SIEMENS LTD, MUMBAI V. DCIT CIR 8(2)(1), MUMBAI

ITA 1146/MUM/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9592 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT PAL SINGH
• Keywords: Bad and doubtful debts; Scheme of amalgamation
• Section: 147; 143(3); 142(1); 14A; 143(1); 144C; 143(2); 13; 153; 92CA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “J” BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 1146/Mum/2018 (A.Y: 2010-11) Siemens Ltd (Successor in interest to Siemens Building Technologies Pvt Ltd.,) Birla Aurora, Level 20, P.No. 1080, Ar. Annie Besant Road, Worli, Mumbai – 400030. Vs. DCIT, Corporate Circle - 8(2)(1), Room No. 615, 6 th Floor, Aayakar Bhavan, MK Road, Mumbai – 400020. ./ज आइआर ./PAN/GIR No. : AAACS0764L Appellant .. Respondent Appellant by : Shri. Nitesh Joshi. AR Respondent by : Shri. Ajit Pal Singh.DR Date of Hearing 23.11.2021 Date of Pronouncement 31.01.2022 आद श / O R D E R PER PAVAN KUMAR GADALE JM: The assessee company has filed the appeal against the final assessment order passed u/s 143(3) r.w.s 144C(13) r.w.s 92CA(3) of the Income Tax Act, 1961 in pursuance to the directions of the DRP. The assessee has raised the grounds of appeal on the (i) transfer pricing adjustments (ii) Corporate Tax ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 2 - adjustments and (iii) legal issues. First the Grounds of appeal in relation to legal issue are taken up and are as under: 1. On the f acts and the circumstances of the case, the impugned order passed by the Ld. AO/DC IT is erroneous and contrary to the principles of natural jus tice and bad in law. Ground in relation to legal issue: 2. The Ld . DRP erred in f acts and in law by coming to the conclusion that there was no inf irmity in the directions issued as also the f inal assessment order passed by the Ld. Panel in the name of Sieme ns Build ing Technologies Pv t Ltd., even when it was cate goric ally pointed out that assessee had merged with Siemens Ltd., 3. The Ld. Panel erred in f acts and in law, by coming to a conclusion that th ere was no inf irmity committed by the off icers of the departmen t and that the assessee was wholl y and solely responsibl e f or discrepancies, and could not seek relief f rom additions on the ground that the assessmen t was f ramed on a non-exis tent en tity, namel y Siemens Building Technologies Pvt Ltd., having f ailed to appreciate th at the asse ssment f ramed on a non-existent entity was a nullity. 2. It was brought to the knowledge of the Bench that, earlier the Hon’ble Tribunal in ITA No. 988/Mads/2015 dated 23.09.2016 has restored the additional ground of appeal to the file of the DRP referred at page 5 Para 7 of the order as under: . 7. We have heard bo th the parties and perused the material on record. In our opinion, the raising of add ition al ground is justif ied and it is due to inadvertence, this ground was no t raised bef ore the lower au thori ties and f irst time raised bef ore this Tribunal. Accordingly, we pl ace reliance on the jud gement of Supreme Court in the case of National Thermal Power ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 3 - Company Limited reported in 229 IT R 383(SC), and admit the ad ditional grounds. Ho wever, this ground was r aised f irst time bef ore this Tribunal and the DRP has no occasion to examine the issue regard ing the v alid ity of passing asse ssment orders in the name of M/s.S iemens Building Technologies Pv t Ltd. Hence, in the interest of justice, we are inclined to re mit the issue in dispu te in respect of additional ground to the f ile of DRP to examine the record s and the DRP would decide the issue f rom their end in accordance with law. Accordingly, the issue is remitted to the f ile of DRP f or f resh consideration. 3. Subsequently, the DCIT 8(2)(1) Mumbai, has passed the order giving effect (OGE) to the directions of DRP Bengalure dated 22-12-2017, were the DRP has restored back the order U/sec143(3) r.w.s 144C(13) r.w.s 92CA(2) of the Act dated 26-02-2015 passed by the erstwhile DCIT corporate Circle-6(2) Chennai and the order stands confirmed. 4. At the time of hearing, the Ld.AR made submissions on the additional ground of appeal and is admitted. “On the facts and in the circumstances of the case, and in law , without prejudice to the earlier grounds, the learned assessing officer (A O) has erred in assuming jurisdiction and issuing notice u/sec143(2) of the Income Tax Act 1961 (the ACT)to an nonexistent entity i.e.Siemens Building Technologies ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 4 - Private Limited(SBTPL), even after A.O. was informed that SBTPL has been Amalgamated with the Siemens Limited with effect from 1 October 2020 and ceased to exist before the date of issuance of such notice rendering the entire proceedings as void ab initio being against a non –existent entity”. 5. The Brief facts of the case are that the assessee - Siemens Building Technology Pvt Ltd (SBTPL) is engaged in trading of electronic safety and security systems. The assessee has filed the return of income for the A.Y 2010-11 with the total income of Rs. 29,94,40,340/-, subsequently the revised return of income was filed on 28-03-2012 with a total income of Rs.29,94,40,340/-.The return of income was processed u/s 143(1) of the Act, subsequently, the case was selected for scrutiny and notice u/s 143(2) and 142(1) of the Act along with the questionnaire was issued. The A.O on perusal of the facts found that the assessee has international transactions with its Associate Enterprises (AE) as per form.no.3CEB, more than the specified limits, therefore the matter was referred to the TPO for determination of Arms Length Price (ALP). Whereas, the TPO has passed the order ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 5 - u/sec92CA(3) of the Act dated 28.01.2014 with upward adjustment of ALP of Rs.2,47,77,068/- In respect of the corporate issues, the Assessing Officer (A.O) has dealt on the facts and law on the deduction U/sec80IB of the Act, disallowance u/s 14A of the Act and Bad Debts written off claim and finally assessed the total income of Rs.38,76,54,136/- and passed the Draft Assesseement order u/sec 143(3) r.w.s.92CA(4) r.w.s 144C of the Act dated28-03-2014.Against the Draft assessment order, the assessee has filed objections in Form no 35A with the DRP, whereas the DRP considered the submissions of the assessee and findings of the A.O and TPO in determination of ALP and has confirmed the additions and issued the directions to the Assessing officer. Finally the A.O has determined the total income with addition of TP adjustment of Rs. 2,47,77,068/-, disallowance of bad debts of Rs. 12,99,833/- and disallowance u/s 14A of the Act Rs. 2,07,500/- and passed the order u/s 143(3) r.w.s 144C(13) r.w.s 92CA of the Act dated 26.02.2015. ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 6 - 6. Aggrieved by the order, the assessee has filed an appeal before the Hon’ble Tribunal. 7. At the time of hearing, the Ld. AR has pressed only the additional ground of appeal being the legal issue. The Ld.AR submitted that the A.O has framed assessment on non existing entity i.e Siemens building technology Pvt Ltd(SBTPL), whereas the A.O has failed to appreciate that the assessee was amalgamated and the Ld.AR explained the chronology of events and substantiated the submissions with the judicial decisions and factual paper book and prayed for allowing the appeal. Contra, the Ld. DR has defended and supported the orders of the lower authority. 8. We heard the rival contentions and perused the material on record. The Ld. AR has restricted his arguments to the extent of the legal grounds of appeal where the assessment order was passed on the non existing entity. On the factual aspects, Siemens building technology Pvt Ltd (SBTPL) (the assessee) was amalgamated with the Siemens Limited as per the scheme of Amalgamation under section 391 to 394 of the companies Act 1956 approved by the Honble High Court Of Madras w.e.f 01/10/2010. Due to ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 7 - amalgamation, the identity of (SBTPL) ceased to exist and the copy of order of amalgamation sanctioned by the Honble High Court was filed with the ACIT Company Circle VI(3) Chennai on 1 July 2011 (referred at page 37 of the paper book). The Assessing officer issued the notice u/sec 143(2) of the Act on 29-08-2011 in the name of Non- existent entity (placed at page 38 of paper book). The A.O. has issued notice U/sec142(1) of the Act dated 24-07-2012 in the name of non existing entity to furnish the details @ a to j in the notice on the date of hearing(Notice placed at page 39 of paper book) and also Notice of hearing issued on 26-10-2012 is in the non existent entity placed at page 40 of the paper book. Finally the A,O, has passed draft Assessment order in the name of “ Siemens building technology Pvt Ltd ( presently merged and known as “Siemens Ltd”). The DRP has wrongly mentioned the name of the entity in its order u/sec144C(5) of the Act directions dated 24/12/2014.Further, the learned assessing officer, has passed final assessment order in the name of “ Siemens building technology Pvt Ltd being non existent entity Thus, it is clear that as on the date of passing of assessment order, i.e. on 26/02/2015, ““ Siemens building technology Pvt Ltd ‟ was not in existence as it was ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 8 - merged with Siemens Ltd and the assessment order was passed on nonexistent company/entity and is invalid. 9. We find The Hon‟ble Supreme Court, in the case of Pr.CIT Vs Maruti Suzuki India Ltd 416 ITR 613 ( S C ), has held that assessment order passed on a nonexistent entity is without jurisdiction and deserves to be set aside. The facts of the case,before the Hon‟ble Supreme Court clearly shows that the notice issued under section 143(2) of the Act is in the name of amalgamating company and not the name of amalgamated company. In the present case, similar notice dated 29/08/2011 was issued in the name of a nonexistent entity. Even the participation by the assessee in the assessment proceedings would also not make any difference because the facts remains that the assessment order has been passed by the assessing officer in the name of a nonexistent company. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased 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 ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 9 - exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. The Ld. AR has relied on the following judicial decisions as under: 1. PCIT Vs Maruti Suzuki India Ltd, Civil Appeal No. 5409 of 2019.(416 ITR 613) 2. SiemensLtd Vs DCIT ITA No.2181/Mum/2017 3. SiemensLtd Vs ACIT ITA No.3296/Mum/2015 4. Siemens LtdVsACIT ITA No. 1824/Mum/2015 5. Siemens LtdVsACIT ITA No.1772/Mum/2015 6. SiemensLtd Vs DCIT ITA No.1527/Mum/2014 7. Siemens Technology Services Pvt ltd,Vs ACIT ITA No. 6313/Mum/2012. 8. Jitendra Chandralal Navlani & Anr. (writ petition No. 1069 of 2016 High Court of Bombay) 9. Spice Infotainment Ltd IT Appeal Nos. 475 & 476 of 2011 10. Federal Express India Pvt ltd ITA No. 857/Mum/2016 11. Micra India Pvt Ltd (ITA 441/2013- Delhi High Court) 12. M/s Computer Engineering Services Ind P Ltd, ITA Nos. 5975 to 5979 of Delhi/2013. ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 10 - 13 M/s Images Credit and Portfolio P Ltd, ITA No. 5301 to 5305/Del/2013. 14. Ambuja Cements Rajasthan Ltd. (WTA No. 11/Mum/2014). 15. I.K. Agencies Pv t l td. AWT No.3 of 2003 (Kolkata) 16. Ins tant Hol dings Ltd., (S uccessor to Instan t Trad ing & Investmne t) ITA No. 4593/Mum/2011. 17. Hotel Blue Moon (Civil Appeal No. 1198 of 2010 ) 18. C IT Vs. laxman D as Khandel wal (Civ il appe al No. 6261- 6262 of 2019.) 10. We considered the facts and the catena of legal decisions. We find in the case of Pr.CIT Vs. Maruti Suzuki India Ltd (Supra), the Hon’ble Supreme court has observed as under: 24 A batch of Civil Appeals was f iled bef ore this Court against the d ecisions of the Delhi High Court, the lead appeal being Spice Enf otainment. On 2 November 2017, a Bench of this Court consistin g of Hon’ble Mr Justice Rohinton Fali N ariman and Hon’ble Mr Justice S anjay Kishan Kaul d ismissed the Civil Appeals and tagged Special Le av e Pe titions in terms of the f ollowing order : “Delay condoned. Heard the learned Senior Counsel appe aring f or the par ties. We do not f ind any reason to in terf ere with the impugned jud gmen t(s) passed by the High Court. In v iew of this, we f ind no merit in the appeals and special leave pe titions. Accordingly, the appeals and special leave pe titions are dismissed.” ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 11 - 25 The doctrine of merger results in the settled legal position that the judgmen t of the Delhi High Court stands aff irmed by the above decision in the Civil Appeal s. 26 The order of asse ssment in the case of the respondent f or AY 2011-12 was se t aside on the same ground. This resulted in a S pecial Le ave Pe tition by the Principal C ommissioner of Income Tax – 6 Delhi32. The S pecial Leave Petition was dismissed by a two jud ge Bench of this Court consisting of Hon’bl e Mr Justice Rohinton Fali N ariman and Hon’ble Ms Justice Ind u Malho tra on 16 July 2018 in vie w of the order dated 2 November 2017 governing Civil Appeal No. 285 of 2014 in Spice Enfo tainment and the connected batch of cases. Though, le ave was not granted by this Court, reasons have been assigned by this Court f or rejecting the Special Leave Pe tition. The law declared woul d attrac t the applicability of Article 141 of the Constitution. For, as this Court has held in Kunhayammed: “40...Where the order rejecting an SLP is a spe aking order, that is, where re asons have been assigned by this Court f or rejecting the pe ti tion f or special l eave and are stated in the order still the order remains the one rejecting prayer f or the grant of leave to appeal. The petitioner has been turned away at the threshold withou t h aving been allo wed to enter in the appellate jurisd iction of this Court. He re also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attrac t applicability of Article 141 of the Constitu tion. The reasons assigned by this Court in its order expressing its ad judication (expressly or by necessary implication) on poin t of f act or l aw sh all take away the jurisdiction of any o ther court, tribunal or authority to express an y opinion in conflict with or in d epar ture f rom the view taken by this Court because permitting to d o so would be subversive of jud icial discipline and an aff ront to the order of this Court. Ho wever this would be so not by ref erence to the doctrine of merger.” 27 The submission ho wever which has been urged on behalf of the Revenue is that a contrary position emerges f rom the decision of the Delhi High Court in Skylight Hospital ity LLP which was af f irmed on 6 April 2018 by a two judge Bench of ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 12 - this Court consisting of Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice Ashok Bhushan33 . In assessing the merits of the above submission, it is necessary to extrac t the ord er dated 6 April 2018 of this Court: “ In the peculiar f acts of this case, we are convinced th at wrong name given in the notice was merely a clerical error which could be corrected und er S ectio n 292B of the Inco me Tax Act. The special leave pe tition is dismissed. Pending appl ications s tand dispo sed of .” No w, it is evid ent f rom the above extrac t that it was in the peculiar f ac ts of the case that this Court ind icated its agreement that the wrong name given in the no tice was merel y a clerical error, capabl e of being corrected under Section 292B. The “peculiar f acts” of Skylight Hospital ity e merge f rom the d ecision of the Delhi High Court34 . Skyligh t Hospital ity, an LLP, had taken over on 13 May 2016 and acquired the righ ts and l iabilities of Skylight Hospitality Pvt. Ltd upon conversion und er the Limited Liability Partnership Act 200835. It insti tu ted writ proceedings f or challenging a notice und er Sections 147/148 of the Act 1961 dated 30 March 2017 f or AY 2010-2011. The “reasons to believe” mad e a ref erence to a tax ev asion report received f rom the investigation unit of the income tax department. T he f acts were ascertained by the investigation unit. The reasons to be lieve ref erred to the asse ssment order f or AY 2013-2014 and the f indings recorded in it. Though the no tice under S ections 147/148 was issued in the name of S kylight Hospital ity Pvt. Ltd . (wh ich had ceased to exist upon conversion in to an LLP), there was, as the Delhi High Court held “substan ti al and af f irmative material and evidence on record” to show that the issu ance of the notice in the name of the d issolved company was a mistake. The tax ev asion report ad ve rted to the conversion of the private limited company into an LLP. Moreover, the reasons to believe recorded by the assessing off icer adverted to the approval of the Principal Commissioner. The PAN number of the LLP was al so mentioned in some of the documents. The notice und er ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 13 - Sections 147/148 was not in conf ormity with the re asons to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case f ell within the purview of Section 292B f or the f ollowin g reasons: “18...There was no doubt and debate th at the no tice was mean t f or the pe titioner and no one else. Legal error and mistake was made in addressing the notice. No ticeabl y, the appellant having received the said notice, had f iled without prejudice reply/letter dated 11.04.2017. They had objected to the notice be ing issued in the name of the Company, which had ce ased to exis t. Ho wever, the reading of the said le tter ind icates that the y had understood and were aware, that the notice was f or them. It was replied and deal t with by th em. The f act that notice was add ressed to M/s. Skylight Hospital ity Pv t. Ltd ., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused.” 28 The decision in Spice En tertain me nt was distinguished with the f ollowing observations: “19. Pe titioner relies on Spice Inf otainment Ltd . v. Commissioner of Service Tax, (2012) 247 CTR 500. Spice Corp. Ltd ., the co mpany that h ad f il ed the re turn, had amalgamated with another company. Af ter no tice under Section 147/148 of the Act was issued and received in the name of S pice Corp. Ltd ., the Assessing Off icer was inf ormed about amalgamation bu t the Asse ssment Order was passe d in the name of the amal gamated compan y and not in the name of amal gamating company. In the said situation, the amal gamating compan y had f iled an appeal and issue of validity of Assessmen t Ord er was raised and examined. It was held that the assessment order was inv alid. This was not a case wherein no tice und er Section 147/148 of the Act was declared to be void and inv alid but a case in which assessment order was passed in the name of and again st a juristic person which had ce ased to exis t and stood dissolved as per provisions of the Companies ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 14 - Act. Ord er was in the name of non-existin g person and hence void and illegal.” 29 From a read ing of the order of this C ourt d ated 6 April 2018 in the Special Leave Pe tition f iled by S kylight Hospital ity LLP again st the judgment of the Delhi High Court rejec ting its challenge, it is evid ent that the pecu liar f acts of the case weighed with this Court in co ming to this conclusion that there was only a clerical mistake within the me aning of Section 292B. The decisio n in Skyligh t Hospital ity LLP has been distinguished by the Delhi, Gu jarat an d Madras High Courts in: (i) Rajend er Kumar S ehgal; (ii) Chandreshbhai Jayan tibhai Patel; and (iii) Alamelu Veerappan. 30 There is no conflict be tween the decisions of this Court in Spice Enf otainment (dated 2 November 2017) 36 and in Skylight Hospital ity LLP (d ated 6 April 201837). 31 Mr Zoheb Hossain, learned Counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice th at was in issue in Skylight Hospital ity Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the f ac t that the notice is of a jurisdictional nature f or reopening an assessment, this Court did not f ind any inf irmity in the decision of the Delhi High Court hold ing that the issuance of a no tice to an erstwhile priv ate limited compan y which had since been d issol ved was onl y a mistake curable under Section 292B. A close reading of the ord er of this Court dated 6 April 2018, however ind icates that what weighed in the d ismissal of the Special Leave Petition were the peculiar f acts of the case. Those f acts have been no ted above. What had we ighed with the Delhi High Court was th at though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report sugges ted that there was no manner of doubt that the notice was al ways intended to be issued to the successor entity. Hence, whil e dismissing the S pecial Le ave Pe tition this Court observed that it was the peculiar f acts of the case which ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 15 - led the court to accept the f ind ing that the wrong n ame given in the no tice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict be tween the d ecisions in Spice Enfotainment on the one hand and Skylight Hospital ity LLP on the o ther hand . It is of relevance to ref er to Section 292B of the Inco me Tax Act which reads as f ollows: “292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been f urnished or made or issued or taken in pursuance of any of the provisions of this Act shall be inv alid or shall be d eemed to be inv alid merely by reason of an y mistake, def ect or omission in such return of income, asse ssment, notice, summons or o ther proceeding if such return of income, assessmen t, notice, summons or other proceed ing is in substance and eff ect in conf ormity with or according to the inte nt and purpose of this Act.” In this case, the notice under Sectio n 143(2) under which jurisdiction was assumed by the assessing off icer was issued to a non-existent company. T he assessmen t order was issued ag ainst the amal gamating company. This is a substantive illegality and not a procedural viol ation of the n ature adverted to in Section 292B. In this context, it is necessary to adv ert to the provisions of Section 170 which d eal with succession to business otherwise than on death. Section 170 provid es as f ollows: “170. (1) Where a person carrying on any business or prof ession (such person hereinaf ter in this section being ref erred to as the predecessor) has been succeeded therein by an y other person (hereinaf ter in this se ction ref erred to as the successor) who continues to carry on that business or prof ession,— (a) the pred ecessor sh all be assesseed in respect of the income of the previous year in wh ich the succession took pl ace up to the date of succession; ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 16 - (b) the successor shall be assesseed in respect of the income of the previous year af ter the date of succession. (2) Notwiths tand ing anything contained in sub-section (1 ), when the predecessor cannot be f ound , the assessment of the income of the previous ye ar in wh ich the succession took pl ace up to the d ate of succession and of the previous year preceding that ye ar shall be mad e on the successor in like manner and to the same ex tent as it wo uld have been mad e on the predecessor, an d all the provisions of this Act shal l, so f ar as may be, appl y accordingly. (3) When any sum payabl e under this section in respec t of the income of such business or prof ession for the previous year in which the successio n took pl ace up to the date of succession or f or the previous year preceding th at ye ar, assesseed on the predecessor, cannot be recovered f rom him, the 99[Assessing] Off icer shall record a f ind ing to that eff ect and the sum payable by the predecessor shal l thereaf ter be payable by and recoverable f rom the successor and the successor shall be entitled to recover f rom the predecessor any sum so paid. (4) Where any business or prof ession carried on by a Hindu undivided f amily is succeed ed to, and simultaneously with the succession or af ter the succession there has been a partition of the joint f amily property be tween the members or grou ps of members, the tax due in respect of the income of the business or prof ession succeeded to, u p to the d ate of succession, shall be assesseed and recovered in the man ner provided in section 171, but withou t prejud ice to the pro visions of this section. Explan ation.—For the purposes of this section, “income” includes any g ain accruing f rom the transf er, in any manner whatsoever, of the business or prof ession as a result of the succession” ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 17 - Now, in the pre sent case, le arned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible asse ssee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it h as been urged that in consequence, the f inal assessment order dated 31 October 2016 was be yond limitation in terms of Section 153(1) read with Section 153 (4 ). For the purposes of the present proceed ing, we do not consider it necessary to del ve into that aspect of the matter hav ing regard to the reasons which have weighed us in the earlier part of this judgment. 32 On behalf of the Revenue, reliance has been placed on the decision of this C ourt in Commissioner of Income T ax, Shillong v Jai Prakash S ingh38 (“Jai Prakash Singh”). That was a case where the assessee did not f ile a re turn f or three assessment ye ars and died in the meantime. His son who was one of the legal represen tatives f iled returns upon which the assessing off icer issued notices under S ection 142 (1 ) and Section 143 (2). These were co mplied with and no objections were raised to the assessment proceed ings. The assessment ord er mentioned the names of all the legal represen tatives and the asse ssment was made in the status of an ind ivid ual . In appeal, it was contended that the assessmen t proceed ings were void as all the legal representative s were no t given notice. In th is backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this contex t, rel iance was pl aced on the decision of the Federal Court in Chatturam v C IT39 holding th at the jurisdiction to asse ss and the liability to pay tax are not cond itional on the validity of the notice : the liabil ity to pay tax is f ounded in the charging sections and not in the machinery provisions to de termine the amount of tax. Reliance was al so pl aced on the decision in Mah araja of Patial a v C IT40 (“Mah araja of Patial a”). That was a case where two notices were issued af ter the de ath of the asse ssee in his name, requiring him to make a return of income. The notice s ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 18 - were served upon the successor Mah araja and the asse ssment order was passed describing the assessee as “His Highness...late Maharaja of Patial a”. The successor appe aled ag ainst the assessment contending that since the notice s we re sent in the name of the Maharaj a of Patial a and no t to him as the legal representative of the Maharaja of Pati al a, the asse ssments were illegal. The Bombay High Court held that the succe ssor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the no tice, the notice was not bad merely bec ause it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh held that an o mission to serve or any def ect in the service of notices provid ed by procedural provisions d oes not ef f ace or erase the liability to pay tax where the liability is created by a distinct substan tive provision. The omission or d efect may render the order irregular but not void or illegal. Jai Prakash Singh and the two decisions that it placed reliance upon were evid en tly based u pon the specif ic f acts. Jai Prakash Singh invol ved a situation where the re turn of income h ad been f iled by one of the legal representative s to whom notices were issued under Section 142(1) and 143(2 ). No objection was raised by the legal represen tative who had f iled the return that a notice should also to be served to o ther legal representatives of the deceased asse ssee. No objection was raised bef ore the assessing of f icer. Simil arly, the decision in Mah araja of Patial a was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held th at it was no t void merel y because it omitted to state that it was served in that capacity. 33 In the presen t case, despite the f ac t that the assessing off icer was inf ormed of the amal gamating co mpany having ceased to exist as a resul t of the approved scheme of amal gamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 19 - f undamen tally at odds with the legal principl e that the amal gamatin g entity ce ases to exist upon the approved scheme of amal gamation. Participation in the proceedings by the appell ant in the circumstances canno t operate as an estoppel agains t l aw. T his position now holds the field in view of the jud gmen t of a co-ordinate Bench of two le arned judges which d ismissed the appe al of the Revenue in Spice Enf otain ment on 2 November 2017. The d ecision in Spice Enf otain ment has been f ollowed in the case of the respondent while dismissing th e Special Leave Pe tition f or AY 2011-2012. In doing so, th is C ourt has relied on the decision in Spice Enf otain ment. 34 We f ind no reason to take a diff erent vie w. There is a v al ue which the court must abid e by in promo ting the in terest of certain ty in tax litig ation. The view wh ich has been taken by this Court in relation to the respond ent f or AY 2011-12 must, in our view be adopted in respec t of the present appeal which relates to AY 2012-13. No t doing so will only result in uncertainty and displacement of settled expectations. There is a signif icant val ue which must attach to o bserv ing the requirement of consis tency and certainty. Ind ivid ual affairs are conducted and business decisions are made in the expectation of consis tency, unif ormity and certain ty. To detrac t f rom those principles is neither expedient nor desirable. 35 For the above reasons, we f ind no meri t in the appeal. The appeal is accordingly d ismissed. There shall be no order as to costs. 11. We find the ratio of decision of Hon’ble Supreme Court is binding on us and the Ld.DR could not substantiate with any new cogent material or ITA No. 1146/Mum/2018 Siemens Ltd., Mumbai. - 20 - information. Accordingly we find the issue is squarely covered in favour of the assessee and quash the assessment order. Since we have adjudicated the legal issue and allowed in favour of the assessee adjudicating on the merits of the case become academic and are left open. 12. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 31.01.2022. Sd/- Sd/- (PRAMOD KUMAR) (PAVAN KUMAR GADALE) VICE PRESIDENT JUDICIAL MEMBER Mumbai, Dated 31.01.2022. KRK, PS /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. आ र आ / The CIT(A) 4. आ र आ ( ) / Concerned CIT 5. "#$ % & &' , आ र ) र*, हमद द / DR, ITAT, Mumbai 6. % -. / 0 / Guard file. ान ु सार/ BY ORDER, " & //True Copy// 1. ( Asst. Registrar) ITAT, Mumba