DCIT, Cir-10, Kolkata, Kolkata V. M/s Akzo Nobel Coatings India Ltd., Kolkata

ITA 334/KOL/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7648 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PAUL JCITSRDR
• Assessee Lawyers: MANONEET DALAL
• Keywords: Depreciation; Transfer pricing; Question of law; Procedural lapse; Scheme of amalgamation; TDS
• Section: 92D

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 334 & 530 KOL / 20 14 ASSESSMENT YEAR :2009-10 DCIT CIRCLE-10, P-7, CHOWRINGHEE SQUARE, 3 RD FLOOR, KOLKATA700 069 M/S AKZO NOBEL COATINGS INDIA PVT. LTD., ( NOW MERGED WITH AKZO NOBEL INDIA LTD ), GEETANJALI APARTMENT, 1 ST FLOOR, 8-B, MIDDLETON STREET, KOLKATA-71 [ PAN NO.AAACC 5072 B ] V/S . M/S AKZO NOBEL COATINGS INDIA LTD., 8B, MIDDLETON STREET, KOLKATA-71 DCIT, CIRCLE-10, P-7, CHOWRINGHEE SQUARE, KOLKTA-69 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI MANONEET DALAL, ADVOCATE /BY REVENUE SHRI SANJAY PAUL, JCIT-SR-DR /DATE OF HEARING 07-02-2019 /DATE OF PRONOUNCEMENT 24 -04-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THE REVENUE AND ASSESSEE HAVE FILED THEIR INSTANT C ROSS-APPEAL FOR ASSESSMENT YEAR 2009-10 AGAINST THE DEPUTY COMMISSI ONER OF INCOME TAX, CIRCLE-10, KOLKATAS ASSESSMENT ORDER DATED 31.01.2 014 PASSED IN COMPLIANCE TO THE DISPUTE RESOLUTION PANEL KOLKATA DRP HEREINAFTERS ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 2 DIRECTIONS DATED 23.12.2013, INVOLVING PROCEEDINGS U/S 144C(5) R.W.S. 144C(8) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. WE COME TO RIVAL PLEADINGS FIRST OF ALL. THE REV ENUES SOLE SUBSTANTIVE GROUND IN APPEAL NO. 334/KOL/2014 SEEKS TO REVIVE T HE ASSESSING OFFICERS ACTION DISALLOWING ASSESSEES DEPRECIATION CLAIMED ON PLANT AND MACHINERY AMOUNTING TO 103,28,327/- PROPOSED IN DRAFT ASSESSMENT ORDER DAT ED 29.09.2013 ON CORPORATE TAX ISSUE AND DELETE IN DRP S DIRECTION HEREINABOVE. THE ASSESSEES CROSS-APPEAL IN ITA NO.530/KOL/2014 ON THE OTHER HAND CHALLENGES CORRECTNESS OF THE LOWER AUTHORITIES AC TION MAKING TRANSFER PRICING ADJUSTMENT OF 385,40,857/- IN RELATION TO ITS INTERNATIONAL TRAN SACTIONS WITH OVERSEAS ASSOCIATES ENTERPRISE IN TRADING SEGMENT A ND ALSO IN NOT GIVING TDS CREDIT AS PER THE CORRESPONDING UP-TO-DATE DETAILS IN FORM 26AS AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF FINAL ASSESSME NT. 3. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THIS TAXPAYER HAS ALSO PREFERRED ITS ADDITIONAL GROUND IN CROSS-APPEAL ITA NO.530/KOL/2014 QUOTING RULE 11 OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1963. IT SEEKS TO ANNUL THE LOWER AUTHORITIES ORDERS AND ON THE GROUND THA T THE SAME HAVE BEEN PASSED ON A NON-EXISTENT ENTITY M/S AKZO NOBEL COA TINGS INDIA PVT. LTD. RELEVANT COPIES OF HON'BLE JURISDICTIONAL HIGH COUR TS AMALGAMATION SCHEME ORDER DATED 24.04.2012 ACCORDING APPROVAL WITH EFFE CT FROM 01.04.2011 AS WELL AS NECESSARY INTIMATION SENT TO THE DEPARTMENT DATED 13.06.2012 FROM PART OF THE CASE FILE BEFORE US. LEARNED AUTHORIZED REPRESENTATIVE VEHEMENTLY CONTENDS BEFORE US THAT THE IMPUGNED ASSESSMENT PRO CEEDINGS FRAMED ON A NON-EXISTENT ENTITY DESERVES TO BE DECLARED NOT SUS TAINABLE IN THE EYES OF LAW. 4. THE REVENUE IS FAIR ENOUGH IN NOT DISPUTING ALL THE ABOVE FACTUAL DEVELOPMENTS AS WELL AS CORRESPONDING DOCUMENTARY E VIDENCE TO THIS EFFECT. IT ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 3 HAS FILED A DETAILED WRITTEN NOTE OBJECTING TO ADMI SSION OF ASSESSEES ADDITIONAL GROUND AS FOLLOWS:- REVENUES VIEW ITA NO.530/KOL/2014 FOR AY 2009-10 I N THE APPEAL FILED BY M/S AKZO NOBEL INDIA LTD (ERSTWHILE M/S AKZO NOBEL COATINGS INDIA PVT. LTD. THE ASSESSEE HAS TAKEN UP AN ADDITIONAL GROUND FOR THE 1ST TIME BEFORE THE HON'BLE ITA, KOLKATA THAT ON THE FACTS AND CIRCUMS TANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY THE ASSESSING OFFICER (A SSESSING OFFICER') / DISPUTE RESOLUTION PANEL (DRP) / TRANSFER PRICING OFFICER (TPO) ARE BAD IN LAW AND VOID AB INTO AS THE SAME HAVE BEEN PASSED ON A NON- EXISTENT ENTITY, NAMELY AKZO NOBEL COATINGS INDIA PRIVATE LIMITED. CONTENTION OF THE SR. DR IN RESPECT TO THE CORPORAT E ISSUE ON THE ADDITIONAL GROUND RAISED BY THE ASSESSEE BEFORE THE HON'BLE IT AT, KOLKATA ON TECHNICAL ISSUE: THE ASSESSEE DID NOT PUT FORWARD/RAISE THE AFORESAI D GROUND/OBJECTION BEFORE THE AO/TPO/DRP REGARDING ANY WRONG SELECTION & WRONG REFERENCE FOR TP AUDIT, BEFORE THE RESPECTIVE PROCE EDINGS OF THE SAID AUTHORITIES. RATHER THE ASSESSEE COOPERATED WITH TH E AFORESAID THREE AUTHORITIES IN THE RESPECTIVE PROCEEDINGS AND CONTE STED THE TP/CORPORATE ISSUES ON MERIT ONLY. THE ASSESSEE ALSO DID NOT FILE THE AFORESAID GROUND BEFORE THE LD. DRP. THE ASSESSEE ALSO DID NOT BRING FORWARD THE ISSUE B EFORE THE AO DURING THE PASSING OF THE FINAL ASSESSMENT ORDER AF TER RECEIPT OF THE DRPS ORDER. AS PER PROVISION OF SEC 292BB OF THE IT ACT, 1961, THE ASSESSEE IS BARRED FROM, TAKING UP THE ISSUE OF WRONG/IMPROPER SERVICE OF NOTICE RESULTING INTO WRONG TP/ASSESSMENT ORDER HAD IT NOT RAISED THE SAME BEFORE THE ORIGINAL QUANTUM PROCEEDING BEFORE THE A O/TPO. IN VIEW OF THE ABOVE FACT, IT IS PRAYED BEFORE THE HON'BLE BENCH TO REJECT THE ADDITION AL GROUND ON TECHNICAL ISSUE RAISED BY THE ASSESSEE AND UPHELD THE DECISION OF THE AO/TPO. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS ON ADMISSIBILITY OF ASSESSEES ADDITIONAL GROUND SEEKI NG TO ANNUL THE IMPUGNED ASSESSMENT ON ACCOUNT OF THE SAME HAVING BEEN FRAM ED ON ERSTWHILE ORIGINAL ASSESSEE M/S AKZO NOBEL COATINGS INDIA PVT. LTD. TH E QUESTION AS TO WHETHER THIS TRIBUNAL COULD ADMIT SUCH ADDITIONAL GROUND OR NOT IS NO MORE RES INTEGRA IN VIEW OF HON'BLE APEX COURTS LANDMARK DECISION IN NATIONAL THERMAL POWER CO.LTD. VS. CIT (1998) 29 ITR 383 (SC) AS CONSIDERED IN ALL CARGO GLOBAL LOGISTIC LTD. VS. DCIT (2012) 137 ITD 24 (MUM)(SB) IN HOLDING THAT WE CAN VERY WELL ENTERTAIN A PURE QUESTION OF LAW WHEREIN ALL NECESSARY FACTS ARE ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 4 ALREADY ON RECORD IN ORDER TO ASCERTAIN CORRECT TAX LIABILITY OF AN ASSESSEE. WE WISH TO RE-EMPHASISE HERE THAT ASSESSEE HAS DULY PL ACED ON RECORD THE RELEVANT AMALGAMATIONS DETAILS AS WELL AS NECESSAR Y INTIMATION TO THE DEPARTMENT (SUPRA). THE SAME GOES TO ROOT OF THE MA TTER. WE THEREFORE ADMIT ASSESSEES ADDITIONAL GROUND IN ITS APPEAL ITA NO.5 30/KOL/2014. 6. COMING TO LEGAL ASPECT OF IMPUGNED ASSESSMENT IN VIEW OF THE ERSTWHILE ASSESSEES AMALGAMATION, WE FIND THAT THIS TRIBUNAL S CO-ORDINATE BENCHS DECISION IN AKZO NOBEL INDIA LTD. (FORMERLY KNOWN A S AKZO NOBEL CAR REFINISHES INDIA PVT LTD. FOR IMPUGNED ASSESSMENT Y EAR) IN ITA NO.2073/DEL/2014 DECIDED ON 10.07.2018 HAS DECLARED A SIMILAR ASSESSMENT TO BE NOT VALID AS FOLLOWS:- 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, IT IS NOTICED THAT THE ASSESSEE HAS RAISED LEGAL GROUND WHICH DOES NOT INV OLVE ANY FRESH INVESTIGATION INTO THE FACTS OF THE CASE. THEREFORE, THE SAME IS ADMIT TED BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS CIT REPORTED AT 229 ITR 383 (SUPRA). 8. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ASSESSMENT IN THIS CASE, HAS BEEN F RAMED BY THE AO ON THE ERSTWHILE AMALGAMATING COMPANY I.E. M/S AKZO NOBEL CAR REFINI SHES INDIA PVT. LTD. WHICH IS NOT IN EXISTENCE. THEREFORE, THE ASSESSMENT FRAMED IS VOID AB INITIO. THE LD. COUNSEL FOR THE ASSESSEE FURNISHED THE SEQUENCE OF EVENTS A S UNDER: S. NO. POINTS PARTICULARS REMARKS 1. AMALGAMATION EFFECTIVE FROM: APRIL 1, 2011 2. FACTS OF MERGER BROUGHT TO NOTICE OF ASSESSING OFFICER YES (VIDE LETTERS DATED JUNE 11, 2012, FILED BEFORE AO'S OFFICE ON JUNE 19, 2012) ATTACHED AS ANNEXURE 2 ALONG WITH THE ADDITIONAL GROUND OF APPEAL 3. DATE OF PASSING DRAFT ASSESSMENT ORDER MARCH 12, 2013 PASSED IN THE NAME OF ERSTWHILE ENTITY, I.E. AKZO NOBEL CAR REFINISHES INDIA PVT. LTD., WITHOUT ANY MENTION OF THE TRANSFEREE ENTITY'S NAME, I.E. AKZO NOBEL INDIA LIMITED. (REFER PAGES 121 OF APPEAL SET) 4. DATE OF TRANSFER PRICING ORDER JANUARY 4, 2013 PASSED IN THE NAME OF ERSTWHILE ENTITY, I.E. AKZO NOBEL CAR REFINISHES INDIA PVT. LTD., WITHOUT ANY MENTION OF THE TRANSFEREE ENTITY'S NAME, I.E. AKZO NOBEL INDIA LIMITED. (REFER PAGE 124 OF THE APPEAL SET) 5. DATE OF DRP DECEMBER 24, PASSED IN THE NAME OF E RSTWHILE ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 5 DIRECTIONS 2013 ENTITY, I.E. AKZO NOBEL CAR REFINISHES INDIA PVT. LTD., WITHOUT ANY MENTION OF THE TRANSFEREE ENTITY'S NAME, I.E. AKZO NOBEL INDIA LIMITED. (REFER PAGE 11 OF THE APPEAL SET) 6. DATE OF FINAL ASSESSMENT ORDER JANUARY 31, 2014 PASSED IN THE NAME OF ERSTWHILE ENTITY, I.E. AKZO NOBEL CAR REFINISHES INDIA PVT. LTD., WITHOUT ANY MENTION OF THE TRANSFEREE ENTITY'S NAME, I.E. AKZO NOBEL INDIA LIMITED. (REFER PAGE 1 OF APPEAL SET) 9. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LA WS: SPICE ENTERTAINMENT LTD. VS COMMISSIONER OF SERVIC E TAX IN ITA NOS. 475 & 476/2011 ORDER DATED03.08.2011 (DEL. HC) CIT, NEW DELHI VS M/S SPICE ENTERTAINMENT LTD. IN CIVIL APPEAL NO. 285/2014 (SC) AKZO NOBEL CHEMICALS (INDIA) LTD. (MERGED WITH AK ZO NOBEL INDIA LTD.) VS DCIT IN ITA NO. 1225/PUN/2015 ORDER DATED 09.02.2018 CIT(C)-II VS MICRA INDIA PVT. LTD. IN ITA 441, 44 4, 445, 446, 452 & 461/2013 ORDER DATED 22.01.2015 DCIT VS TRANSCEND MT SERVICES PVT. LTD. IN ITA NO . 2697/DEL/2014 ORDER DATED 30.11.2017 GENPACT INFRASTRUCTURE (BHOPAL) PVT. LTD. (NOW ME RGED WITH GENPACT INDIA) VS DCIT IN ITA NO. 2025/DEL/2014 ORDER DATED 09.02.2018 SHELL INDIA MARKETS PVT. LTD. VS ACIT IN ITA NO. 1055/BANG/2011 ORDER DATED 20.12.2017 CIT-III VS DIMENSION APPARELS (P.) LTD. (2015) 37 0 ITR 288 (DEL.) MARUTI SUZUKI INDIA LTD. VS DCIT, CIRCLE-16(1), N EW DELHI (2016) 72 TAXMANN.COM 164 (DEL.) PR. CIT-6, NEW DELHI VS MARUTI SUZUKI INDIA LTD. (2017) 85 TAXMANN.COM 330 (DEL.) 10. IN HIS RIVAL SUBMISSIONS, THE LD. CIT DR ALTHOU GH SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFOR ESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE, IT IS NOTICED THAT THE ERSTWHILE COMPANY M/S AKZO NOBLE CAR REFINISHES INDIA PVT. LT D. IN WHOSE HANDS, THE ASSESSMENT WAS FRAMED BY THE AO, AMALGAMATED W.E.F. 01.04.2011 WITH M/S AKZO NOBEL INDIA LTD. AND THIS FACT WAS BROUGHT TO THE KNOWLEDGE OF THE A O BY THE ASSESSEE VIDE LETTER DATED 11.06.2012 WHICH WAS RECEIVED IN HIS OFFICE ON 19.0 6.2012, COPY OF THE SAME IS PLACED ON RECORD AS ANNEXURE-2 ANNEXED TO THE ASSESSEES C OMPILATION. IT IS ALSO NOTICED THAT THE TPO PASSED THE ORDER DATED 04.01.2013 ON THE ER STWHILE AKZO NOBEL CAR REFINISHES INDIA PVT. LTD. BUT IGNORED THE AFORESAID INTIMATIO N FURNISHED BY THE ASSESSEE BEFORE THE AO ON JUNE 19, 2012. THE AO PASSED THE DRAFT ASSESS MENT ORDER DATED 12.03.2013 AND THE LD. DRP ALSO ISSUED THE DIRECTIONS VIDE ORDER D ATED 24.12.2013, THEREAFTER, THE AO FRAMED THE FINAL ASSESSMENT ORDER DATED 31.01.2014 IN THE NAME OF ERSTWHILE ENTITY I.E. AKZO NOBEL CAR REFINISHES INDIA LTD. WITHOUT ANY ME NTION OF THE TRANSFEREE ENTITY NAME I.E. AKZO NOBLE INDIA LTD. FROM THE AFORESAID NARRA TED FACTS, IT IS CLEAR THAT THE ASSESSMENT HAS BEEN FRAMED BY THE AO ON AN ENTITY W HICH WAS NOT IN EXISTENCE AFTER ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 6 THE ORDER DATED 18.04.2012 PASSED BY THE HONBLE HI GH COURT OF KARNATAKA AT BANGALORE, COPY OF WHICH IS PLACED AT PAGE NOS. 2 T O 37 OF THE ASSESSEES COMPILATION. 12. IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SI MILAR FACTS HAS BEEN DECIDED BY THIS BENCH OF THE TRIBUNAL WHEREIN ONE OF US (ACCOUNTANT MEMBER IS THE AUTHOR) IN ITA NO. 2025/DEL/2014 FOR THE ASSESSMENT YEAR 2009-10 IN TH E CASE OF M/S GENPACT INFRASTRUCTURE (BHOPAL) PVT. LTD. (NOW MERGED WITH GENPACT INDIA) VS DCIT, CIRCLE-12(1), NEW DELHI (SUPRA) WHEREIN THE RELEVANT FINDINGS HAV E BEEN GIVEN IN PARAS 8 TO 14 OF THE ORDER DATED 09.02.2018 WHICH READ AS UNDER: 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE ASSESSEE M/S GENPACT INFRASTRUCTURE (BHOPAL) PVT. L TD. AMALGAMATED WITH M/S GENPACT INDIA IN PURSUANT TO THE ORDER DATED 19.11. 2010 W.E.F. 01.04.2010 OF THE HONBLE DELHI HIGH COURT AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE AO (ACIT, CIRCLE-1, JAIPUR) VIDE LETTER DATED 24.01.2011 WHIC H WAS RECEIVED IN THE OFFICE OF ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-12, NE W DELHI ON 03.02.2011. IN THE SAID LETTER IT HAS BEEN MENTIONED AS UNDER: GENPACT INFRASTRUCTURE (BHOPAL) PRIVATE LIMITED WAS AN INDIAN COMPANY ENGAGED IN PROVIDING INFORMATION TECHNOLOGY (IT') / IT ENABLED SERVICES (ITES), WHICH HAD CHANGED ITS REGISTERED OFFICE CO DELHI INFORMATION TECHNOLOGY PARK, SHASTRI PARK, NEW DELHI. IT HAS BE EN ASSESSED TO INCOME- TAX WITH YOUR OFFICE VIDE PAN AACCG6569R. GENPACT I NDIA IS ANOTHER INDIAN COMPANY, ENGAGED IN RENDERING ITES. IT MAINTAINS IT S REGISTERED OFFICE AT DELHI INFORMATION TECHNOLOGY PARK, SHASTRI PARK, NE W DELHI. GENPACT INDIA IS PRESENTLY ASSESSED TO INCOME-TAX WITH CIRCLE I2(1), NEW DELHI VIDE PAN AAACG9163H. PURSUANT TO A SCHEME OF AMALGAMATION UNDER SECTION 391/394 OF THE COMPANIES ACT, 1956, AS SANCTIONED BY THE HON'BLE DELHI HIGH COURT VIDE ORDER DATED NOVEMBER 19, 2010. GENPACT BHOPAL HAS BEEN AMALGAMATED WITH GENPACT INDIA. CONSEQUENTLY, GENPACT BHOPAL HAS CEASED TO EXIST AS SEPARATE LEGAL ENTITY AND ALL ITS ASSETS AND LIABILITIES ALONG WITH ALL RIGHTS, OBLIG ATIONS, LICENSES, REGISTRATIONS ETC. STANDS TRANSFERRED TO GENPACT INDIA W.E.F. APRIL 1, 2010 BEING, THE APPOINTED DATE UNDER THE SCHEME OF AMALGAMATION. A COPY OF THE ORDER PASSED BY THE HONBLE DELHI HIG H COURT AND THE ACKNOWLEDGMENT OF FIFING, THE SAME WITH THE OFFICE OF REGISTRAR OF COMPANIES ON DECEMBER 31, 2010 IS COLLECTIVELY ENCLOSED AS ANNEX URE A FOR YOUR RECORDS. WE REQUEST YOUR OFFICE TO TAKE THE ABOVE RECORD. IT HAS FURTHER BEEN MENTIONED AS UNDER: FURTHER, IN VIEW OF THE AFORESAID, WE HEREBY SURRE NDER THE PAN AACCG6569R ISSUED TO GENPACT BHOPAL AND REQUEST YOU R OFFICE TO TRANSFER ALL THE FILES/RECORDS PERTAINING TO GENPACT BHOPAL MAINTAINED BY YOUR OFFICE, TO CIRCLE 12(1), NEW DELHI AND CONSEQUENTLY, ENABLE TH E OFFICE OF CIRCLE 12(1), NEW DELHI TO ISSUE ALL PENDING REFUNDS DUE TO GENPA CT BHOPAL TO GENPACT INDIA, IT BEING THE AMALGAMATED COMPANY. WE BELIEVE THAT OUR ABOVE REQUEST WILL BE ACCEDED T O. 9. FROM THE AFORESAID LETTER, IT IS CRYSTAL CLEAR T HAT INFORMATION WAS RECEIVED BY THE AO ON 03.02.2011 RELATING TO THE AMALGAMATION O F THE ASSESSEE WITH M/S GENPACT INDIA AND A REFERENCE WAS MADE BY THE AO U/ S 92CA(1) OF THE ACT TO THE TPO WHO VIDE LETTER DATED 17.02.2012 ASKED THE ASSESSEE TO SUBMIT THE DOCUMENT MAINTAINED IN TERMS OF SECTION 92D OF THE ACT. THE TPO PASSED THE ORDER U/S 92CA(3) OF THE ACT ON 29.01.2013. THE REAFTER, THE AO PASSED THE DRAFT ASSESSMENT ORDER DATED 12.03.2013 AND THE ASSESSEE RAISED THE OBJECTIONS BEFORE THE LD. DRP WHO ISSUED THE DIRECT ION TO THE TPO/AO VIDE ORDER DATED 26.12.2013 AND THE TPO ON THE DIRECTION S OF THE LD. DRP PASSED ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 7 THE ORDER GIVING EFFECT OF THE DIRECTION OF THE DRP -1 U/S 24(5) OF THE ACT ON 21.01.2014. ALL THE AFORESAID ORDERS WERE PASSED IN THE NAME OF ERSTWHILE ENTITY I.E. M/S GENPACT INFRASTRUCTURE (BHOPAL) PVT . LTD. WITHOUT ANY MENTIONING OF THE TRANSFEREE NAME I.E. M/S GENPACT INDIA. THEREFORE, IT IS CRYSTAL CLEAR FROM THE AFORESAID NARRATED FACTS THA T THE ENTITY M/S GENPACT INFRASTRUCTURE (BHOPAL) PVT. LTD. WHICH AMALGAMATED WITH M/S GENPACT INDIA, WAS NOT IN EXISTENCE WHEN THE TPO/AO/DRP PASSED THE IR RESPECTIVE ORDERS. 10. ON A SIMILAR ISSUE, THE ITAT DELHI BENCH I-1, N E W DELHI HAVING THE SAME COMBINATION PASSED A DETAILED ORDER AUTHORED BY THE AM IN THE CASE OF M/S MARUTI SUZUKI INDIA LTD. VS. DY. CIT REPORTED IN (2 016) 72 TAXMANN.COM. 164. AND THE RELEVANT FINDINGS HAVE BEEN GIVEN AS UNDER: 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL LE ON THE RECOR D. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE AMALGAMATING COMPANY M/S POWERTRAIN INDIA LTD. AMALGAMATED WITH M/S MARUTI S UZUKI INDIA LTD. W.E.F. 01.04.2012, AS A OF SCHEME OF AMALGAMATION D ULY APPROVED BY THE HON'BLE DELHI HIGH COURT VIDE ORDER DATED 2013 AND THE ASSESSMENT IN THIS HAS BEEN FRAMED BY THE AO VIDE O RDER DATED 03.03.2015. THEREFORE, DEAR THAT WHEN THE ASSESSMEN T ORDER WAS PASSED ON 03.03.2015, M/S SUZUKI POWERTRAIN INDIALT D. LOT INEXISTENCE. IT IS ALSO NOTICED THAT THE AFORESAID FACT WAS IN THE KNOWLEDGE OF THE DEPARTMENT AS THE INFORMED VIDE VA RIOUS LETTERS MENTIONED IN PARA 5 OF THE FORMER PART OF THIS ORDE R WHICH WERE TO THE VARIOUS TAX AUTHORITIES. HOWEVER, THE AO IN SPITE O F KNOWING THIS FACT THAT M/S SUZUKI IN INDIA LTD. AMALGAMATED WITH M/S MARUTI SUZUKI INDIA LTD., MADE THE REFERENCE TO THE TPO AND -SUED THE NOTICE DATED 07.11.2014 TO THE NON-EXISTENT ENTITY I.E. M/S SUZU KI POWERTRAIN INDIA LTD. 11. A SIMILAR ISSUE THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MICRA INDIA (P.) LTD. (SUPRA) UNDER: IN THE INSTANT CASE, NO DOUBT THERE WAS PARTICIPAT ION DURING THE COURSE OF ASSESSMENT; HOWEVER, THE ASSESSING OFFICE R, DESPITE BEING TOLD THAT THE ORIGINAL COMPANY WAS NO LONGER IN EXISTENCE, DID NOT LE REMEDIAL MEASURES AND DID NOT TRANSPOSE THE TRANSFEREE AS THE COMPANY WHICH HAD TO BE ASSES SED, INSTEAD, HE RESORTED TO A PECULIAR PROCEDURE OF DES CRIBING THE ORIGINAL ASSESSEE AS THE ONE IN EXISTENCE; ORDER AL SO MENTIONED THE TRANSFEREE'S NAME BELOW THAT OF ASSES SEE'S COMPANY. NOW, THAT DID NOT TO THE ASSESSMENT BEING COMPLETED IN THE NAME OF THE TRANSFEREE-COMPANY. AC CORDING TO THE SING OFFICER, THE ASSESSEE-COMPANY WAS STILL IN EXISTENCE. CLEARLY, THIS WAS A CASE WHERE THE ASSES SMENT WAS CONTRARY TO LAW, AS HAVING BEING COMPLETED AGAINST A NONEXISTENT COMPANY. THE TRIBUNAL'S DECISION IS, IN THE CIRCUMSTANCES, JUSTIFIED AND WARRANTED.' 12. SIMILARLY, THE HON'BLE JURISDICTIONAL HIGH COU RT IN THE CASE OF SPICE INFOTAINMENT LTD. V. CIT [IT NOS. 475 & 47 6 OF 2011, DATED 3-8-2011] HELD AS UNDER: NO DOUBT, M/S SPICE WAS AN ASSESSEE AND AS AN INCORPORATED COMPANY AND WAS IN EXISTENCE WHEN IT THE RETURNS IN RESPECT OF TWO ASS ESSMENT YEARS IN QUESTION. HOWEVER, BEFORE THE CASE COULD B E TED FOR SCRUTINY AND ASSESSMENT PROCEEDINGS COULD BE INITIA TED, M/S SPICE GOT AMALGAMATED WITH M CORP PVT. LTD. IT WAS THE RESULT OF THE SCHEME OF THE AMALGAMATION FILED BEFORE THE COMPANY ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 8 JUDGE OF THIS COURT WHICH WAS DULLY SANCTIONED VIDE ORDERS DATED 11TH FEBRUARY, 2004. WITH THIS AMALGAMATION M ADE EFFECTIVE FROM 1ST JULY, 2003, M/S SPICE CEASED TO EXIST. THAT IS THE PLAIN AND LE EFFECT IN LAW. THE SCHEME OF AMALG AMATION ITSELF PROVIDED FOR THIS CONSEQUENCE, INASMUCH AS SIMULTANEOUS WITH THE SANCTIONING OF THE SCHEME, M/ S SPICE WAS ALSO STOOD DISSOLVED BY SPECIFIC OF THIS COURT. WITH THE DISSOLUTION OF THIS COMPANY, ITS NAME WAS STRUCK OF F FROM THE ROLLS COMPANIES MAINTAINED BY THE REGISTRAR OF COMP ANIES. A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT IS A JURISTIC PERSON. IT TAKES ITS BIRTH AND GETS LIFE W ITH THE INCORPORATION. IT DIES WITH THE DISSOLUTION AS PER THE PROVISIONS OF THE COMPANIES ACT. IT IS TRITE LAW THAT ON AMALG AMATION, THE AMALGAMATING COMPANY CEASES TO EXIST IN THE EYES OF LAW. IN VIEW OF THE AFORESAID CLINCHING POSITION IN LAW, IT IS DIFFICULT TO DIGEST THE CIRCUITIOUS ROUTE ADOPTED BY THE TRIBUNA L HOLDING THAT THE ASSESSMENT WAS IN FACT IN THE NAME OF AMALGAMAT ED COMPANY AND THERE WAS ONLY A PROCEDURAL DEFECT. AFT ER THE SANCTION OF THE SCHEME ON 11TH APRIL, 2004, THE SPI CE CEASED TO EXIT W.E.F 1ST JULY, 2003. EVEN IF SPICE HAD FIL ED THE RETURNS, IT BECAME INCUMBENT UPON THE INCOME TAX AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN PLACE OF THE SAID ' DEAD PERSON '. WHEN NOTICE UNDER SECTION 143(2) WAS SENT, THE APPELLANT/AMALGAMATED COMPANY APPEARED AND BROUGHT THIS FACT TO THE KNOWLEDGE OF THE AO. HE, HOWEVER, DID N OT SUBSTITUTE THE NAME OF THE APPELLANT ON RECORD INST EAD, THE AO MADE THE ASSESSMENT IN THE NAME OF M/S SPICE WHICH WAS NONEXISTING ENTITY ON THAT DAY. IN SUCH PROCEEDINGS AND ASSESSMENT ORDER PASSED IN THE NAME OF M/S SPICE WO ULD CLEARLY BE VOID SUCH A DEFECT CANNOT BE TREATED AS PROCEDURAL DEFECT. MERE PARTICIPATION BY THE APPELLANT WOULD B E OF NO EFFECT AS THERE IS NO ESTOPPEL AGAINST LAW.' IT HAS BEEN FURTHER HELD AS UNDER: 'ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON-EXISTING ENTITY, IT DOES NOT REMAIN A PROCEDURAL IRREGULARITY OF THE NATURE WHICH COULD B E CURED BY INVOKING THE PROVISIONS OF SECTION 292B. T HE FRAMING OF ASSESSMENT AGAINST A NONEXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATTER WHICH IS NOT A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFE CT AS THERE CANNOT BE ANY ASSESSMENT AGAINST A ' DEAD PERSON '.' 13. IN THE PRESENT CASE ALSO AS THE ASSESSMENT WAS FRAMED IN THE NAME OF NON-EXISTING ENTITY I.E. M/S SUZUKI POW ERTRAIN INDIA LTD. WHICH AMALGAMATED WITH M/S MARUTI SUZUKI INDIA LTD. AND THIS IRREGULARITY WAS NOT CURABLE. THEREFORE, THE A SSESSMENT ORDER PASSED BY THE AO IN THE NAME OF NON- EXISTING ENTITY WAS VOID AB INITIO AND DESERVES TO BE QUASHED, WE ORDER ACCORDINGLY. 14. IN THE PRESENT CASE, THE CONTENTION OF THE ID. CIT DR WAS THAT THE ASSESSMENT WAS RIGHTLY FRAMED BY THE AO ON THE ASSESSEE WHO FILED THE RETURN OF INCOME AND WHEN TH E INCOME WAS EARNED, IT WAS INEXISTENCE. THIS CONTROVERSY HA S BEEN SETTLED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. DIMENSION APPARELS (P.) LTD. [2015] 370 ITR 288/[2014] ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 9 52 TAXMANN.COM 356 (DELHI) WHEREIN IT HAS BEEN HELD AS UNDER: 'SECTION 170(2) OF THE INCOME-TAX ACT, 1961, MAKES IT CLEAR THAT IN THE CASE OF AMALGAMATION, THE ASSESSM ENT MUST BE MADE ON THE SUCCESSOR (I.E., THE AMALGAMATE D COMPANY). SECTION 176 WHICH CONTAINS PROVISIONS PERTAINING TO A DISCONTINUATION OF BUSINESS, DOES N OT APPLY TO A CASE OF AMALGAMATION. THE LANGUAGE OF SECTION 159 EVIDENTLY ONLY APPLIES TO NATURAL PERSO NS AND CANNOT BE EXTENDED THROUGH A LEGAL FICTION, TO THE DISSOLUTION OF COMPANIES. ONCE IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON-EXISTING ENTITY IT DOES NOT REMAIN A PROCEDURAL IRREGULARITY OF THE NATURE WHICH COULD BE CURED BY INVOKING THE PROVISI ONS OF SECTION 292B. PARTICIPATION BY THE AMALGAMATED COMPANY IN ASSESSMENT PROCEEDINGS WOULD NOT CURE THE DEFECT BECAUSE 'THERE CAN BE NO ESTOPPELS AGAIN ST LAW.' 15. IN THE PRESENT CASE ALSO WHEN THE ASSESSMENT WA S FRAMED BY THE AO VIDE ORDER DATED 29.12.2015 IN THE NAME OF M/S SUZUKI POWERTRAIN INDIA LTD., THE SAID COMPANY HAD ALREADY AMALGAMATED WITH M/S MARUTI SUZUKI INDIA LT D. AND THEREFORE, IT WAS NOT INEXISTENCE. MOREOVER, IT IS CLEAR FROM THE PROVISIONS OF SECTION 170(2) OF THE ACT THAT IN THE CASE OF AMALGAMATION, THE ASSESSMENT MUST BE MADE ON THE SUCCESSOR I.E. THE AMALGAMATED COMPANY AND NOT ON T HE PREDECESSOR I.E. AMALGAMATING COMPANY. THEREFORE, I N THE PRESENT CASE, THE ASSESSMENT FRAMED BY THE AO VIDE ORDER DATED 29.12.2015 ON THE AMALGAMATING COMPANY I.E. M /S SUZUKI POWERTRAIN INDIA LTD. WHICH WAS NOT INEXISTE NCE ON THE DATE OF PASSING THE ASSESSMENT ORDER WAS NOT VALID AND AS SUCH THE SAME IS QUASHED. SINCE WE HAVE ALLOWED GRO UND NO. 1 OF THE ASSESSEE AND ASSESSMENT ORDER IS QUASHED, THEREFORE, NO FINDING IS GIVEN ON THE OTHER ISSUES RAISED BY THE ASSESSEE. 11. IT IS ALSO RELEVANT TO POINT THAT THE AFORESAID ORDER OF THE ITAT IN THE CASE OF MARUTI SUZUKI PVT. LTD. VS. DCIT, CIRCLE 16(1), NEW DELHI (SUPRA) HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT VID E ORDER DATED 4TH SEPTEMBER, 2017 IN THE CASE OF PRINCIPAL COMMISSION ER OF INCOME TAX, NEW DELHI VS. MARUTI SUZUKI PRIVATE LTD., REPORTED AT ( 2017) 85 TAXMANN.COM 330 (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER: THE REVENUE HAS REPEATEDLY BROUGHT THE ISSUE BEFOR E THE COURT IN A LARGE NUMBER OF CASES WHERE, IN MORE OR LESS IDENTICAL CIRCUMSTANCES, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER IN THE NAME OF THE ENTITY THAT HAD CEASED TO EXIST AS ON THE DATE OF THE ASSESSMENT ORDER. IN MA NY OF THESE CASES, AS IN THE PRESENT CASE, THE ASSESSING OFFICE R, AFTER MENTIONING THE NAME OF THE AMALGAMATING COMPANY AS THE ASSESSEE, MENTIONED BELOW IT THE NAME OF THE AMALGA MATED COMPANY. THE SUBMISSION OF REVENUE THAT UNDER SECTI ON 292B, THE SUCCESSOR-INTEREST IS PRECLUDED FROM RAIS ING AN OBJECTION IF IT HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS WAS NEGATIVED IN SPICE INFOTAINMENT LTD. V. CIT [20 12] 247 CTR (DEL.) 500 WHEREIN IT WAS HELD THAT ONCE IT WAS FOUND THAT ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 10 THE ASSESSMENT WAS FRAMED IN THE NAME OF A NON-EXIS TENT ENTITY, IT DID NOT REMAIN A PROCEDURAL IRREGULARITY OF THE NATURE WHICH COULD BE CURED BY INVOKING THE PROVISIONS OF SECTION 292-B. THE LEGAL POSITION HAVING BEEN MADE ABUNDANT LY CLEAR, THERE IS NO HESITATION IN HOLDING THAT IMPUGNED ORD ER PASSED BY TRIBUNAL DOES NOT REQUIRE ANY INTERFERENCE THE APPE AL IS ACCORDINGLY DISMISSED. 12. RECENTLY THE HONBLE APEX COURT DISMISSED THE S LP MOVED BY THE DEPARTMENT IN THE CASE OF M/S SPICE ENFOTAINMENT LT D. WHICH HAS BEEN FOLLOWED IN THE AFORESAID REFERRED CASE OF M/S MARU TI SUZUKI PVT. LTD. VS. DCIT, VIDE ORDER DATED 2ND NOVEMBER, 2017. 13. IN THE PRESENT CASE ALSO, AS WE HAVE ALREADY PO INTED OUT THAT THE ASSESSMENT WAS FRAMED BY THE AO ON THE NONEXISTENT AMALGAMATED COMPANY, NOT ON THE AMALGAMATING COMPANY, THEREFORE , THE ASSESSMENT FRAMED WAS VOID AB INITIO AND THE SAME WAS RIGHTLY QUASHED BY THE LD. CIT(A). SINCE, WE HAVE QUASHED THE ASSESSMENT FRAMED BY THE AO THEREFORE NO SEPARATE FINDING IS BEING GIVEN ON THE OTHER ISSUES RAISED IN THE DEPARTMENTAL APPEAL. 14. BEFORE PARTING, IT IS RELEVANT TO POINT OUT THA T IN THE ORDER RELIED BY THE LD. SR. DR I.E. IN THE CASE OF CIT, CENTRAL-1 VS M/S SH AW WALLACE DISTILLERIES LTD. (SUPRA), THE FACTS WERE TOTALLY DIFFERENT BECAUSE I N THE SAID CASE, THE ASSESSEE HAD NOT BROUGHT TO THE NOTICE OF THE DEPARTMENT IN PARTICULAR THE ASSESSING OFFICER, THE FACT ABOUT THE AMALGAMATION SANCTIONED BY THE HONBLE HIGH AND IT HAD ALSO FILED ITS RETURN OF INCOME FOR THE SUBS EQUENT ASSESSMENT YEAR. THEREFORE, THE ASSESSEE ITSELF HAD NOT ACTED UPON T HE AMALGAMATION BUT IN THE PRESENT CASE, THE FACTS ARE TOTALLY DIFFERENT A S THE ASSESSEE BROUGHT TO THE NOTICE OF THE AO ABOUT THE AMALGAMATION OF THE ERST WHILE GENPACT INFRASTRUCTURE (BHOPAL) PVT. LTD. WHICH AMALGAMATED WITH M/S GENPACT INDIA W.E.F. 01.04.2010 VIDE ORDER OF THE HONBLE DELHI H IGH COURT DATED 19.11.2010. THEREFORE, THE CASE RELIED BY THE LD. S R. DR IS OF NO HELP TO THE DEPARTMENT. 13. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERR ED TO ORDER DATED 09.02.2018, WE HOLD THAT THE ASSESSMENT FRAMED BY THE AO ON THE NO N-EXISTENT COMPANY I.E. AKZO NOBLE CAR REFINISHES INDIA PVT. LTD. IS VOID AB INI TIO. ACCORDINGLY, THE SAME IS QUASHED. 14. IN ITA NO.2468/DEL/2015 FOR THE ASSESSMENT YEAR 2010-11, THE FACTS ARE IDEN TICAL AS WERE INVOLVED IN ITA NO.2073/DEL/2014 FOR THE ASSESSMENT YEAR 2009-10, THEREFORE, OUR FINDING GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS. 7. WE FIND THE RELEVANT NECESSARY FACTUAL POSITION TO BE NO DIFFERENT HEREIN AS WELL AS SINCE THE IMPUGNED ASSESSMENT HAS ADMITT EDLY BEEN FRAMED ON THE ERSTWHILE ENTITY M/S AKZO NOBEL COATINGS INDIA PVT. LTD. WE THEREFORE ADOPT LEARNED CO-ORDINATE BENCHS REASONING MUTATIS MUTANDIS TO HOLD THE IMPUGNED ITA NO.334 & 530/KOL/2014 A.Y. 2009-10 DCIT, CIR-10, KOL. VS. M/S AKZO NOBEL CO ATINGS INDIA LTD. PAGE 11 ASSESSMENT AS INVALID NOT SUSTAINABLE IN THE EYES O F LAW. ORDERED ACCORDINGLY. BOTH PARTIES OTHER GROUNDS ON MERITS (SUPRA) ARE RE NDERED INFRUCTUOUS. 8. THE REVENUES APPEAL ITA NO.334/KOL/2014 IS DISM ISSED AND ASSESSEES CROSS-APPEAL ITA NO.530/KOL/2014 IS ALLO WED IN ABOVE TERMS ORDER PRONOUNCED IN THE OPEN COURT 24/ 04/2019 SD/- SD/- ( ) (( ) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 24 / 04 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S AKZO NOBEL COATINGS INDIA LTD, GEETAN JALI APARTMENT, 1 ST FL. 8-B, MIDDLETON STR EET, KOLKATA-71 2. /REVENUE-DCIT, CIRCLE-10, P-7, CHOWRINGHEE SQ. 3 RD FL, KOLKATA-69 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,