ATOS INDIA P.LTD, MUMBAI V. DCIT 14(1)(1), MUMBAI

ITA 1806/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9203 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHTER
• Keywords: Depreciation; Transfer pricing; International transaction; Wholly owned subsidiary; Validity of assessment; Scheme of amalgamation; Revised return; Set aside
• Section: 143(3); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'K' BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER IT(TP) NO. 1806/MUM/2017 (ASSESSMENT YEAR: 2012-13) ATOS INDIA PVT. LTD. (SUCCESSOR OF ATOS IT SOLUTIONS AND SERVICES P. LTD) GODREJ & BOYCE COMPLEX, PLOT NO. 5 PIROJSHNAGAR, LBS MARG WIKHROLI (W), MUMBAI 400079 VS. D C I T - 14(1)(1) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AAOCS0752L APPELLANT RESPONDENT APPELLANT BY: SHRI DHANESH BAFNA RESPONDENT BY: SHRI AKHTER DATE OF HEARING: 03.08.2020 DATE OF PRONOUNCEMENT: 11.08.2020 O R D E R PER SHAMIM YAHYA, AM THIS APPEAL FILED BY REVENUE IS DIRECTED AGAINST TH E FINAL ORDER PASSED BY THE ASSESSING OFFICER DATED 31.01.2017 UNDER SEC TION 143(3) R.W.S. 144C(13) OF INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT') AND IT RELATES TO A.Y. 2012-13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: - 1. GROUND NO. 1 - TRANSFER PRICING ('TP') ADJUSTME NT IN RELATION TO PROVISION OF SOFTWARE DEVELOPMENT SERVICES 1.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE HON'BLE DISPUTE RESOLUTION PANEL 1 ('HON'BLE DRP') ERRED IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME TAX, CI RCLE - I4(I)(I), MUMBAI ('LD, AO')/ ADDITIONAL COMMISSIONER OF INCOM E TAX, TRANSFER PRICING - 1(1), MUMBAI (LD. TPO') IN MAKIN G AN ADJUSTMENT OF RS. 6,01,99,278 IN RELATION TO THE INTERNATIONAL TRANSACTION OF PROVISION OF SOFTWARE DEVELOPMENT SERVICES. IN DOIN G SO, THE HON'BLE DRP ERRED IN : 1.1.1. UPHOLDING THE ACTION OF THE LD. AO/ LD, TP O IN REJECTING THE TP DOCUMENTATION MAINTAINED BY THE APPELLANT; IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 2 1.1.2. UPHOLDING THE ACTION OF THE LD. AO/ LD. TPO IN INCLUDING COMPANIES IN THE COMPARABILITY ANALYSIS WHICH ARE DIFFERENT FROM THE APPELLANT IN FUNCTIONS, ASSET BA SE AND RISK PROFILE; 1.1.3. UPHOLDING THE ACTION OF THE LD. AO/ LD. TPO IN NOT INCLUDING COMPANIES IN THE COMPARABILITY ANALYSIS W HICH ARE SIMILAR TO THE APPELLANT IN FUNCTIONS, ASSET BA SE AND RISK PROFILE ; 1.1.4. NOT DIRECTING THE LD. AO/ LD. TPO TO GRANT W ORKING CAPITAL ADJUSTMENT; AND 1.1.5. UPHOLDING THE ACTION OF THE LD. AO/ LD. TPO IN INCORRECTLY COMPUTING PROFIT LEVEL INDICATOR OF CERTAIN COMPARA BLE . THE APPELLANT THEREFORE PRAYS THAT THE LD. AO / LD. TPO BE DIRECTED TO TREAT THE ACTUAL VALUE OF INTERNATIONAL TRANSACTION OF PR OVISION OF SOFTWARE DEVELOPMENT SERVICES AS AT ARM'S LENGTH AND DELETE THE TP ADJUSTMENT OF RS. 6,01,99,278. 2. GROUND NO. 2 - DENIAL OF CLAIM OF DEPRECIATIO N ON GOODWILL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DISALLOWING THE CLAIM OF DEPRECIATION ON GOODWILL AMOUNTING TO RS. 2,00,50,209 ON THE ALLEGED GROUND THAT UNLESS THE GOODWILL IS FOUN D TO BE GENUINE AND DEPRECIATION IS GROUND TO BE ALLOWABLE IN THE PRECE DING YEAR / YEARS, THE CLAIM OF DEPRECIATION OF GOODWILL CANNOT BE ALL OWED IN THIS ASSESSMENT YEAR. THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE CLAIM OF DEPRECIATION ON GOODWILL. . 3. GROUND NO. 3 - DENIAL OF DEDUCTION OF PROVISI ONS PAID/WRITTEN BACK ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DISALLOWING THE DEDUCTION OF PROVISIONS PAID / WRITTEN BACK AMO UNTING TO RS. 8,51,09,147 ON THE ALLEGED GROUND THAT NO DOCUMENTA RY EVIDENCE IN SUPPORT OF THE CLAIM HAS BEEN FURNISHED. THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE DEDUCTIONS OF PROVISION PAID/WRITTEN BACK. 4. GROUND NO. 4 - DENIAL OF DEDUCTION OF EXCESS PROVISIONS FOR EARLIER YEAR WRITTEN BACK ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DISALLOWING THE DEDUCTION OF EXCESS PROVISIONS WRITTEN BACK AMO UNTING TO RS. 5,87,78,387 ON THE ALLEGED GROUND THAT NO DOCUMENTA RY EVIDENCE IN SUPPORT OF THE CLAIM HAS BEEN FURNISHED. IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 3 THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE DEDUCTION OF EXCESS PROVISIONS FOR EARLIER YEAR WRI TTEN BACK AMOUNTING TO RS. 5,87,78,387. 5. GROUND NO. 5 - DENIAL OF DEDUCTION OF PROJECT R ISK EXPENSES WRITTEN BACK ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DISALLOWING THE DEDUCTION OF PROVISION OF PROJECT RISK EXPENSES WRITTEN BACK AMOUNTING TO RS. 70,35,549 ON THE ALLEGED GROUND TH AT NO DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM HAS BEEN FURNISHED . THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE DEDUCTION OF PROVISION OF PROJECT RISK EXPENSES WRI TTEN BACK AMOUNTING TO RS. 70, 35,549. 6. GROUND NO. 6 - DENIAL OF DEDUCTION OF PRELIMINA RY EXPENSES ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DISALLOWING THE DEDUCTION OF PRELIMINARY EXPENSES UNDER SECTION 350 OF THE ACT AMOUNTING TO RS. 1,96,333 ON THE ALLEGED GROUND THA T THE IMPUGNED EXPENDITURE DO NOT FALL WITHIN THE AMBIT OF SECTION 350 OF THE ACT, THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE DEDUCTION OF PRELIMINARY EXPENDITURE U/S. 350 OF TH E ACT. 7. GROUND NO. 7 - DELAY IN PAYMENT OF EMPLOYEE'S ES IC CONTRIBUTION ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HON'BLE DRP ERRED IN CONFIRMING THE ACTION OF THE L D. AO IN DENYING CLAIM OF DEDUCTION ON ACCOUNT OF DELAY IN PAYMENT O F EMPLOYEE'S ESIC CONTRIBUTION UNDER SECTION 36(I)(VA) OF THE ACT AMO UNTING TO RS.I2,88,O54 ON THE ALLEGED GROUND THAT THE EMPLOYEE'S ESIC CONT RIBUTION HAS BEEN PAID AFTER THE DUE DATE PRESCRIBED U/S. S6(I)(VA) O F THE ACT. THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE DEDUCTION OF EMPLOYEE'S ESIC CONTRIBUTION. 8. GROUND NO. 8 - CREDIT OF SELF-ASSESSMENT TAX ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. AO HAS ERRED IN DENYING THE CREDIT OF SELF-ASSESSME NT TAX AMOUNTING TO RS.2,62,19,000. THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED TO ALLOW THE CREDIT OF SELF-ASSESSMENT TAX AND OBLIGE. 9. GROUND NO. 9 - INITIATION OF PENALTY PROCEEDI NGS ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. AO HAS ERRED IN PROPOSING TO INITIATE PENALTY UNDER SECTION 271(1) OF THE ACT FOR VARIOUS ADDITIONS/DISALLOWANCES. THE APPELLANT THEREFORE PRAYS THAT THE LD. AO BE DI RECTED NOT TO INITIATE PENALTY PROCEEDINGS AND OBLIGE. IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 4 3. THOUGH THE ASSESSEE HAD RAISED VARIOUS GROUNDS ON M ERITS OF VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE LEARNED AO PURS UANT TO DRP DIRECTIONS THE LEARNED COUNSEL FOR THE ASSESSEE EMP HISES THAT THE ASSESSEE HAD RAISED AN ADDITIONAL GROUND VIDE PETITION DATED 4.4.2019 STATING THAT THE ASSESSMENT HAS BEEN FRAMED ON A NON-EXISTING EN TITY AND ACCORDINGLY IS VOID ABINITIO. HE SUBMITS THAT IN IDENTICAL CIRC UMSTANCES THE ITAT HAS QUASHED THE ASSESSMENT ORDER DATED 24.12.2019 FOR A .Y. 2011-12. 4. WE MAY REFER THE ORDER OF THE ITAT WHICH ADJUDICATE S AS UNDER: - WE FIND THAT THE UNDISPUTED FACTS AVAILABLE ON REC ORD ARE AS UNDER:- A) ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD WAS ORIG INALLY INCORPORATED ON 27.3.2010 UNDER THE NAME SIEMENS I NFORMATION SYSTEMS (INDIA) PVT LTD WHICH WAS SUBSEQUENTLY CHA NGED TO SIEMENS IT SOLUTIONS AND SERVICES PVT LTD. THIS W AS INCORPORATED AS A WHOLLY OWNED SUBSIDIARY OF SIEMENS PTE. LTD, SING APORE. THE ASSESSEE STARTED ITS OPERATION FROM 1.10.2010. B) DURING THE YEAR UNDER CONSIDERATION, SIEMENS PTE. L TD, SINGAPORE TRANSFERRED ITS SHAREHOLDING IN SIEMENS IT SOLUTIO NS AND SERVICES PVT LTD TO SIEMENS IT SOLUTIONS & SERVICES GMBH, GERM ANY AND ACCORDINGLY, THE ASSESSEE BECAME WHOLLY OWNED SUBSI DIARY OF SIEMENS IT SOLUTIONS & SERVICES GMBH, GERMANY, WHO SE ULTIMATE HOLDING COMPANY WAS SIEMENS AG. BEFORE FILING THE R ETURN OF INCOME, THE ULTIMATE HOLDING COMPANY WAS CHANGED FROM SIEME NS AG TO ATOS SA, FRANCE. CONSEQUENTLY, THE NAME OF THE COMPANY W AS CHANGED TO ATOS IT SOLUTIONS AND SERVICES PVT LTD. C) THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASS T YEAR 2011-12 ON 30.11.2011 IN THE NAME OF ATOS IT SOLUTIONS AND SERVICES PVT LTD DECLARING TOTAL INCOME OF RS 14,53,98,874/- WHICH W AS SUBSEQUENTLY REVISED TO ` 4,64,70,033/-. SUBSEQUENTLY, ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD GOT MERGED INTO ATOS INDIA PRI VATE LTD IN VIEW OF SCHEME OF AMALGAMATION WHICH WAS DULY APPROVED BY T HE HONBLE BOMBAY HIGH COURT DATED 21.12.2012 ENCLOSED IN PAGE S 1335 TO 1350 OF THE PAPER BOOK FILED BEFORE US. D) THE ASSESSEES CASE WAS PICKED UP FOR SCRUTINY AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 29.8.2013 BY THE IT O-7(2)(4) IN THE NAME OF ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD. E) DURING THE COURSE OF HEARING, THE ASSESSEE VIDE LET TER DATED 31.1.2014 ENCLOSED IN PAGE 1332 OF THE PAPER BOOK, SUBMITTED THE ORDER OF THE HONBLE BOMBAY HIGH COURT APPROVING ME RGER OF ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD INTO ATOS INDIA PRIVATE LTD. IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 5 F) ACCORDINGLY, THE JURISDICTION WAS TRANSFERRED FROM DCIT-7(2) TO THE JURISDICTION OF ITS SUCCESSOR COMPANY I.E. DCIT 8 (1), VIDE TRANSFER MEMO DATED 31.1.2014 ENCLOSED IN PAGE 1334 OF THE P APER BOOK. G) THE ASSESSEE VIDE LETTER DATED 3.2.2014 FILED ITS C ONSENT WITH RESPECT TO SUCH TRANSFER OF JURISDICTION. FURTHER, THE ASSESSEE ALSO FILED THE ORDER OF THE HONBLE BOMBAY HIGH COURT APPROVIN G MERGER OF ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD INTO ATOS IND IA PRIVATE LTD WITH THE LEARNED DCIT-8(1) AS WELL. THE EVIDENCES IN THI S REGARD ARE ENCLOSED IN PAGES 1333 TO 1350 OF THE PAPER BOOK. H) THEREAFTER, DUE TO INTERNAL RESTRUCTURING IN DEPART MENT, JURISDICTION WAS TRANSFERRED FROM DCIT -8(1) TO ASSISTANT/DEPUTY COMMISSIONER OF INCOME-TAX - 14(1X1) ('ACIT/DCIT 14(1X1)') VIDE NOT ICE DATED JANUARY 05, 2015. THE EVIDENCE IN THIS REGARD IS ENCLOSED I N PAGE NO. 1354 OF THE PAPER BOOK. I) THE ASSESSEE VIDE LETTER DATED JANUARY 12, 2015, FI LED ALL THE SUBMISSIONS WHICH WERE FILED BEFORE THE PREVIOUS AS SESSING OFFICERS INCLUDING THE SUBMISSION DATED FEBRUARY 03, 2014 & JANUARY 31, 2014 WHEREIN THE ORDER OF THE HON'BLE BOMBAY HIGH C OURT APPROVING MERGER WAS SUBMITTED. J) THEREFORE, IT CAN BE SEEN FROM ABOVE THAT THE ASSES SEE HAS SUBMITTED THE COPY OF THE BOMBAY HIGH COURT APPROVI NG MERGER WITH ALL THE ASSESSING OFFICERS INCLUDING THE ASSESSING OFFICER WHO HAS PASSED THE ASSESSMENT ORDER I.E. ACIT/DCIT-14(1)(1) . K) HOWEVER, DESPITE OF MENTIONING THE FACT, THE DRAFT ASSESSMENT ORDER AS WELL AS THE FINAL ASSESSMENT ORDER WAS PAS SED IN THE NAME OF 'ATOS IT SOLUTIONS AND SERVICES PRIVATE LTD' WHI CH WAS NOT IN EXISTENCE AT THE TIME OF PASSING THE ORDERS. 5. IN THESE CIRCUMSTANCES, THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND CHALLENGING THE VALIDITY OF ASSESSMENT FRAME D IN THE HANDS OF NON-EXISTENT ENTITY. THIS ISSUE GOES TO THE ROOT OF THE MATTER AND DOES NOT INVOLVE VERIFICATION OF ANY FRESH FACTS IN AS M UCH AS THE ENTIRE FACTS ARE ALREADY AVAILABLE ON RECORD AND THE SAME ARE NOT DISPUTED. ACCORDINGLY, THE ADDITIONAL GROUND RAISED BY THE AS SESSEE IS HEREBY ADMITTED AND TAKEN UP FOR ADJUDICATION. 6. WE FIND THAT THE LEARNED DR VIDE LETTER DATED 25/10 /2019 SUBMITTED THE WRITTEN SUBMISSIONS OF THE LEARNED AO WITH REGARD TO THE ADDITIONAL GROUND BY SEEKING REPORT FROM THE LE ARNED AO. WE FIND THAT THE ASSESSEE HAD PLEADED THAT THE COPY OF FACT OF MERGER OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD. WITH ATOS INDIA PVT. LTD., PURSUANT TO THE SCHEME OF AMALGAMATION DULY APPROVED BY THE HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 21/12/2012 WAS INDEED S UBMITTED TO THE LEARNED AO DURING THE COURSE OF ASSESSMENT PROC EEDINGS VIDE LETTERS DATED 31/01/2014 AND 03/02/2014. THE BENCH DIRECTED THE LEARNED DR TO VERIFY THE AVAILABILITY OF THESE LETT ERS FROM THE ASSESSMENT FOLDER. ACCORDINGLY, THE REPORT DATED 15 /10/2019 WAS SUBMITTED BY THE LEARNED AO THROUGH THE LEARNED CIT (DR) WHEREIN THE IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 6 LEARNED AO HAD AGREED TO THE FACT THAT THE LETTERS DATED 31/01/2014 AND 03/02/2014 WERE INDEED AVAILABLE IN THE CASE RE CORDS OF THE ASSESSEE BUT THE ENCLOSURES ARE NOT AVAILABLE THERE ON. WE FIND THAT THE ENTIRE OBJECTIONS OF THE LEARNED AO VIDE LETTER DATED 15/10/2019 HAD ALREADY BEEN ADDRESSED BY US HEREINABOVE. THE V ERY FACT THAT THE REVENUE WAS INDEED AWARE OF THE FACT OF MERGER OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD WITH ATOS INDIA PVT . LTD. IS EVIDENT FROM THE EXCRUCIATING FACT THAT ON 31/01/2014 THE J URISDICTION OF THE ASSESSEE WAS TRANSFERRED FROM DCIT 7(2) TO DCIT 8(1 ) WHICH IS JURISDICTION OF ATOS INDIA PVT. LTD. BEING THE SUCC ESSOR COMPANY TO THE ASSESSEE. THE EVIDENCE IN THIS REGARD IS ENCLOSED I N PAGE 1334 OF THE PAPER BOOK BY WAY OF TRANSFER MEMO SIGNED BY DCIT 7 (2), MUMBAI. HENCE, IT CANNOT BE SAID THAT THE LEARNED AO WAS NO T INTIMATED ABOUT THE FACT OF MERGER WITH ATOS INDIA PVT. LTD., WE AL SO FIND THAT PURSUANT TO THIS FORWARDING MEMO / TRANSFER MEMO DA TED 31/01/2014 FOR TRANSFER OF JURISDICTION FROM DCIT 7 (2) MUMBAI TO DCIT 8(1) MUMBAI, THE ASSESSEE VIDE LETTER DATED 03 /02/2014 HAD FILED ITS CONSENT FOR TRANSFER OF JURISDICTION. EVE N BEFORE THE NEW ASSESSING OFFICER I.E. DCIT 8(1) MUMBAI, ASSESSEE H AD ONCE AGAIN FILED A COPY OF THE ORDER OF THE BOMBAY HIGH COURT APPROVING THE AMALGAMATION OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD. WITH ATOS INDIA PVT. LTD. THE EVIDENCES IN THIS REGARD AS STA TED SUPRA ARE ENCLOSED IN PAGES 1333 TO 1350 OF THE PAPER BOOK. L ATER, BY YET ANOTHER LETTER DATED 12/01/2015, THE ASSESSEE HAD I NFORMED THE SUBSEQUENT ASSESSING OFFICER I.E. ACIT-14(1)(1), MU MBAI (PURSUANT TO INTERNAL RESTRUCTURING IN THE DEPARTMENT WHEREIN TH E JURISDICTION OF THE CASE WAS TRANSFERRED), WHEREIN ON THE SUBJECT COLUM N ITSELF THE FACT OF MERGER OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD. WITH ATOS INDIA PVT. LTD. VIDE HIGH COURT ORDER DATED 29/12/2012 WAS VER Y CLEARLY MENTIONED IN BOLD LETTERS. EVIDENCES IN THIS REGARD ARE ENCLOSED IN PAGE 1351 TO 1353 OF THE PAPER BOOK. DESPITE ALL TH ESE FACTS, THE FOLLOWING ORDERS WERE PASSED BY THE LOWER AUTHORITI ES. A) ORDER U/S.92CA(3) OF THE ACT BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, TRANSFER PRICING 1(1), MUMBAI DATED 2 7/01/2015 IN THE NAME OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD ., (AMALGAMATING COMPANY) B) DRAFT ASSESSMENT ORDER DATED 31/03/2015 IN THE NAME OF ATOS IT SOLUTIONS AND SERVICES PVT. LTD. (AMALGAMATING COMP ANY) C) DIRECTIONS ISSUED BY THE LEARNED DRP U/S.144C(5 ) OF THE ACT DATED 29/12/2015 IN THE NAME OF ATOS IT SOLUTIONS AND SER VICES PVT. LTD (NOW MERGED WITH ATOS INDIA PVT. LTD.) D) FINAL ASSESSMENT ORDER PURSUANT TO THE DIRECTIO NS OF LEARNED DRP WAS PASSED U/S.143(3) R.W.S. 144C(13) OF THE ACT DA TED 27/01/2016 IN THE NAME OF ATOS IT SOLUTIONS AND SER VICES PVT. LTD. 7. FROM THE AFORESAID FACTS, IT COULD BE SEEN THAT EVE N AFTER THE LEARNED DRP TAKING INTO ACCOUNT THE FACT OF MERGER AND PASSING ORDER IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 7 BY GIVING DIRECTIONS TO THE LEARNED AO IN THE NAME OF THE MERGED ENTITY I.E. ATOS INDIA PVT. LTD, THE LEARNED AO CON TINUED TO FRAME THE FINAL ASSESSMENT ORDER IN THE NAME OF ERSTWHILE AMA LGAMATING COMPANY. HENCE, IT COULD BE SAFELY CONCLUDED THAT T HE LEARNED AO HAD PASSED DRAFT ASSESSMENT ORDER AS WELL AS THE FI NAL ASSESSMENT ORDER IN THE NAME OF NON-EXISTENT ENTITY DESPITE HA VING DUE INTIMATION OF THE FACT OF MERGER DULY APPROVED BY THE HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 21/12/2012. THE LAW IS NOW V ERY WELL SETTLED THAT ASSESSMENT FRAMED ON AN NON-EXISTENT ENTITY DE SERVES TO BE DECLARED AS VOID AB INITIO BY THE RECENT DECISION O F THE HONBLE SUPREME COURT IN THE CASE OF PCIT VS. MARUTHI SUZUK I INDIA LTD., REPORTED IN 416 ITR 613 WHEREIN IT WAS HELD THAT WH ERE DURING PENDENCY OF ASSESSMENT PROCEEDINGS, ASSESSEE COMPAN Y WAS AMALGAMATED WITH ANOTHER COMPANY AND THEREBY LOST I TS EXISTENCE, THE ASSESSMENT ORDER PASSED SUBSEQUENTLY IN THE NAM E OF SAID NON- EXISTENT ENTITY, WOULD BE WITHOUT JURISDICTION AND WAS TO BE SET ASIDE. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE A SSESSMENT ORDER FRAMED BY THE LEARNED AO IN THE INSTANT CASE DESERV ES TO BE QUASHED AS THE SAME IS WITHOUT JURISDICTION, BEING FRAMED O N A NON-EXISTENT ENTITY. ACCORDINGLY, THE ADDITIONAL GROUND RAISED B Y THE ASSESSEE IS ALLOWED. SINCE, THE ENTIRE ASSESSMENT IS QUASHED ON A LEGAL ISSUE, THE ADJUDICATION OF VARIOUS OTHER GROUNDS OF MERITS BEC OMES INFRUCTUOUS. 8. REFERRING TO THE ABOVE ORDER OF THE INCOME TAX APP ELLATE TRIBUNAL IN ASSESSEES OWN CASE, THE LEARNED COUNSEL OF THE ASS ESSEE SUBMITTED THAT ASSESSEE IS CONFIDENT OF GETTING THE NECESSARY RELI EF FROM THE ITAT ON THE ADDITIONAL GROUND AND ACCORDINGLY HE SUBMITTED THAT HE IS NOT PREPARED TO ARGUE UPON THE MERITS OF THE APPEAL. 9. PER CONTRA LEARNED DEPARTMENTAL REPRESENTATIVE SUBM ITTED THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.11.2012. ASSESSMENT ORDER HAS BEEN FRAMED SHOWING THE FOLLOWING NAME: M/S. ATOS IT SOLUTIONS AND SERVICES PVT. LTD. FORM ERLY SIEMENS INFORMATION SYSTEMS (INDIA) LTD., NOW KNOWN AS ATOS INDIA PVT. LTD. THE DRP ORDER MENTIONS THE ASSESSEES NAME AS ALTO S IT SOLUTIONS PRIVATE LIMITED, NOW MERGED WITH ATOS INDIA PVT. LT D., FORMERLY SIEMENS INFORMATION SYSTEMS (INDIA) LTD. 10. THE HONOURABLE BOMBAY HIGH COURT APPROVED THE AMALG AMATION ON 21.12.2012 WITH EFFECT FROM 01.07.2011. THE ASSESSE E DID NOT FILE ANY REVISED RETURN OF INCOME DESPITE THE FACT THAT TIME WAS AVA ILABLE. THE ASSESSEE DID NOT GET THE PAN AND PARTICULARS OF THE ASSESSEE DUL Y AFFECTED AND CHANGED IN THE INFORMATION SYSTEM OF THE REVENUE AS PER THE RE QUIREMENT BY MAKING IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 8 NECESSARY APPLICATION TO THE NSDL. DUE TO LACK OF C HANGE IN THE PARTICULARS OF PAN THE DEPARTMENTAL SYSTEM CONTINUED TO ISSUE NOTI CES AND OTHER DOCUMENTS IN THE PRE-AMALGAMATION NAME. DUE TO LACK OF CHANGE IN PAN PARTICULARS AND NAME IN THE DEPARTMENTAL SYSTEM THE AO DULY FRAMED THE ORDER BY DULY INCORPORATING THE FULL PARTICULARS. T HE ASSESSEE ITSELF PAID ITAT APPEAL FEE IN 2017 IN THE NAME OF EARLIER COMPANY. 11. IN THE LIGHT OF THE ABOVE DEPARTMENTAL REPRESENTATI VE REITERATED THAT THE ASSESSEE NOT FOLLOWING THE DUE PROCEDURES FOR C HANGE IN NAME AND NO. IN THE PAN DETAILS, THE ASSESSING OFFICER HAS NO OP TION BUT TO FRAME THE ASSESSMENT BY INCORPORATING ALL THE PARTICULARS ALO NG WITH THE UNCHANGED PAN. THE DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE IS NOT AGGRIEVED BY THE OLD PAN IN THE ASSESSMENT ORDER AS IT IS DUE TO THE MISTAKE OF THE ASSESSEE ITSELF THAT IT DID NOT CHAN GE. THE DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE PARTICULARS IN TH E NAME USED BY THE ASSESSING OFFICER CAPTURE ALL THE PARTICULARS AND T HERE IS NO REASON TO HOLD THE ASSESSMENT ILLEGAL. 12. PER CONTRA LEARNED COUNSEL OF THE ASSESSEE SUBMITS THAT IN IDENTICAL CIRCUMSTANCES ITAT IN ASSESSEES OWN CASE HAS QUASH ED ASSESSMENT HENCE THE SAME SHOULD BE DULY FOLLOWED. AS REGARDS THE IS SUE OF GETTING THE PARTICULARS OF PAN CHANGED BY APPLICATION AND OTHER DUE COURSE AND THE ISSUE OF FILING OF REVISED RETURN, LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THESE MIGHT HAVE BEEN DONE. 13. UPON CAREFUL CONSIDERATION WE FIND THAT HONOURABLE SUPREME COURT IN THE CASE OF HONDA CIEL (295 ITR 466) HAS HELD TH AT NON-CONSIDERATION OF THE ORDER OF THE ITAT IN ASSESSEES OWN CASE CAN RENDER THE ORDER OF ANOTHER BENCH OF THE ITAT CONTAINING MISTAKE APPARE NT FROM RECORD. SINCE THE ABOVE SAID ORDER OF THE ITAT IN ASSESSEES OWN CASE HAS NOT BEEN REVERSED BY THE HONOURABLE HIGH COURT, WE DULY FOLL OW THE AFORESAID ORDER AND HOLD THAT SINCE THE FACTS ARE IDENTICAL, THE AS SESSEE SUCCEEDS ON ADDITION GROUND FOLLOWING THE AFORESAID RATIO. ACCO RDINGLY THE ASSESSMENT IS TREATED AS NULL AND VOID. IT(TP) NO. 1806/MUM/2017 ATOS INDIA PVT. LTD. 9 14. SINCE THE LEARNED COUNSEL OF THE ASSESSEE HAS STATE D THAT HE IS CONFIDENT OF WINNING THE CASE ON THE ADDITIONAL GRO UND ON JURISDICTION AND IS NOT PREPARED ON THE MERITS OF THE CASE, THE MERI TS OF THE CASE ARE NOT BE ADJUDICATED AND TREATED AS NOT PRESSED. 15. IN THE RESULT, THE APPEAL FILED BY THE STANDS PARTL Y ALLOWED. ORDER PRONOUNCED UNDER RULE 334(4) OF THE ITAT RULE S ON 11 TH AUGUST, 2020. SD/ - SD/ - (PAWAN SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 11 TH AUGUST, 2020 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -DRP-1, MUMBAI 4. THE PR.CIT - CONCERNED, MUMBAI 5. THE DR, K BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.