS WELL AS LD. CIT(A) ERRED IN MAKING/CONFIRMING THE D ISALLOWANCE OF 2 ITA NO.1073/DEL./2016 RS.5,12,33,440/- U/S 14A READ WITH RULE 8D OF THE I T ACT AGAINST THE EXEMPTED INCOME OF DIVIDEND OF RS.41,19,539/- O NLY. B) THAT WOULD PREJUDICE TO GROUND NO. 2(A), ABOVE, THE LD. AO AS WELL AS LD. CIT(A) IS NOT JUSTIFIED IN MAKING/CONFIRMING THE DISALLOWANCE U/S 14A READ WITH RULE 8D OF IT ACT IN EXCESS OF TH E EXEMPTED INCOME OF DIVIDEND WHICH IS ONLY OF RS.41,19,539/- 3. THAT WOULD PREJUDICE TO GROUND NO. 1 ABOVE AND O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISION OF THE LAW, THE LD. AO AS WELL AS LD.CIT(A) ERRED IN MAKING/CONFIRMING THE AD DITION OF RS.5,48,88,600/- TOWARDS INTEREST ON NPAS ON ACCRUA L BASIS BY TOTALLY DISREGARDING THE SPECIFIC SECTION 43D OF TH E IT ACT APPLICABLE TO BANKING INDUSTRY IN THIS REGARD. 4. THAT WITHOUT PREJUDICE TO GROUND NO. 1 ABOVE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF THE LAW , THE LD. AO AS WELL AS LD. CIT(A) ERRED IN MAKING/CONFIRMING THE D ISALLOWANCE OF RS.1,53,54,015/- IN RESPECT OF AMORTIZATION OF PREM IUM PAID AT THE TIME OF PURCHASE OF SECURITIES OVER THE REMAINING P ERIOD OF SECURITIES. 5. THAT WITHOUT PREJUDICE TO GROUND NO. 1 ABOVE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF THE LAW , THE LD. AO AS WELL AS LD.CIT(A) ERRED IN MAKING/CONFIRMING THE DI SALLOWANCE OF RS.20,39,000/- TOWARDS PROVISION FOR FRAUD CASES WH ICH OCCURRED DURING THE COURSE OF BANKING BUSINESS OF THE BANK. 6. THAT WITHOUT PREJUDICE TO GROUND NO. 1 ABOVE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISION OF THE LAW, THE LD. AO AS WELL AS LD. CIT(A) ERRED IN MAKING/CONFIRMING THE A DDITION OF RS.7,700/- TOWARDS LOCKER RENT ON ACCRUAL BASIS BY TOTALLY DISREGARDING THE ACCOUNTING POLICY OF THE BANK ON C ASH BASIS IN THIS REGARD WHICH HAS BEEN FOLLOWED CONSISTENTLY BY THE BANK AND ALSO ACCEPTED BY THE INCOME TAX DEPARTMENT ITSELF IN PAS T. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ER STWHILE ENTITY OF THE ASSESSEE, NAMELY, THE HARYANA GRAMIN BANK, FI LED RETURN OF INCOME ON 26/09/2012 DECLARING TOTAL INCOME OF RS.82,75,46,560/-. THE RETURN OF INCOME FILED BY TH E ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UND ER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT) WAS ISSUED AND COMPLIED WITH. IN THE COURSE OF ASSESSMENT PROC EEDING, THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE F ILED A LETTER 3 ITA NO.1073/DEL./2016 DATED 20/11/2014 BEFORE THE ASSESSING OFFICER, WHER EIN IN PARA 6, HE SUBMITTED THAT M/S HARYANA GRAMIN BANK GOT AMALGAMATED WITH M/S SARVA HARYANA GRAMIN BANK AS ON 29/11/2013 VIDE GAZETTE NOTIFICATION NO. 2686 OF GO VT. OF INDIA AND M/S. HARYANA GRAMIN BANK WAS NO LONGER IN EXIST ENCE. DESPITE THIS INFORMATION ON THE RECORD OF THE ASSES SING OFFICER, HE PASSED THE SCRUTINY ASSESSMENT ORDER U/S 143(3) ON 30/01/2015 ON M/S. HARYANA GRAMIN BANK (ERSTWHILE ENTITY) AFTE R MAKING CERTAIN ADDITION/DISALLOWANCE TO THE RETURNED INCOM E. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) CHA LLENGING THAT ASSESSMENT HAS BEEN MADE ON NON-EXISTENT ENTITY. TH E ASSESSEE ALSO CHALLENGED ADDITION/DISALLOWANCE ON MERIT. THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON LEGAL GROUN D (I.E. ASSESSMENT MADE ON NONEXISTENCE ENTITY) AND ALSO DI SMISSED THE APPEAL ON MERIT ON ADDITION/DISALLOWANCES. AGGRIEVE D, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL RAISING T HE GROUNDS AS REPRODUCED ABOVE. THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED ON 20/05/2019 DUE TO NON-PROSECUTION BY THE ASSESSE E, HOWEVER, LATER ON RECALLED FOR HEARING. 3. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED LEG ALITY OF THE ASSESSMENT MADE ON NON-EXISTENCE ENTITY. 4. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON THE ISSUE IN DISPUTE. THE LEARNED COUNSEL OF THE ASSESSEE HAS FILED A PAPER- BOOK CONTAINING PAGES 1 TO 118. HE REFERRED TO PAG E 7-9 OF THE PAPER-BOOK, WHICH IS A COPY OF LETTER DATED 20/11/2 014 FILED WITH THE LEARNED ASSESSING OFFICER. THE PARA-6 OF THE SA ID LETTER, WHEREIN THE ASSESSEE INTIMATED THAT THE ERSTWHILE E NTITY, M/S HARYANA GRAMIN BANK WAS NO LONGER IN EXISTENCE, I S REPRODUCED AS UNDER: 4 ITA NO.1073/DEL./2016 6. THAT THE ASSESSEE BANK M/S. HARYANA GRAMIN BANK GOT AMALGAMATED WITH M/S. SARVA HARYANA GRAMIN BANK AS ON 29.11.2013 VIDE GAZETTEE NOTIFICATION NO. 2686 OF G OVT. OF INDIA. NOW, THE ASSESSEE, NAMELY, M/S. HARYANA GRAMIN BANK IS NOT IN EXISTENCE. (COPY OF GAZETTE NOTIFICATION ATTACHED H EREWITH). 4.1 THE LEARNED COUNSEL ALSO REFERRED TO COPY OF GA ZETTE NOTIFICATION OF MINISTRY OF THE FINANCE DATED 29/11 /2013 NOTIFYING AMALGAMATION OF M/S HARYANA GRAMIN BANK W ITH M/S SARVA HARYANA GRAMIN BANK, WHICH WAS EFFECTIVE FROM THE DATE OF THE PUBLICATION OF THE NOTIFICATION. 4.2 DESPITE THIS INFORMATION PROVIDED BY CA, SH. N AVEEN KUMAR GOYAL, THE ASSESSING OFFICER PROCEEDED TO MAKE THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON THE ERSTWHILE EN TITY M/S HARYANA GRAMIN BANK. 4.3 BEFORE THE LD. CIT(A), THE ASSESSEE REFERRED TO SECTION 170(2) OF THE ACT AND SUBMITTED THAT WHERE THE PREDECESSOR CANNOT BE FOUND IN THE ASSESSMENT OF THE INCOME OF THE PREVIO US YEAR IN WHICH SUCCESSION TOOK PLACE AFTER THE DATE OF THE S UCCESSION AND OF THE PREVIOUS YEAR PRECEDING THAT YEAR SHALL BE M ADE ON THE SUCCESSOR IN LIKE MANNER AND TO THE SAME EXTENT AS IT WOULD HAVE BEEN MADE ON THE PREDECESSOR. THE ASSESSEE ALSO REL IED ON THE FOLLOWING DECISION IN SUPPORT OF ITS CLAIM THAT ASS ESSMENT MADE ON THE NON-EXISTENT ENTITY IS NULL AND VOID AND LIA BLE TO BE QUASHED: 1. THE SUPREME COURT IN SARASWATI INDUSTRIAL SYNDI CATE LTD. V.S CIT, REPORTED IN 1991 AIR 70, 1990 SCR SUPL. (1) 332, HELD THAT AFTER THE AMALGAMATION OF THE TWO COMPANIES THE TRA NSFEROR COMPANY CEASED TO HAVE ANY ENTITY AND AMALGAMATED C OMPANY ACQUIRED A NEW STATUS AND IT WAS NOT POSSIBLE TO TR EAT THE TWO COMPANIES AS PARTNERS OR JOINTLY LIABLE IN RESPECT OF THEIR LIABILITIES AND ASSETS. 2. DELHI HIGH COURT IN 52 TAXMANN.COM 356 [2014] HE LD THAT IT (BECOMES) INCUMBENT UPON THE INCOME TAX AUTHORTIES TO SUBSTITUTE 5 ITA NO.1073/DEL./2016 THE SUCCESSOR IN PLACE OF THE SAID DEAD PERSON. SUCH A DEFECT CANNOT BE TREATED AS PROCEDURAL DEFECT. ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON-EXISTING EN TITY IT DOES NOT REMAIN A PROCEDURAL IRREGULARITY OF THE NATURE WHIC H COULD BE CURED BY INVOKING THE PROVISIONS OF SECTION 292 OF THE AC T. 3. KARNATKA HIGH COURT IN 57 TAXMANN.COM 159 [2015] HELD THAT ASSESSMENT IN NAME OF COMPANY WHICH HAD BEEN AMALGAMATED WITH OTYHER COMPANY WOULD BE NULL AND V OID AND FRAMING OF ASSESSMENT IN NAME OF NON-EXISTENT ENTIT Y IS NOT A PROCEDURAL IRREGULARITY WHICH CAN BE CURED UNDER SE CTION 292B. 4. DELHI HIGH COURT AGAIN IN 57 TAXMANN. 163 [2015] HELD THAT SINCE ASSESSEE HAD AMALGAMATED WITH TRANSFEREE-COM PANY, NOTICE OUGHT TO HAVE BEEN SENT TO LATTER, AND SINCE SUCH N OTICE HAD NOT BEEN ISSUED TO TRANSFEREE-COMPANY, ENTIRE PROCEEDINGS WE RE A NULLITY. 4.4 THE LD. CIT(A) DISMISSED THE GROUND OF THE ASSE SSEE HOLDING THAT THE AMALGAMATION HAPPENED ONLY ON 29/11/2013 , WHICH PERTAINS TO FINANCIAL YEAR 2013-14 RELEVANT TO ASSE SSMENT AT 2014-15, WHEREAS THE ASSESSMENT ORDER AND THE APPEA L RELATES TO ASSESSMENT YEAR 2012-13, THUS, THE ISSUE OF THE IMP ACT OF THE AMALGAMATION DOES NOT ARISE. 4.5 IN OUR OPINION, THIS FINDING OF THE LD. CIT(A) IS CONTRARY TO THE LAW. IF AN INDIVIDUAL DIES DURING THE ASSESSMEN T PROCEEDING, THE ONUS IS ON THE REPRESENTATIVES TO BRING HIS LEG AL HEIR ON RECORD SO THAT ASSESSMENT PROCEEDING THEREAFTER COULD BE C ONTINUED ON LEGAL HEIR AND THE AUTHORIZED REPRESENTATIVE SHOULD ALSO BE AUTHORIZED THEREAFTER BY THE LEGAL REPRESENTATIVE T O APPEAR IN THE ASSESSMENT PROCEEDINGS. A DEAD PERSON CANNOT BE REP RESENTED BY THE AUTHORIZED REPRESENTATIVE IN PROCEEDINGS SUBSEQ UENT TO HIS DEATH, THOUGH HE WAS AUTHORIZED FOR APPEARING IN TH E ASSESSMENT PROCEEDING PRIOR TO HIS DEATH. SIMILARLY, WHEN ONE (FIRST) ENTITY GETS AMALGAMATED WITH ANOTHER (SECOND) ENTITY, THE ERSTWHILE ENTITY (FIRST ENTITY) DOES NOT EXIST FROM THE EFFEC TIVE DATE OF THE AMALGAMATION. IT IS NOT THAT AMALGAMATION WILL BE E FFECTIVE IN RELATION TO THE ASSESSMENT YEAR WHEN IT CAME INTO E FFECT, BUT THE 6 ITA NO.1073/DEL./2016 PENDING PROCEEDINGS OF EARLIER ASSESSMENT YEARS ALS O CANNOT BE CARRIED ON SUCH NON-EXISTENCE PERSON AND ONCE IT IS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THE FACT OF NON -EXISTENCE OF THE ERSTWHILE ENTITY AND MERGER OF THE ERSTWHILE ENTITY WITH THE NEW ENTITY, THE ASSESSING OFFICER IS REQUIRED TO TAKE T HE SUCCESSOR ENTITY ON RECORD AND THE AUTHORIZED REPRESENTATIVE APPEARING ALSO IS REQUIRED TO FILE THE POWER OF ATTORNEY DULY AUTH ORIZED BY THE AMALGAMATED ENTITY I.E. NEW ENTITY. THE COUNSEL OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE HONBLE SUPREME C OURT IN THE CASE OF PCIT VS MARUTI SUZUKI INDIA LTD (2019) 107 TAXMANN.COM 375 (SC). THE RELEVANT FACTS OF THE CASE REPRODUCED BY THE HONBLE SUPREME COURT ARE EXTRACTED AS UNDER: 5 THE ASSESSEE IS A JOINT VENTURE BETWEEN SUZUKI M OTOR CORPORATION AND MSIL. THE SHAREHOLDING OF THE TWO COMPANIES IN THE ASSESSEE WAS 70 PER CENT AND 30 PER CENT. THE ASSESSEE WAS K NOWN UPON INCORPORATION AS SUZUKI METAL INDIA LIMITED. SUBSEQ UENTLY, WITH EFFECT FROM 8 JUNE 2005, ITS NAME WAS CHANGED TO SP IL. 6 ON 28 NOVEMBER 2012, THE ASSESSEE FILED ITS RETUR N OF INCOME DECLARING AN INCOME OF RS. 212,51,51,156/-. THE RET URN OF INCOME WAS FILED IN THE NAME OF SPIL (NO AMALGAMATION HAVI NG TAKEN PLACE ON THE RELEVANT DATE). 7 ON 29 JANUARY 2013, A SCHEME FOR AMALGAMATION OF SPIL AND MSIL WAS APPROVED BY THE HIGH COURT WITH EFFECT FRO M 1 APRIL 2012. THE TERMS OF THE APPROVED SCHEME PROVIDED THAT ALL LIABILITIES AND DUTIES OF THE TRANSFEROR COMPANY SHALL STAND TRANSF ERRED TO THE TRANSFEREE COMPANY WITHOUT ANY FURTHER ACT OR DEED. ON THE SCHEME COMING INTO EFFECT, THE TRANSFEROR WAS TO ST AND DISSOLVED WITHOUT WINDING UP. THE SCHEME STIPULATED THAT THE ORDER OF AMALGAMATION WILL NOT BE CONSTRUED AS AN ORDER GRAN TING EXEMPTIONS FROM THE PAYMENT OF STAMP DUTY OR TAXES OR ANY OTHE R CHARGES, IF PAYABLE, IN ACCORDANCE WITH LAW. 8 ON 2 APRIL 2013, MSIL INTIMATED THE ASSESSING OFF ICER OF THE AMALGAMATION. THE CASE WAS SELECTED FOR SCRUTINY BY THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) ON 26 SEPTEMBER 2013, FOLLOWED BY A NOTICE UNDER SECTION 142(1) TO THE AMALGAMATING COMPANY. 7 ITA NO.1073/DEL./2016 9 ON 22 JANUARY 2016, THE TRANSFER PRICING OFFICER8 PASSED AN ORDER UNDER SECTION 92CA (3) DETERMINING THE ARMS LENGTH PRICE OF ROYALTY AT 3 PER CENT AND MAKING AN ADJUSTMENT OF R S. 78.97 CRORES IN RESPECT OF ROYALTY PAID BY THE ASSESSEE FOR THE RELEVANT PREVIOUS YEAR. 10 ON 11 MARCH 2016, A DRAFT ASSESSMENT ORDER WAS P ASSED IN THE NAME OF SUZUKI POWERTRAIN INDIA LIMITED (AMALGAMAT ED WITH MARUTI SUZUKI INDIA LIMITED). THE DRAFT ASSESSMENT ORDER S OUGHT TO INCREASE THE TOTAL INCOME OF THE ASSESSEE BY RS. 78.97 CRORE S IN ACCORDANCE WITH THE ORDER OF THE TPO IN ORDER TO ENSURE THAT T HE 8 TPO INTERNATIONAL TRANSACTIONS WITH REGARD TO THE PAYMENT OF ROYALTY TO THE ASSOCIATED ENTERPRISES IS AT ARMS L ENGTH. 11 MSIL PARTICIPATED IN THE ASSESSMENT PROCEEDINGS OF THE ERSTWHILE AMALGAMATING ENTITY, SPIL, THROUGH ITS AUTHORIZED R EPRESENTATIVES AND OFFICERS. THIS IS EVIDENT FROM THE COPIES OF TH E ORDER SHEETS OF THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER FOR AY 2012-13. POST AMALGAMATION, ON 30 SEPTEMBER 2013, THE CHARTE RED ACCOUNTANTS ADDRESSED A COMMUNICATION TO THE COMMIS SIONER OF INCOME TAX, CIRCLE 9(1), PURSUANT TO THE NOTICE UND ER SECTION 143(2) FOR AN ADJOURNMENT OF THE ASSESSMENT PROCEEDINGS F OR AY 2012-13 UNTIL THE ASSESSMENT PROCEEDINGS FOR AY 201 0-11 AND AY 2011-12 WERE COMPLETED. ON 27 OCTOBER 2014, THE DEP UTY COMMISSIONER OF INCOME TAX CIRCLE 9 (1) ADDRESSED A COMMUNICATION TO THE PRINCIPAL OFFICER, SPIL SEEKING A RESPONSE T O A DETAILED QUESTIONNAIRE. THEREAFTER, ON 4 SEPTEMBER 2015, THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 16(1) CALLED FOR DISCLOSURE OF INFORMATION IN THE COURSE OF THE ASSESSMENT FOR AY 2012-13. THE COMMUNICATION WAS ADDRESSED TO: THE PRINCIPAL OFFICER M/S SUZUKI POWER TRAIN INDIA LIMITED (NOW KNOWN AS M/S MARUTI SUZUKI INDIA LIMITED). 12 ON 8 OCTOBER 2015, A COMMUNICATION WAS ADDRESSED BY THE DGM (FINANCE) FOR MSIL IN RESPONSE TO THE NOTICE UNDER SECTION 142 (1) ADVERTING TO THE CASE OF SPIL FOR AY 2012-13. 13 ON 12 APRIL 2016, MSIL FILED ITS APPEAL BEFORE T HE DISPUTE RESOLUTION PANEL9 AS SUCCESSOR IN INTEREST OF THE E RSTWHILE SPIL, SINCE AMALGAMATED. FORM 35A WAS VERIFIED BY MR KENI CHI AYUKAWA, MANAGING DIRECTOR & CEO OF MSIL. THE GROUNDS OF APP EAL BEFORE THE DRP DID NOT ALLUDE TO THE OBJECTION THAT THE DRAFT ASSESSMENT ORDER WAS PASSED IN THE NAME OF SPIL (AMALGAMATED WITH MS IL) OR THAT THIS DEFECT WOULD RENDER THE ASSESSMENT PROCEEDINGS INVALID. 14 ON 14 OCTOBER 2016, THE DRP ISSUED ITS ORDER IN THE NAME OF MSIL (AS SUCCESSOR IN INTEREST OF ERSTWHILE SPIL SI NCE AMALGAMATED). 8 ITA NO.1073/DEL./2016 15 THE FINAL ASSESSMENT ORDER WAS PASSED ON 31 OCTO BER 2016 IN THE NAME OF SPIL (AMALGAMATED WITH MSIL) MAKING AN ADDITION OF RS. 78.97 CRORES TO THE TOTAL INCOME OF THE ASSESSE E. WHILE PREFERRING AN APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE RAISED THE OBJECTION THAT THE ASSESSMENT PROCEEDINGS WERE CONTINUED IN THE NA ME OF THE NON- EXISTENT OR MERGED ENTITY SPIL AND THAT THE FINAL A SSESSMENT ORDER WHICH WAS ALSO ISSUED IN THE NAME OF A NON-EXISTENT ENTITY, WOULD BE INVALID. 16 BY ITS DECISION DATED 6 APRIL 2017, THE TRIBUNAL SET ASIDE THE FINAL ASSESSMENT ORDER ON THE GROUND THAT IT WAS VO ID AB INITIO, HAVING BEEN PASSED IN THE NAME OF A NON-EXISTENT EN TITY BY THE ASSESSING OFFICER. THE DECISION OF THE TRIBUNAL WAS AFFIRMED IN AN APPEAL UNDER SECTION 260A BY THE DELHI HIGH COURT ON 9 JANUARY 2018 FOLLOWING ITS EARLIER DECISION IN THE CASE OF THE ASSESSEE FOR AY 2011-12. THAT HAS GIVEN RISE TO THE PRESENT APPEAL. 4.6 AFTER HEARING ARGUMENTS OF THE BOTH PARTIES AND ANALYSIS OF THE VARIOUS DECISIONS OF THE ISSUE IN DISPUTE, THE HONBLE SUPREME COURT CONCLUDED AS UNDER: 33 IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HAVING CEA SED 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 EX IST UPON THE APPROVED SCHEME OF AMALGAMATION. PARTICIPATION IN T HE PROCEEDINGS BY THE APPELLANT IN THE CIRCUMSTANCES CANNOT OPERAT E AS AN ESTOPPEL AGAINST LAW. THIS POSITION NOW HOLDS THE FIELD IN V IEW OF THE JUDGMENT OF A CO-ORDINATE BENCH OF TWO LEARNED JUDG ES WHICH DISMISSED THE APPEAL OF THE REVENUE IN SPICE ENFOTA INMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENFOTAINMENT H AS BEEN FOLLOWED IN THE CASE OF THE RESPONDENT WHILE DISMIS SING THE SPECIAL LEAVE PETITION FOR AY 2011-2012. IN DOING SO, THIS COURT HAS RELIED ON THE DECISION IN SPICE ENFOTAINMENT. 34 WE FIND NO REASON TO TAKE A DIFFERENT VIEW. THER E IS A VALUE WHICH THE COURT MUST ABIDE BY IN PROMOTING THE INTEREST O F CERTAINTY IN TAX LITIGATION. THE VIEW WHICH HAS BEEN TAKEN BY THIS C OURT IN RELATION TO THE RESPONDENT FOR AY 2011-12 MUST, IN OUR VIEW BE ADOPTED IN RESPECT OF THE PRESENT APPEAL WHICH RELATES TO AY 2 012-13. NOT DOING SO WILL ONLY RESULT IN UNCERTAINTY AND DISPLACEMENT OF SETTLED EXPECTATIONS. THERE IS A SIGNIFICANT VALUE WHICH MU ST ATTACH TO OBSERVING THE REQUIREMENT OF CONSISTENCY AND CERTAI NTY. INDIVIDUAL AFFAIRS ARE CONDUCTED AND BUSINESS DECISIONS ARE MA DE IN THE EXPECTATION OF CONSISTENCY, UNIFORMITY AND CERTAINT Y. TO DETRACT FROM THOSE PRINCIPLES IS NEITHER EXPEDIENT NOR DESIRABLE . 9 ITA NO.1073/DEL./2016 4.7 THE ISSUE IN DISPUTE IN THE INSTANT CASE BEING SQUARELY COVERED BY THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF MARUTI SUZUKI LTD (SUPRA), WE SET ASIDE THE ORDE R OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND HOLD THAT ASSESS MENT MADE ON NON-EXISTENT ENTITY IS VOID AB INITIO AND HENCE SAME IS QUASHED. THE GROUND NO. 1 OF THE APPEAL OF THE ASSESSEE IS A CCORDINGLY ALLOWED. 4.8 SINCE WE HAVE ALREADY QUASHED THE ASSESSMENT, T HE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERIT ARE RENDERE D ONLY ACADEMIC, ACCORDINGLY WE ARE NOT ADJUDICATING UPON THE SAME. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2020. SD/- SD/- (KULDIP SINGH) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 TH AUGUST, 2020. RK/- (D.T.D.S) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI