Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 97918 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 30 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-11-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
I2
Next Hearing Date
07-09-2015
Assessment Year
2009-2010
Appeal Filed On
24-03-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I NEW DELHI BEFORE SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER AND SHRI O.P.KANT, ACCOUNTANT MEMBER ITA NO. 1728/DEL/2014 ASSTT.YEAR: 2009-10 ITA NO. 1306/DEL/2015 ASSTT.YEAR: 2010-11 SAPIENT CONSULTING LIMITED, VS DCIT, CIRCLE 7(1 ), (ERSTWHILE SAPIENT CORPORATION PVT. LTD.), NEW DELHI. TOWER B, FIRST FLOOR, BUILDING 8, UNITED INFOSPACE, SECTOR 2,DUNDAHERA, GURGAON, HARYANA-122016 ITA NO. 981/DEL/2014 ASSTT.YEAR: 2009-10 DCIT, CIRCLE 7(1), VS SAPIENT CONSULTIN G LTD., NEW DELHI. GURGAON, HARYANA (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI AJAY VOHRA, SR. ADV . NEERAJ JAIN, ADV. SAHIL MEHTA, MRS. NITYA GUPTA, CA RESPONDENT BY: MS Y. KAKKR, SR. DR DATE OF HEARING: 07.09.2015 DATE OF PRONOUNCEMENT: 23.11.2015 O R D E R PER C.M. GARG, JUDICIAL MEMBER THESE APPEALS BY THE ASSESSEE AND THE REVENUE HAVE BEEN PREFERRED AGAINST THE ASSESSMENT ORDERS PASSED U/S 143(3) R/W SECTION 144C OF THE ACT IN I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 2 PURSUANCE TO THE DIRECTIONS OF THE DISPUTE RESOLUTI ON PANEL-III, NEW DELHI (THE DRP) U/S 144C(5) OF THE INCOME TAX ACT, 1961 (FOR S HORT THE ACT) DATED 19.12.2013 AND 11.10.2014 FOR ASSESSMENT YEAR 2009- 10 AND 2010-11 RESPECTIVELY. ADDITIONAL GROUNDS OF THE ASSESSEE IN BOTH THE ASSE SSMENT YEARS 2. THE ASSESSEE HAS PROPOSED FOLLOWING ADDITIONAL G ROUNDS IN BOTH THE ASSESSMENT YEARS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, ASSESSMENT ORDER FRAMED UNDER SECTION 143(3) READ W ITH SECTION 144C OF THE INCOME TAX ACT, 1961 (THE ACT ) IS BEYOND JURISDICTION, BAD IN LAW AND VOID AB INITIO. 1.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ASSESSING OFFICER HAS ERRED IN FRAMING THE ASSESSME NT ON A NON-EXISTENT ENTITY WHICH WAS MERGED WITH SAPIENT CONSULTING PVT. LTD. W.E.F. APRIL 1, 2011 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RELEVANT MATERIAL PLACED ON RECORD BEFORE US. THE LD. SENIO R COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDER DATED 20.1.2014 U/S 143(3) R/W SECTION 144C OF THE ACT WAS PASSED IN THE NAME OF SAPIENT C ORPORATION PVT. LTD. (THE AMALGAMATING COMPANY) WHICH WAS NON-EXISTENT ENTITY ON THE DATE OF PASSING IMPUGNED SAID FINAL ASSESSMENT ORDER SINCE IT WAS M ERGED INTO SAPIENT CONSULTING PVT. LTD. (THE AMALGAMATED COMPANY) VIDE HON'BLE DELHI HIGH COURT ORDER DATED 12.10.2011 AND 6.1.2012 AND ACCOR DINGLY, THE SAID ORDER, I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 3 BEING VOID AB INITIO, IS LIABLE TO BE QUASHED. TO SUPPORT THIS CONTENTION, THE LD. SENIOR COUNSEL HAS PLACED RELIANCE ON VARIOUS ORDER S/JUDGMENTS OF HON'BLE DELHI HIGH COURT AND TRIBUNALS INCLUDING JUDGEMENT OF HON'BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT VS CIT (2012) 247 CTR (DEL) 500 AND ORDER OF ITAT DELHI D BENCH IN I.T.A. NO. 64 52/DEL/2013 FOR ASSESSMENT YEAR 2006-07 (WHICH WAS DELIVERED BY ONE OF US VIZ. C.M. GARG, JM) WHEREIN THE ORDER OF HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT (SUPRA) WAS FOLLOWED WHILE GRANTING RE LIEF TO THE ASSESSEE. ELABORATING AFORESAID FACTS OF THE CASE, THE LD. SE NIOR COUNSEL OF THE ASSESSEE PLACED REQUEST OF THE ASSESSEE FOR ADMISSION OF ADD ITIONAL GROUNDS AS REPRODUCED HEREINABOVE IN BOTH ASSESSMENT YEARS I.E . ASSESSMENT YEAR 2009-10 AND 2010-11 AND SUBMITTED THAT IN VIEW OF AFORESAID POSITION OF LAW LAID DOWN BY VARIOUS COURTS/TRIBUNALS THE APPELLANT HAS RAISE D SAID ADDITIONAL GROUNDS OF APPEAL WHICH RAISE A LEGAL ISSUE, NOT INVOLVING ANY FRESH INVESTIGATION INTO THE FACTS AND BASED ON THE FACTS WHICH ARE ALREADY PLAC ED ON RECORD. THE LD. SENIOR COUNSEL PLACING RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF NTPC LTD. VS CIT 229 ITR 383 (S.C.) AND PRESSING INTO SERVICE RULE 11 OF ITAT RULES, 1963 THE ADDITIONAL GROUND MAY KI NDLY BE ADMITTED FOR CONSIDERATION AND ADJUDICATION ON MERITS. 4. LD. LD. DR, REPLYING TO THE ABOVE, CONTENDED THA T WHEN THE ASSESSEE PARTICIPATED ASSESSMENT PROCEEDINGS DESPITE MERGER , THEN NO LEGAL OBJECTION OR I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 4 CONTENTION CAN BE RAISED IN THIS REGARD IN THE SUBS EQUENT APPELLATE PROCEEDINGS. LD. DR STRONGLY OBJECTED TO THE ADMISSION OF ADDITI ONAL GROUNDS. 5. LD. SENIOR COUNSEL ALSO PLACED REJOINDER AND CON TENDED THAT ON RECEIPT OF THE DRP/ASSESSING OFFICER FINAL ORDER, THE ASSESSEE CAME TO KNOW ABOUT ILLEGALITY DONE BY THE AUTHORITIES BELOW WHEREIN TH E ASSESSMENT ORDER WAS PASSED AGAINST A NON-EXISTING ENTITY I.E. AMALGAMAT ING COMPANY. 6. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT RAISE THIS LEGAL CONTENTION DURING PROCEEDINGS BEFORE THE AUTHORITIES BELOW AND PARTICIPATED IN TH E PROCEEDINGS BUT NOW THIS LEGAL ISSUE HAS BEEN RAISED BEFORE US BY WAY OF ADD ITIONAL GROUND WHICH REQUIRES NO FURTHER INVESTIGATION OF FACT AND WHICH PERTAINS TO A LEGAL ISSUE AND FACTS PERTAINING TO THIS LEGAL AND FACTUAL ISSUE AR E ALREADY ON RECORD WHICH GOES TO THE ROOT OF THE MATTER. MERELY BECAUSE THE ASSE SSEE DID NOT RAISE THIS LEGAL OBJECTION BEFORE AUTHORITIES BELOW DOES NOT TAKE AW AY THE LEGAL RIGHT OF THE ASSESSEE TO RAISE THE SAME BEFORE HIGHER APPELLATE FORUM. HENCE, IN VIEW OF DICTA LAID DOWN BY HON'BLE APEX COURT IN THE CASE O F NTPC VS CIT (SUPRA), THE ADDITIONAL GROUND BEING MIXED ISSUE OF LAW AND FACT S IS ADMITTED FOR CONSIDERATION AND ADJUDICATION ON MERITS. I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 5 ADJUDICATION OF ADDITIONAL GROUND NO. 1 & 1.1 7. APROPOS ADDITIONAL GROUND OF THE ASSESSEE, WE HA VE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE RELEVANT MATE RIAL PLACED ON RECORD. LD. SENIOR COUNSEL OF THE APPELLANT/ASSESSEE SUBMITTED THAT THE APPELLANT SAPIENT CORPORATION PVT. LTD. (HEREINAFTER REFERRED TO AS AMALGAMATING COMPANY) WAS INCORPORATED ON 9.3.2000 AND WAS CONSISTENTLY BEING ASSESSED IN CIRCLE 7(1), C.R. BUILDING, NEW DELHI. ON 13.11.2013, A NEW COMP ANY IN THE NAME OF SAPIENT CONSULTING PVT. LTD. (HEREINAFTER REFERRED TO AS AMALGAMATED COMPANY) WAS INCORPORATED AND THE AMALGAMATING COM PANY MERGED WITH NEW AMALGAMATED COMPANY UNDER SCHEME OF AMALGAMATION U/ S 391 AND 394 OF THE COMPANIES ACT 1956 IN PURSUANCE TO ORDER OF HON'BLE DELHI HIGH COURT DATED 12.10.2011 AND 6.1.2012 W.E.F. THE APPOINTED DATE I .E. 1.4.2011. LD. SENIOR COUNSEL FURTHER POINTED OUT THAT IN PURSUANCE TO AF ORESAID ORDER, THE APPELLANT COMPANY STOOD DISSOLVED, WITHOUT THE PROCESS OF WIN DING UP AND COPY OF ORDER OF HON'BLE HIGH COURT WAS ALSO FILED WITH THE REGIS TRAR OF COMPANIES (ROC) ON 18.11.2011. THE LEARNED COUNSEL OF THE ASSESSEE CO NTENDED THAT A LETTER WAS FILED BEFORE THE ASSESSING OFFICER ON 27.1.2012 INT IMATING HIM MERGER OF ASSESSEE WITH AMALGAMATING COMPANY. LEARNED COUNSE L OF THE ASSESSEE FAIRLY SUBMITTED THAT THE RETURN WAS FILED ON 26.9.2009 BY THE AMALGAMATING COMPANY AND THE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) OF THE ACT ON 18.8.2010 AGAINST THE AMALGAMATING COMPANY BUT AFTER AMALGAMA TION W.E.F. 1.4.2011, THE I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 6 ASSESSING OFFICER ON 12.10.2012 ISSUED NOTICES AGA INST THE ASSESSEE U/S 143(3) AND 142(1) AGAINST THE AMALGAMATING COMPANY AND SUB SEQUENTLY ON 5.12.2012 & 13.2.2013, ADDITIONAL QUESTIONNAIRES WERE ALSO IS SUED TO THE AMALGAMATING COMPANY. THE LD. SENIOR COUNSEL VEHEMENTLY CONTEND ED THAT THE ASSESSING OFFICER PASSED DRAFT ASSESSMENT ORDER U/S 144C OF T HE ACT ON 22.3.2013 AND THE FINAL ASSESSMENT ORDER U/S 143(3) R/W SECTION 144C OF THE ACT WAS PASSED ON 20.1.2014 IN PURSUANCE TO THE DIRECTIONS OF THE DRP DATED 19.12.2013 IN THE NAME OF AMALGAMATING COMPANY WHICH WAS NON-EXISTENT ENTITY AT THE TIME OF ISSUING NOTICES AND PASSING IMPUGNED ORDER OF THE D RP/ASSESSING OFFICER. 8. THE LD. SENIOR COUNSEL POINTED OUT THAT THE IMPU GNED FINAL ASSESSMENT ORDER U/S 143(3) R/W SECTION 144C OF THE ACT WAS PA SSED IN THE NAME OF AMALGAMATING COMPANY WHICH WAS NON-EXISTENT ENTITY SINCE IT WAS MERGED WITH AMALGAMATED COMPANY IN PURSUANCE TO ORDER OF HON'BL E DELHI HIGH COURT DATED 12.10.2011 AND 6.1.2012 AND THUS SAID ORDER BEING VOID AB INITIO IS LIABLE TO BE QUASHED IN VIEW OF PROPOSITION LAID DOWN BY HON'BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS SPICE INFOTAINMENT PVT. LTD. (SUPRA). 9. REPLYING TO THE AFORE NOTED SUBMISSIONS AND CONT ENTIONS OF THE ASSESSEE, THE LD. LD. DR CONTENDED THAT THE ORDERS/JUDGEMENTS AS RELIED BY THE ASSESSEE HAVE BEEN PASSED WITHOUT CONSIDERING THE SCHEME OF AMALGAMATION, HENCE, RATIO OF THESE ORDERS/JUDGEMENTS ARE NOT APPLICABLE IN TH E PRESENT CASE IN HAND. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO PLACED REL IANCE ON THE JUDGMENT OF I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 7 HON'BLE HIGH COURT OF DELHI IN THE CASE OF YAPI KRE DI BANK (DEUTSCHLAND) VS ASHOK K. CHAUHAN DATED 17.1.2013 IN FAO (OS) 511 /2007, C.M. APPL 14878/2008 & 3645/2012 AND SUBMITTED THAT THE HON'BLE JURISDICTIONAL HIGH COURT, AFTER REFERRING TO THE DICTA LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF BHAGWANDASS CHOPRA VS UNTIED BANK OF INDIA 1988 AIR 215 (S.C.), HAS HELD THAT THESE PROCEEDINGS WILL CONTINUE TO OP ERATE AGAINST AND ALSO BINDING ON THE TRANSFEREE COMPANY OR CORPORATION IN THE SAM E WAY IN WHICH THEY OPERATE AGAINST A PERSON ON WHOM ANY INTEREST HAS DEVOLVED IN ANY OF THE WAYS MENTIONED IN RULE 10 OF ORDER 22 OF CIVIL PROCEDURE CODE 1908. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO PLACED RELIANCE ON FOLLOWING ORDERS/JUDGEMENTS:- I) GUDUTHUR BROS VS ITO 40 ITR 298 (S.C.) II) CIT VS JAGAT NOVEL EXHIBITORS (P) LTD. 356 IT R 559 (DEL) III) VENAD PROPERTIES (P) LTD. VS CIT 340- ITR 46 3 IV) CENTURY ENKA LTD. VS DCIT 303 ITR ( AT) 01 (MUMBAI TRIBUNAL) V) CHATTURAM & OTHERS VS CIT 15 ITR 3 02 (FEDERAL COURT) 10. ON THE BASIS OF ABOVE NOTED ORDERS/JUDGEMENTS, LD. LD. DR FURTHER ELABORATED HIS LEGAL STAND AND SUBMITTED THAT IN TH E CASE OF SPICE INFOTAINMENT VS CIT (SUPRA), THE SCHEME OF AMALGAMATION AS WELL AS ORDER OF HON'BLE HIGH COURT HAVE NOT BEEN CONSIDERED. LEARNED DEPARTMENT AL REPRESENTATIVE SUBMITTED THAT IF FOR THE SAKE OF ARGUMENT, IT IS F OUND THAT THE ASSESSMENT HAS BEEN FRAMED AGAINST NON-EXISTING ENTITY, THEN THE S AME IS RECTIFIABLE U/S 292B OF I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 8 THE ACT AND NO PREJUDICE HAS BEEN CAUSED TO THE ASS ESSEE WHO PARTICIPATED IN THE ENTIRE ASSESSMENT PROCEEDINGS AND EXPLAINED HIS STA ND BEFORE THE ASSESSING OFFICER. LD. DR ALSO SUBMITTED THAT THE CASE LAWS RELIED BY THE LD. SENIOR COUNSEL OF THE ASSESSEE IN THE CASE OF CIT VS MICRO STEELS (P) LTD. 232 TAXMANN 102 AND ORDER OF ITAT DELHI IN THE CASE OF ACIT VS DIMENSION APPARELS IN I.T.A. NO.571 TO 576/D/12 DATED 21.6.13 ARE NOT APPLICABLE IN THE LIGHT OF DICTA LAID DOWN BY HON'BLE HIGH COURT IN T HE CASE OF YAPI KREDI BANK (SUPRA). LEARNED DEPARTMENTAL REPRESENTATIVE PRESS ING INTO SERVICE PROPOSITION LAID DOWN BY ITAT MUMBAI IN THE CASE OF CENTURY ENK A LTD. VS DCIT (SUPRA), SUBMITTED THAT THE ORDER IN THE NAME OF NON-EXISTIN G ENTITY WAS PASSED ON ACCOUNT OF IGNORANCE OF THE FACT OF AMALGAMATION AN D FOR THIS REASON, THE ASSESSMENT COULD NOT BE HELD TO BE INVALID AND THE RIGHT COURSE WAS TO SET ASIDE THE ASSESSMENT AND RESTORE THE MATTER TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION TO RE-FRAME THE ASSESSMENT IN THE CORRECT NAME OF THE ASSESSEE. 11. LEARNED COUNSEL OF THE ASSESSEE PLACING REJOIND ER TO THE ABOVE CONTENTION OF THE REVENUE HAS DRAWN OUR ATTENTION TOWARDS SECT ION 2(31) R/W SECTION 4 OF THE ACT AND SUBMITTED THAT AS PER SECTION 4 OF THE ACT, THE CHARGE OF INCOME TAX FOR ANY ASSESSMENT YEAR CAN BE LEVIED ON A PERSON A ND AS PER DEFINITION GIVEN IN SECTION 2(31) (III) OF THE ACT, A PERSON INCLUDES A COMPANY ALSO. LEARNED COUNSEL OF THE ASSESSEE HAS FURTHER DRAWN OUR ATTEN TION TOWARDS SECTION 2(16) OF THE ACT AND SUBMITTED THAT THE MEANING OF AMALGAMAT ION IN RELATION TO I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 9 COMPANIES MEANS THE MERGER OF ONE OR MORE COMPANIES WITH ANOTHER COMPANY OR MERGER OF TWO OR MORE COMPANIES TO FORM ONE COMP ANY AND THE COMPANY OR COMPANIES WHICH SO MERGE BEING REFERRED TO AS THE A MALGAMATING COMPANY OR COMPANIES AND THE COMPANY WITH WHICH THEY MERGE OR WHICH IS FORMED AS A RESULT OF MERGER AS THE AMALGAMATED COMPANY FORMED AS A RESULT OF MERGER AS THE AMALGAMATED COMPANY AND FROM THE DATE OF MERGER THE LEGAL EXISTENCE OF AMALGAMATING COMPANY AS A LEGAL ENTITY OR PERSON CE ASED TO EXIST AND ORDER OF ASSESSMENT PASSED AGAINST SUCH NON-EXISTING ENTITY OR LEGAL PERSON CANNOT BE HELD AS VALID AND THE SAME SHOULD BE ANNULLED. 12. LD. SENIOR COUNSEL VEHEMENTLY CONTENDED THAT TH E ASSESSEE IS NOT SEEKING WAIVER OF TAX LIABILITY AND THE ASSESSEE FAIRLY ACC EPTS THAT AS PER SECTION 2(1B) OF THE ACT, THE TAX LIABILITY IS FASTENED ON THE AMALG AMATED COMPANY AND HENCE THE ASSESSEE HAS RAISED LEGAL OBJECTION THAT THE ASSESS MENT HAS BEEN FRAMED IN THE NAME OF NON-EXISTENT ENTITY ON 21.2.14 DESPITE THE FACT THAT THE ASSESSEE BY WAY OF LETTER DATED 27.1.12 INTIMATED THE ASSESSING OFF ICER ABOUT THE MERGER OF ASSESSEE COMPANY WITH SAPIENT CONSULTING PVT. LTD., THE AMALGAMATED COMPANY IN PURSUANCE TO THE ORDER OF HON'BLE DELHI HIGH COU RT DATED 12.10.11 CENSURING MERGER OF THE ASSESSEE AS PER SCHEME OF AMALGAMATIO N U/S 391 TO 394 OF THE COMPANIES ACT, 1956 DATED 6.1.12 W.E.F. THE APPOINT ED DATE VIZ. 1.4.11 WHICH IS ALSO APPARENT FROM THE SCHEME OF AMALGAMATION AVAIL ABLE AT PAGES 79-80 OF THE ASSESSEES PAPER BOOK. LD. SENIOR COUNSEL FURTHER P OINTED OUT THAT THE ASSESSEE I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 10 IS NOT CHALLENGING THE VALIDITY OF NOTICE U/S 143(2 ) OF THE ACT AND HENCE, THE PROPOSITIONS RELIED BY LD. LD. DR AND PROVISIONS OF SECTION 292B OR 292BB OF THE ACT ARE NOT APPLICABLE TO THE CASE OF THE ASSES SEE. 13. LEARNED COUNSEL OF THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION TOWARDS ORDER OF ITAT DELHI IN THE CASE OF IMPSAT VS ITO REPORTED AS 91 ITD 354 (DEL) AND SUBMITTED THAT ONCE THE AMALGAMATING COMPANY CE ASED TO EXIST ON THE APPOINTED DATE, THERE WAS NO QUESTION OF ASSESSING IT FOR INCOME TAX AS THERE IS NO PROVISION IN THE ACT TO ASSESS ADDITION WHICH IS DISSOLVED. LD. SENIOR COUNSEL LASTLY PLACED HIS RELIANCE ON THE DECISION OF SPICE INFOTAINMENT VS CIT AND SUBMITTED THAT THEIR LORDSHIPS HAVE EXPLICITLY HELD THAT THE IRRESISTIBLE CONCLUSION WOULD BE THAT PROVISIONS OF SECTION 292B OF THE ACT ARE NOT APPLICABLE IN SUCH A CASE WHERE THE ASSESSMENT HAS BEEN FRAMED IN THE NAME OF AMALGAMATING COMPANY AND THE FRAMING OF ASSESSMENT AGAINST A NON-EXISTING PERSON OR ENTITY GOES TO THE ROOT OF THE MATTER WHI CH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT AS THERE C OULD NOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. 14. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, AT THE VERY OUTSET, WE FIND IT APPROPRIATE TO NOTE SOME ADMITTED AND UNDISPUTED FACTS THAT THE ASSESSEE FILED ITS RETURN OF INCOME IN THE NAME OF AMALGAMATING CO MPANY ON 26.9.09 AND THE ASSESSING OFFICER ISSUED NOTICE ON 18.8.2010 U/S 14 3(2). SUBSEQUENTLY ON 12.10.11, THE HON'BLE DELHI HIGH COURT PASSED AN OR DER SANCTIONING MERGER OF I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 11 ASSESSEE WITH SAPIENT CONSULTING LTD. AN AMALGAMATE D COMPANY AND ON 18.11.11, THE ASSESSEE FILED FORM 21 ALONG WITH COP Y OF THE HON'BLE DELHI HIGH COURT ORDER (SUPRA) SANCTIONING THE SCHEME OF AMALG AMATION WITH ROC AND ON 6.1.12 AS PER SCHEME OF AMALGAMATION AND UNDER COMP ANIES ACT, THE ASSESSEE AMALGAMATING COMPANY MERGED WITH SAPIENT CONSULTING LTD. IN PURSUANCE TO THE ORDER OF HON'BLE DELHI HIGH COURT W.E.F. 1.4.11 I.E. APPOINTED DATE. IT IS ALSO IMPORTANT TO NOTE THAT ON 27.1.2012, THE ASSES SEE FILED A LETTER BEFORE THE ASSESSING OFFICER INTIMATING THE MERGER OF THE COMP ANY WITH SAPIENT CORPORATION PVT. LTD., HOWEVER, THE ASSESSING OFFIC ER ON 19.10.12 ISSUED NOTICE U/S 143(2) ALONG WITH NOTICE DATED 142(1) OF THE AC T ON THE ASSESSEE AMALGAMATING COMPANY. AFTER ISSUING ADDITIONAL QUE STIONNAIRES DATED 5.12.12 AND 13.2.13 ON AMALGAMATING COMPANY, THE ASSESSING OFFICER ON 22.3.13 PASSED DRAFT ASSESSMENT ORDER U/S 144C OF THE ACT O N AMALGAMATING COMPANY. FINALLY, THE ASSESSING OFFICER PASSED FINAL ASSESSM ENT ORDER U/S 143(3) R/W SECTION 144C OF THE ACT ON AMALGAMATING COMPANY ON 20.1.2014 IN PURSUANCE TO THE DIRECTIONS OF THE DRP DATED 19.2.13 U/S 144C (5) OF THE ACT. 15. IN THE LIGHT OF ABOVE NOTED DATES OF EVENTS HAV ING TAKEN PLACE IN THE PRESENT CASE, WE PROCEED TO DECIDE THE LEGAL OBJECT ION OF THE ASSESSEE AGAINST VALIDITY OF IMPUGNED ASSESSMENT ORDERS. AT THE VER Y OUTSET, WE ARE REQUIRED TO CONSIDER THE RATIO OF THE DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF SPICE ENTERTAINMENT LTD VS CST DATED 3.8.2011 IN I. T.A. NO. 475-476 OF 2011 I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 12 WHEREIN THEIR LORDSHIPS SPEAKING FOR HON'BLE JURISD ICTIONAL HIGH COURT HELD AS FOLLOWS:- '16. WHEN WE APPLY THE RATIO OF AFORESAID CASES TO THE FACTS OF THIS CASE, THE IRRESISTIBLE CONCLUSION WOULD BE PRO VISIONS OF S. 202B OF THE ACT ARE NOT APPLICABLE IN SUCH A CASE. THE FRAMING OF ASSESSMENT AGAINST A NON- EXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGU LARITY BUT A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESS MENT AGAINST A 'DEAD PERSON'. 17. THE ORDER OF THE TRIBUNAL IS, THEREFORE, CLEA RLY UNSUSTAINABLE. WE, THUS, DECIDE THE QUESTIONS OF LAW IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND ALLOW THESE APPEALS. 18. WE MAY, HOWEVER, POINT OUT THAT THE RETURNS WERE FILED BY M/S SPICE ON THE DAY WHEN IT WAS IN EXISTENCE IT WOULD BE PERMISSIBLE TO CARRY OUT THE ASSESSMENT ON THE BASIS OF THOSE RETU RNS AFTER TAKING THE PROCEEDINGS AFRESH FROM THE STAGE OF ISSUANCE O F NOTICE UNDER S. 143(2) OF THE ACT. IN SUBSTITUTE, THE NAME OF THE A PPELLANT IN PLACE OF M/S SPICE AND THEN ISSUE NOTICE TO THE APPELLANT . HOWEVER, SUCH A COURSE OF ACTION CAN BE TAKEN BY THE ASSESSING OF FICER ONLY IF IT IS STILL PERMISSIBLE AS PER LAW AND HAS NOT BECOME TIM E-BARRED. AT THE VERY OUTSET, WE RESPECTFULLY NOTE THE DICTA LAID DOWN BY THE HON'BLE HIGH COURT THAT THE PROVISIONS OF SECTION 292B OF THE AC T ARE NOT APPLICABLE IN SUCH A CASE WHERE ASSESSMENT HAS BEEN FRAMED IN THE NAME O F NON-EXISTENT AMALGAMATED COMPANY. THEIR LORDSHIPS FURTHER HELD T HAT THE FRAMING OF ASSESSMENT AGAINST NON-EXISTENT ENTITY/PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISD ICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. IN THE CAS E OF SPICE INFOTAINMENT LTD. (SUPRA), THEIR LORDSHIPS ALSO POINTED OUT THAT THE RETURNS WERE FILED BY M/S SPICE ON THE DAY WHEN IT WAS IN EXISTENCE. IT WOULD BE PE RMISSIBLE TO CARRY OUT THE I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 13 ASSESSMENT ON THE BASIS OF THOSE RETURNS AFTER TAKI NG THE PROCEEDINGS AFRESH FROM THE STAGE OF ISSUANCE OF NOTICE U/S 143(2) OF THE A CT. IT WAS ALSO HELD THAT IN SUBSTITUTE THE NAME OF THE APPELLANT/AMALGAMATED CO MPANY IN THE PLACE OF AMALGAMATING COMPANY MAY BE GIVEN AND THEN NOTICE M AY BE ISSUED AS PER PROVISIONS OF THE ACT. 16. IN THE LIGHT OF THE RATIO OF THE JUDGMENT OF HO N'BLE HIGH COURT IN THE CASE OF SPICE (SUPRA), WHEN WE ANALYZE THE FACTS AND CIR CUMSTANCES OF THE PRESENT CASE, WE CLEARLY OBSERVE THAT UNDISPUTEDLY AND ADMI TTEDLY, THE RETURN WAS FILED BY AMALGAMATING COMPANY ON 26.9.2009. THE ASSESSIN G OFFICER ISSUED NOTICES U/S 143(2) OF THE ACT IN THE NAME OF AMALGAMATING C OMPANY ON 18.8.2010. SUBSEQUENTLY, LETTER DATED 27.1.2012 WAS FILED BEFO RE THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, INFORM ING THE ORDER OF THE HON'BLE HIGH COURT DATED 12.10.2011. HOWEVER, THE ASSESSIN G OFFICER ISSUED NOTICES U/S 143(2) AND 142(1) OF THE ACT ALONG WITH QUESTIO NNAIRE ON THE AMALGAMATING COMPANY. AFTER ISSUING SAID NOTICES, THE ASSESSING OFFICER ISSUED ADDITIONAL QUESTIONNAIRES ON 5.12.2012 AND 13.2.2013 ON AMALGA MATING COMPANY. THE ASSESSING OFFICER PASSED DRAFT ASSESSMENT ORDER U/S 144C OF THE ACT ON AMALGAMATING COMPANY. FINALLY, THE ASSESSING OFFIC ER PASSED FINAL ASSESSMENT ORDER U/S 143(3) R/W SECTION 144C OF THE ACT ON AMA LGAMATING COMPANY IN PURSUANCE TO THE DIRECTIONS OF THE LD. DRP DATED 19 .2.2013 U/S 144C(5) OF THE ACT. I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 14 17. IN THE LIGHT OF ABOVE NOTED FACTS, WE CLEARLY O BSERVE THAT THE FACTS OF THE PRESENT CASE ARE QUITE SIMILAR TO THE FACTS OF THE CASE OF SPICE (SUPRA), WHEREIN THEIR LORDSHIPS HAVE HELD THAT FRAMING OF ASSESSMEN T AGAINST NON-EXISTENT ENTITY/PERSON GOES TO THE ROOT OF THE VALIDITY OF T HE ASSESSMENT WHICH IS NOT A PROCEDURAL IRREGULARITY CURABLE U/S 292B OF THE ACT OR UNDER ANY OTHER PROVISION OF THE ACT BUT IT IS A JURISDICTIONAL DEFECT BECAUS E THERE CANNOT BE FRAMING OF ANY ASSESSMENT ORDER AGAINST A DEAD PERSON OR ENTITY WH ICH IS NON-EXISTENT ON THE DATE OF FRAMING/PASSING ASSESSMENT ORDER. 18. RESPECTFULLY FOLLOWING THE RATIO OF ORDER OF HO N'BLE HIGH COURT IN THE CASE OF SPICE ENTERTAINMENT (SUPRA), WE ARE INCLINE D TO HOLD THAT THE ASSESSMENT ORDER DATED 20.1.14 IN THE NAME OF NON-EXISTENT AMA LGAMATING COMPANY HAVING JURISDICTIONAL DEFECT IS NOT SUSTAINABLE AND THEREF ORE, WE QUASH THE SAME. IT IS ORDERED ACCORDINGLY. THE ADDITIONAL GROUND NO. 1 A ND 1.1 OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 ARE ALLOWED. 19. SINCE WE HAVE QUASHED ASSESSMENT ORDER BEING WI THOUT VALID JURISDICTION, THE OTHER GROUNDS OF THE ASSESSEE BECOME ACADEMIC A ND INFRUCTUOUS AND WE ALSO DISMISS THE SAME BEING INFRUCTUOUS WITHOUT ANY DELI BERATIONS ON MERIT. I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 15 REVENUES APPEAL IN I.T.A. NO. 981/DEL/2014 FOR A. Y. 2009-10 20. SINCE WE HAVE QUASHED ASSESSMENT ORDER DATED 20 .1.2014 BY THE EARLIER PART OF THIS ORDER, THE REVENUES APPEAL ARISING FR OM THE SAME ORDER DOES NOT SURVIVE FOR ADJUDICATION AND WE ALSO DISMISS THE SA ME BEING INFRUCTUOUS. ASSESSEES APPEAL I.T.A. NO. 1306/DEL/2015 FOR ASS ESSMENT YEAR 2010-11 21. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND IN THIS APPEAL CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER PASSING A SSESSMENT ORDER U/S 143(3) R/W SECTION 144C OF THE ACT AGAINST NON-EXISTENT ENTITY . EXCEPT THE DATE OF FILING RETURN AND PASSING ASSESSMENT ORDER ETC., THE FACTS AND CIRCUMSTANCES OF THE APPEAL OF THE ASSESSEE ARE QUITE SIMILAR AND THUS W E ORDER THAT OUR CONCLUSION FOR ASSESSMENT YEAR 2009-10 IN THE EARLIER PART OF THIS ORDER WILL APPLY MUTATIS MUTANDIS TO ASSESSMENT YEAR 2010-11 AND HENCE, ASSESSMENT OR DER PASSED ON 29.12.2014 IS ALSO QUASHED BEING PASSED AGAINST NON -EXISTENT AMALGAMATING COMPANY. I.T.A. 1728, 1306/D/14 & 1306/D/15 ASSESSMENT YEAR 2009-10, 2010-11 16 22. IN THE RESULT, APPEALS OF THE ASSESSEE FOR BOTH THE YEARS ARE ALLOWED AND APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2009-10 I S DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.2015. SD/- SD/- ( O.P. KANT) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23RD NOVEMBER, 2015 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR
