M/s United Spirits Limited , Bangalore V. Assistant Commissioner of Income Tax Central Circle-2(3), Bangalore

ITA 1153/BANG/2013

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5343 (ITAT-BANGALORE)
• Duration Of Justice: 6 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 18-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PERCY PARDIWALA SR
• Keywords: Procedural lapse; Scheme of amalgamation; Reason to believe
• Section: 143(3); 150(1); 13; 153; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.1153/BANG/2013 ASSESSMENT YEAR : 2005-06 UNITED SPIRITS LIMITED (SUCCESSOR TO HERBERTSONS LTD.,) NO.24, UB TOWER, VITTAL MALLYA ROAD, BENGALURU-560 001. PAN AACCM 8043 J. VS. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(3), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI PERCY PARDIWALA, SR. COUNSEL RESPONDENT BY : SHRI PRADEEP KUMAR, CIT DATE OF HEARING : 18.11.2019 DATE OF PRONOUNCEMENT : 14.02.2020 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE COMMON ORDER DATED 11.03.2013 PASSED BY LD CIT(A), MYSORE AND IT RELATES TO THE ASSESSMENT YEAR 2005-06. 2. THOUGH THE ASSESSEE HAS RAISED MANY GROUNDS AND AN ADDITIONAL GROUND, THE LD A.R RESTRICTED HIS ARGUME NT ON A LEGAL ITA NO.1153 /BANG/2013 PAGE 2 OF 13 ISSUE, VIZ., WHETHER THE IMPUGNED ASSESSMENT ORDER PASSED BY THE AO IS VALID IN LAW? 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE FACTS NECESSARY FOR ADJUDICATION OF ABOVE SAID LEGAL ISSU E, WHICH WERE BROUGHT TO OUR NOTICE BY LD A.R, ARE SUMMARIZED BEL OW:- (A) THE COMPANY M/S HERBERTSON LTD MERGED WITH M/ S MCDOWELL & CO LTD WITH EFFECT FROM 1.4.2005 (APPOIN TED DATE). THE NAME OF AMALGAMATING COMPANY WAS CHANGED FROM M/S M CDOWELL & CO LTD TO M/S UNITED SPIRITS LTD. THE AMALGAMATION SCHEME WAS APPROVED BY THE HON'BLE KARNATAKA HIGH COURT, VIDE ITS ORDER DATED 23.6.2006 AND BY THE HON'BLE BOMBAY HIGH COURT, VID E ITS ORDER DATED 31.7.2006. (B) THE REGISTERED OFFICER OF M/S HERBERTSONS LT D WAS IN MUMBAI AND THE REGISTERED OFFICER OF M/S UNITED SPI RITS LTD WAS IN BANGALORE. (C) HENCE, THE ASSESSEE NAMED M/S HERBERTSON LTD CEASED TO EXIST WITH EFFECT FROM 1.4.2005. (D) THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS FILED ON 29-10-2005 UNDER THE NAM E M/S HERBERTSONS LTD. (I.E., PRIOR TO THE ORDERS OF HON 'BLE HIGH COURTS) (E) THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U/S 143(3) ON 31.12.2007 IN THE NAME OF M/S HERBERTSON S LTD. THE ASSESSING OFFICER WAS THE ADDITIONAL CIT, RANGE 2(1 ), MUMBAI. (F) THE LD CIT(A), VIDE HIS ORDER DATED 26.11.20 08 PASSED IN THE NAME OF M/S HERBERTSONS LTD, HOWEVER, QUASHED THE ASSESSMENT ORDER WITH THE FOLLOWING OBSERVATIONS:- ITA NO.1153 /BANG/2013 PAGE 3 OF 13 I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUB MISSIONS FILED BY THE APPELLANT BEFORE THE AO AS ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS. I HAVE CONSIDERED THE DE CISIONS RELIED BY THE AR. IT IS SEEN THAT A COMPOSITE SCHE ME OF ARRANGEMENT WAS ARRIVED AT IN BETWEEN THE APPELLANT COMPANY AND OTHERS, WHERE UNDER THE APPELLANT COMPANY WAS T O MERGE WITH UNITED SPRITIS LTD. AS PER THE SCHEME, THE ME RGER APPOINTED DATE WAS W.E.F. 1.4.2005. THE SCHEME WAS APPROVED BY THE HON'BLE KARNATAKA HIGH COURT VIDE O RDER DATED 23.6.2006 AND BY THE HON'BLE BOMBAY HIGH COUR T VIDE ORDER DATED 31.7.2006. AS PER THE ORDERS PASSED, T HE APPELLANT COMPANY WAS ALLOWED TO BE MERGED WITH UNI TED SPIRITS LTD. AS NO SPECIFIC DATE OF MERGER WAS STI PULATED BY THE HON'BLE COURTS, THE MERGER IS DEEMED TO BE W.E.F TH E EFFECTIVE DATE SPECIFIED IN THE COMPOSITE SCHEME OF ARRANGEME NT AND FROM THE SAID DATE HAS LOST ITS INDIVIDUAL EXISTENC E, AS PER THE APPROVAL OF THE COMPOSITE SCHEME OF ARRANGEMENT BY THE HON'BLE COURTS. THE AO HENCE COULD NOT CONTINUE WI TH THE JURISDICTION ASSUMED TO ASSESS/REASSESS THE APPELLA NT COMPANY. THE JURISDICTION TO REASSESS THE INCOME, WHICH HAS ESCAPED ASSESSMENT, WOULD BE WITH THE JURISDICTIONA L OFFICER HOLDING CHARGE OVER UNITED SPIRITS LTD. (G) THEREAFTER, THE ASSESSING OFFICER LOCATED IN BANGALORE, VIZ., THE ASSISTANT COMMISSIONER OF INCOME TAX, CEN TRAL CIRCLE-2(3), BANGALORE RE-OPENED THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION BY ISSUING NOTICE U/S 148 OF TH E ACT. THE NOTICE WAS ISSUED TO THE FOLLOWING NAME:- ITA NO.1153 /BANG/2013 PAGE 4 OF 13 M/S HERBERTSONS LTD (SINCE AMALGAMATED WITH M/S MC DOWELL & COMPANY LTD; NOW RENAMED AS M/S UNITED SPIRITS LTD.) UB TOWER, 24 VITTAL MALLYA ROAD, BANGALORE 560 001. (H) ACCORDINGLY, THE ASSESSING OFFICER PASSED THE IMPUGNED ASSESSMENT ORDER U/S 143(3) R.W.S 147 OF THE ACT IN THE NAME OF M/S HERBERTSONS LTD FURTHER NOTING THE AMALGAMAT ION DETAILS IN BRACKET AS MENTIONED IN THE PRECEDING PA RAGRAPH. (I) BEFORE LD CIT(A), THE ASSESSEE CONTENDED THAT THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED ON A NON- EXISTENT COMPANY. ACCORDINGLY IT WAS SUBMITTED THA T THE IMPUGNED ASSESSMENT ORDER CANNOT BE CONSIDERED AS A N ASSESSMENT DONE IN THE HANDS OF M/S UNITED SPIRITS LTD. THE LD CIT(A), HOWEVER, REJECTED THE CONTENTIONS OF THE ASSESSEE WITH THE FOLLOWING OBSERVATIONS:- 3.7 CLEARLY IN THE CASE OF THE APPELLANT, ALL THE CONDITIONS ARE SATISFIED. THERE IS A FINDING BASED ON WHICH THE REOPENING WAS DONE AND RESTRICTIONS IMPOSED IN SUBSECTION 2 ARE NOT ATTRACTED. HENCE, THIS ARGUMENT OF THE APPELLANT IS LEGALLY NOT CORRECT. I DO NOT FIND STRENGTH IN T HE ARGUMENT OF THE APPELLANT THAT THE COMPANY IS NOT EXISTENT, THE ASSESSMENT OF UNITED SPIRITS IS DONE BY THE SAME OFFICER AND THE PRESENT ORDER ON NON EXISTENT COMPANY IS BAD IN LAW. THE ITA NO.1153 /BANG/2013 PAGE 5 OF 13 MERGER IS WITH EFFECT FROM 1.4.2005 PERTAINING TO THE ASSESSMENT YEAR 2006-07. THE ASSESSMENTS INVOLVED ARE FOR AYS 200304 TO 2005-06 WHICH ARE PERIODS PRIOR TO DATE OF MERGER I.E. 1.4.05. THE COMPANY WAS IN EXISTENCE IN THAT PERIOD AND WAS RIGHTLY ASSESSED SO BY THE AO. THE ONLY DISPUTE IN EARLIER APPEAL ON WHICH THE ORDER WAS ANNULLED WAS ON THE ISSUE OF JURISDICTION SINCE IT WAS CONTENDED ON THE DATE OF ORDER THE OFFICER OF UNITED SPIRITS HAD JURISDICTION ON THE APPELLANT THOUGH THE ISSUE PERTAINS TO THE PERIOD PRIOR TO MERGER. THE ACTION OF THE AO IS AS PER LAW. 3.8 THE NEXT ISSUE OF CONTENTION OF THE APPELLANT IS REGARDING ABSENCE OF ANY FAILURE ON THE PART OF THE ASSESSEE TO INITIATE PROCEEDINGS U/S 148. IT IS FAIRLY ESTABLISHED NOW UNDER THE AMENDED PROVISIONS, WHAT IS REQUIRED, IS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND SECTION 147 IS SUBJECT TO PROVISIONS OF SECTION 148 TO 153 WHICH INCLUDES SECTION 150, WHICH BY IMPLICATIONS MEANS THAT IF THERE IS AN ESCAPEMENT OF INCOME WHICH IS A SUBJECT MATTER OF SECTION 150, AO IS WELL WITHIN HIS POWERS TO REOPEN THE ASSESSMENT. 3.9 THE ORIGINAL ORDER U/S 147 WAS PASSED WITHIN 4 YEARS. SO, FAILURE TO FURNISH RELEVANT DETAILS IS NOT RELEVANT. THE PRESENT ORDER IS U/S ITA NO.1153 /BANG/2013 PAGE 6 OF 13 150(1) TAKING FINDING OF THE CIT(APPEALS) THAT THE PRESENT AO IS THE JURISDICTIONAL OFFICER. PROCEDURALLY THE AO HAS FOLLOWED THE DUE PROCEDURE AND HAS EVEN FURNISHED THE REASONS RECORDED. HENCE, THE LEGAL GROUNDS ARE NOT TENABLE AND THE ORDER IS LEGALLY VALID AND ACCORDINGLY THESE GROUNDS ARE DISMISS. THE LD CIT(A) HAS TAKEN THE VIEW THAT THE IMPUGNED ASSESSMENT YEAR, BEING AY 2005-06, IS FOR THE PERIO D PRIOR TO THE APPOINTED DATE OF 1.4.2005 AND SINCE THE COMPAN Y WAS IN EXISTENCE IN THAT PERIOD, THE SAME WAS RIGHTLY ASSE SSED BY THE AO IN THE HANDS OF M/S HERBERTSONS LTD. (J) THE ASSESSEE IS CHALLENGING THE ABOVE SAID DE CISION OF LD CIT(A) RENDERED ON THIS LEGAL ISSUE. 4. THE LD A.R SUBMITTED THAT THE ASSESSMENT ORD ER PASSED IN THE NAME OF M/S HERBERTSONS LTD IS BAD IN LAW, AS THE S AME HAS BEEN PASSED IN THE HANDS OF NON-EXISTENT COMPANY. IN SU PPORT OF THIS PROPOSITION, THE LD A.R PLACED HIS RELIANCE ON THE FOLLOWING CASE LAW:- (A) PCIT VS. MARUTI SUZUKI INDIA LTD (2019)(107 TAX MANN.COM 375)(SC) (B) INTEL TECHNOLOGY INDIA (P) LTD (2015)(380 ITR 272)(KAR). ITA NO.1153 /BANG/2013 PAGE 7 OF 13 5. THE LD A.R FURTHER SUBMITTED THE NOTING MADE BY THE ASSESSING OFFICER ABOUT THE MERGER WITH M/S MC DOWE LL & COMPANY LTD AND CHANGE OF NAME TO M/S UNITED SPIRITS LTD AL ONG WITH THE NAME OF M/S HERBERTSONS LTD WILL NOT ALTER THE LE GAL POSITION. IN SUPPORT OF THIS PROPOSITION, HE RELIED UPON THE DEC ISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF M/S MARUTI SUZ UKI LTD (SUPRA). 6. ON THE CONTRARY, THE LD D.R SUPPORTED THE VI EW TAKEN BY LD CIT(A) ON THIS ISSUE. 7. WE NOTICE THAT THE HON'BLE KARNATAKA HIGH COU RT HAS CONSIDERED AN IDENTICAL ISSUE IN THE CASE OF M/S IN TEL TECHNOLOGY INDIA (P) LTD (SUPRA). THE FACTS OF THE CASE PERTA INING TO THE ASSESSEE BEFORE HON'BLE KARNATAKA HIGH COURT ARE TH AT A COMPANY NAMED M/S SOFTWARE & SILICON SYSTEMS INDIA P LTD (S SL LTD) FILED ITS RETURN OF INCOME FOR AY 2003-04 ON 28.11.2003. THE SAID COMPANY WAS AMALGAMATED WITH M/S INTEL TECHNOLOGY I NDIA P LTD WITH EFFECT FROM 1.4.2004, VIDE ORDER DATED 28-05-2 004 PASSED BY HON'BLE KARNATAKA HIGH COURT. THE AO, HOWEVER, PAS SED THE ASSESSMENT ORDER IN THE NAME OF M/S SSL LTD, EVEN T HOUGH THE FACT OF MERGER OF THE ASSESSEE WITH M/S INTEL TECHNOLOGY INDIA P LTD WAS INTIMATED TO HIM. THE ITAT HELD THAT THE ASSESSMEN T ORDER PASSED BY THE ASSESSING OFFICER WAS NULL AND VOID AND WITH OUT JURISDICTION AND ACCORDINGLY QUASHED THE SAME. WHEN THE MATTER WAS TAKEN BEFORE HON'BLE KARNATAKA HIGH COURT, THE VIEW OF TH E ITAT WAS UPHELD. THE RELEVANT OBSERVATIONS MADE BY HON'BLE KARNATAKA HIGH COURT ARE EXTRACTED BELOW:- ITA NO.1153 /BANG/2013 PAGE 8 OF 13 4. THIS APPEAL WAS ADMITTED BY ORDER DATED 21.7.2010 ON THE SUBSTANTIAL QUESTIONS OF LAW AS HAD BEEN FRAMED IN THE MEMO WHICH READS AS UNDER : (1) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFICER ON M/S SOFTWARE & S ILICON SYSTEMS INDIA PVT. LTD., AFTER BEING INTIMATED ABOU T THE MERGER WITH M/S INTEL TECHNOLOGY INDIA PVT. LTD., WAS WITH OUT JURISDICTION AGAINST THE SAI D COMPANY AND NULL AND VOID ? (2) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT TH E PROVISIONS OF SECTION 292B OF THE ACT WILL NOT MAKE THE ASSESS MENT VALID AS A DEFECT/OMISSION TO INCORPORATE THE NAME OF M/S INTEL TECHNOLOGY INDIA PVT. LTD., IN THE ASSESSMENT ORDER AS THE SAME IS NOT IN SUBSTANCE AND EFFECT IN CONFIRMATIVE WITH OR ACCORDING TO THE INTEND AND PURPOSE OF THIS ACT? (3) WHETHER THE TRIBUNAL HAS TO EXAMINE THE MATTER ON M ERITS AND RECORD FINDING ON THE CONTROVERSY RAISED BEFORE IT BOTH BY THE REVENUE AS WELL AS THE ASSESSEE IN THEIR SEPARATE A PPEALS? 5. THE TRIBUNAL HAD REJECTED THE CLAIM OF THE DEPARTM ENT ON THE GROUND THAT THE ASSESSMENT PROCEEDINGS AGAINST SSS LIMITED (WHICH WAS NON-EXISTENT ON THE DATE OF PASSING OF T HE ASSESSMENT ORDER) CANNOT BE HELD TO BE VALID PROCEEDINGS, LEAR NED COUNSEL FOR THE APPELLANT HAS SUBMITTED THAT THE RETURN OF INCOME HAD BEEN FILED BY THE ASSESSEE-SSS LIMITED MUCH PRIOR T O THE AMALGAMATION ORDER DATED 1.4.2004 AND AS SUCH, THE PROCEEDINGS WOULD CONTINUE AGAINST THE SAID COMPANY EVEN AFTER THE AMALGAMATION, ESPECIALLY WHEN THE SUCCESSOR COMPANY - M/S INTEL TECHNOLOGY INDIA PVT. LTD. HAD PARTICIPATED I N THE PROCEEDINGS. LEARNED COUNSEL FOR THE APPELLANT FURT HER SUBMITS THAT THE DEPARTMENT WOULD BE ENTITLED TO THE BENEFI T OF SECTION 292(B) OF THE INCOME TAX ACT. 6. ON THE OTHER HAND, LEARNED COUNSEL FOR THE RESPOND ENT HAS SUBMITTED THAT ANY PROCEEDING AGAINST A NON-EXISTIN G COMPANY WOULD BE NULL AND VOID, ESPECIALLY AFTER THE RESPON DENT/COMPANY ITA NO.1153 /BANG/2013 PAGE 9 OF 13 (WHICH HAD SUCCEEDED M/S SSS LIMITED) HAD GIVEN NOT ICE OF AMALGAMATION TO THE DEPARTMENT ON 29.6.2004. IT IS THUS SUBMITTED THAT AFTER THE ISSUANCE OF THE DEMAND NOT ICE, IT WAS FOR THE DEPARTMENT TO SUBSTITUTE THE RESPONDENT COMPANY IN THE PROCEEDINGS FOR ASSESSMENT AND BY NOT HAVING DONE S O, THE ENTIRE ASSESSMENT PROCEEDINGS WOULD BE NULL AND VOID. IN S UPPORT OF HIS SUBMISSION, LEARNED COUNSEL FOR THE RESPONDENT HAS PLACED RELIANCE ON A DIVISION BENCH DECISION OF THE DELHI HIGH COURT RENDERED IN SPICE INFOTAINMENT LTD. V. CIT [IT APPEAL NOS. 475 & 476 OF 2011, DATED 3-8-2011]. IT IS CONTENDED THA T THE FACTS OF THE PRESENT CASE ARE SIMILAR, IF NOT IDENTICAL, TO THE FACTS IN THE CASE OF SPICE INFOTAINMENT LTD. ( SUPRA ) WHEREIN THE DELHI HIGH COURT HAS, AFTER CONSIDERING THE VARIOUS PROVISIONS OF THE INCOME TAX ACT AS WELL AS CERTAIN DECISIONS OF THE APEX CO URT AND OTHER HIGH COURTS, CLEARLY HELD THAT THE FRAMING OF ASSES SMENT AGAINST THE NON-EXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY, BUT, A JURI SDICTIONAL DEFECT AND AS THERE CANNOT BE ANY ASSESSMENT AGAINST THE D EAD PERSON. 7. IN THE PRESENT CASE ALSO, THE PROCEEDINGS HAD BEEN INITIATED AGAINST A NON-EXISTING COMPANY/SSS LIMITED EVEN AFT ER THE AMALGAMATION OF THE SAID COMPANY WITH M/S INTEL TEC HNOLOGY INDIA PVT. LTD.. WE DO NOT SEE ANY GOOD GROUND TO D IFFER WITH THE SAID JUDGMENT OF THE DELHI HIGH COURT. 8. ACCORDINGLY, FOR THE REASONS GIVEN IN THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD. ( SUPRA ), THESE APPEALS ARE DISMISSED AND WE DECIDE THE SUBST ANTIAL QUESTIONS OF LAW IN FAVOUR OF THE ASSESSEE AND AGAI NST THE REVENUE. 9. WE MAY, HOWEVER, MENTION THAT ON THE BASIS OF THE RETURNS FILED BY SSS LIMITED FOR THE ASSESSMENT YEAR 2003-0 4, THE DEPARTMENT MAY PROCEED FOR MAKING ASSESSMENT IN ACC ORDANCE WITH LAW AND IN TERMS OF THE PROVISIONS OF THE INCO ME TAX ACT, 1961. THESE APPEALS STAND DISPOSED OFF IN THE AFORESAID T ERMS. ITA NO.1153 /BANG/2013 PAGE 10 OF 13 IN VIEW OF THE ABOVE SAID BINDING DECISION OF HON'B LE KARNATAKA HIGH COURT, THE VIEW EXPRESSED BY LD CIT(A) THAT TH E ASSESSMENT WAS PERTAINING TO THE PERIOD PRIOR TO THE DATE OF M ERGER IS LIABLE TO BE QUASHED. 8. WE HAVE EARLIER NOTICED THAT THE ASSESSING O FFICER HAS PASSED THE ORDER MENTIONING THE DETAILS OF AMALGAMATION AS UNDER:- M/S HERBERTSONS LTD (SINCE AMALGAMATED WITH M/S MC DOWELL & COMPANY LTD; NOW RENAMED AS M/S UNITED SPIRITS LTD.) UB TOWER, 24 VITTAL MALLYA ROAD, BANGALORE 560 001. PASSING OF ORDER IN THE ABOVE SAID STYLE WAS REJECT ED BY HON'BLE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LT D (SUPRA). IN THE CASE BEFORE HON'BLE APEX COURT, THE ASSESSMENT ORDER WAS FRAMED IN THE NAME OF M/S SUZUKI POWER TRAIN INDIA LTD ON 31.12.2016. HOWEVER, UNDER A SCHEME OF AMALGAMATIO N DATED 29- 01-2013, THE ABOVE SAID COMPANY WAS AMALGAMATED WIT H M/S MARUTI SUZUKI INDIA LTD WITH EFFECT FROM 01-04-2012 . IN FACT, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER I N THE NAME OF M/S SUZUKI POWER TRAIN INDIA LTD MENTIONING THE DET AILS OF AMALGAMATION AS UNDER:- SUZUKI POWER TRAIN INDIA LTD (AMALGAMATED WITH MARUTI SUZUKI INDIA LTD.) IT IS PERTINENT TO NOTE THAT THE ABOVE SAID ASSESSE E HAD INFORMED THE DETAILS OF AMALGAMATION TO THE ASSESSING OFFICER DU RING THE COURSE OF ASSESSMENT PROCEEDING AND THE LD DISPUTE RESOLUTION PANEL HAD ISSUED ITS DIRECTIONS IN THE NAME OF MARUTI SUZUKI INDIA LTD (AS ITA NO.1153 /BANG/2013 PAGE 11 OF 13 SUCCESSOR IN INTEREST OF ERSTWHILE SPIK SINCE AMALG AMATED). HOWEVER, THE ASSESSING OFFICER CHOSE TO PASS THE AS SESSMENT ORDER IN THE NAME OF SUZUKI POWER TRAIN INDIA LTD. UND ER THESE SET OF FACTS, THE HON'BLE SUPREME COURT HELD AS UNDER:- 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 EXIST UPON THE APPROVED SCHEME OF AMALGAMATION. PARTICIPATION IN THE PROCEEDINGS BY THE APPELLANT IN THE CIRCUMSTANCES CANNOT OPERATE A S AN ESTOPPELS AGAINST LAW. THIS POSITION NOW HOLDS T HE FIELD IN VIEW OF THE JUDGMENT OF A CO-ORDINATE BENC H OF TWO LEARNED JUDGES WHICH DISMISSED THE APPEAL OF TH E REVENUE IN SPICE ENFOTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENFOTAINMENT HAS BEEN FOLLOWE D IN THE CASE OF THE RESPONDENT WHILE ISSUING THE SPE CIAL LEAVE PETITION FOR AY 2011-2012. IN DOING SO, THIS COURT HAS RELIED ON THE SPICE ENFOTAINMENT. 9. IN THE INSTANT CASE, THE DETAILS OF AMALGAMA TION WERE NOTICED BY THE REVENUE IN THE ORIGINAL ASSESSMENT PROCEEDIN GS ITSELF. DESPITE THIS FACT, THE ASSESSING OFFICER HAS CHOSEN , IN THE INSTANT CASE, TO PASS THE IMPUGNED REASSESSMENT ORDER IN TH E NAME OF M/S ITA NO.1153 /BANG/2013 PAGE 12 OF 13 HERBERTSONS LTD, WHICH WAS A NON-EXISTENT COMPANY O N THE DATE OF PASSING OF THE ASSESSMENT ORDER. HENCE, IN VIEW OF THE BINDING DECISIONS RENDERED BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF INTEL TECHNOLOGY INDIA (P) LTD (SUPRA) AND BY HON'B LE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LTD (SUPRA ), WE HOLD THAT THE IMPUGNED ASSESSMENT ORDER IS NULL AND VOID. AC CORDINGLY, THE SAME IS QUASHED. HOWEVER, AS OBSERVED BY HON'BLE K ARNATAKA HIGH COURT IN PARAGRAPH 9 OF ITS ORDER IN THE CASE OF IN TEL TECHNOLOGY INDIA P LTD, THE REVENUE MAY PROCEED IN ACCORDANCE WITH THE LAW AND IN TERMS OF PROVISIONS OF THE INCOME TAX ACT IN RESPECT OF RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2020. SD/ - (PAVAN KUMAR GADALE) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, THE 14 TH FEBRUARY, 2020. /VMS/ COPY TO: 1. APPELLANT (S) / CROSS OBJECTOR(S) 2. RESPONDENT(S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT, BANGALORE ITA NO.1153 /BANG/2013 PAGE 13 OF 13 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. . 14. DICTATION NOTE ENCLOSED