SIEMENS TECHNOLOGY SERVICES PVT. LTD.(SUCCESSOR TO SIEMENS CORPORATE FINANCE PVT. LTD), MUMBAI V. A.C.I.T.7(2), MUMBAI

ITA 6313/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1996 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 08-04-2015
• Assessment Year: misc
• Appeal Filed On: 15-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: P PARDIWALA
• Keywords: Transfer pricing; International transaction; Procedural lapse; Scheme of amalgamation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) SIEMENS TECHNOLOGY SERVICES PRIVATE LIMITED (FORMERLY KNOWN AS SIEMENS CORPORATE FINANCE PRIVATE LIMITED), 130, PANDURANG BUDHKAR MARG, WORLI, MUMBAI- 400018 PAN: AAJCS 2261B ...... APPELLANT VS. THE ASSTT. COMMISSIOENR OF INCOME TAX, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020. .... RESPONDENT APPELLANT BY : SHRI P. PARDIWALA RESPONDENT BY : SHRI N.K.CHAND DATE OF HEARING : 15/11/2016 DATE OF PRONOUNCEMENT : 16/11/2016 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF THE ACIT, CIR.7(2), (IN SHORT THE ASSESSING OFFICER ) PASSED UNDER SECTION 144C(1) R.W.S 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) DATED 16/08/2012 , WHICH IS IN CONFORMITY WITH THE DIRECTION OF THE DISPUTE RESOLUTION PANNEL-2, M UMBAI DATED 27/07/2012. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL:- 2 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, A ND IN LAW: 1. THAT THE ASSESSMENT ORDER DATED AUGUST 16, 2012 PASSED IN PURSUANCE TO THE DIRECTIONS ISSUED BY THE LEARNED DISPUTE RESOLU TION PANEL ('LD. DRP') IS A VITIATED ORDER AS THE LD. DRP ERRED BOTH ON FACTS A ND IN LAW CONFIRMING THE ADDITION PROPOSED BY THE LD. ASSESSING OFFICER ('LD . AO)') TO THE APPELLANT'S INCOME. 2. THE LD. DRP ERRED BOTH ON FACTS AND IN LAW IN CO NFIRMING THE ADDITION OF RS. 1,12,46,145 TO THE INCOME OF THE APPELLANT BY H OLDING THAT ITS INTERNATIONAL TRANSACTION OF 'PROVISION OF BUSINESS SUPPORT SERVICES' DOES NOT SATISFY THE ARM'S LENGTH PRINCIPLE ENVISAGED UNDER THE INCOME-TAX ACT, 1961 ('THE ACT'). 3. THE APPELLANT FILED A RETURN OF INCOME FOR AS SESSMENT YEAR 2008-09 ON 21/09/2008 DECLARING A TOTAL INCOME OF RS.51,54,659 /-, WHICH WAS SUBJECT TO A SCRUTINY ASSESSMENT AND IN TERMS OF AN ORDER PASSED UNDER SECTION 144C(1) R.W.S 143(3) OF THE ACT DATED 16/08/2012 THE TOTAL INCOME HAS BEEN ASSESSED AT RS.1,64,00,800/-. APART FROM ASSAILING THE ADDI TION MADE TO THE RETURNED INCOME, THE ASSESSEE COMPANY HAS RAISED AN ADDITION AL GROUND OF APPEAL WHICH READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE APPELLANT SUBMITS THAT THE IMPUGNED ASSESSMENT ORDER DATED 16 AUGUST 2012 PASSED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 143( 3) READ WITH SECTION 144C(13) OF THE INCOME-TAX ACT, 1961, IS BAD IN LAW AS SIEMENS CORPORATE FINANCE PRIVATE LIMITED HAS CEASED TO EXIST ON THE DATE OF THE IMPUGNED ORDER ON ACCOUNT OF ITS MERGER WITH SIEMENS TECHNOL OGY AND SERVICES PRIVATE LIMITED WITH EFFECT FROM 1 OCTOBER 2011, THEREBY TH E ENTIRE ASSESSMENT PROCEEDINGS BE REGARDED TO BE VOID AB INITIO. 4. IN TERMS OF THE AFORESAID GROUND, IT IS SOUGHT T O BE CANVASSED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER I N THE NAME OF SIEMENS CORPORATE FINANCE PVT. LTD. IS VOID-AB-INITIO BECAU SE AS ON THE DATE OF THE ORDER OF ASSESSMENT THE SAID CONCERN HAD CEASED TO EXIST ON ACCOUNT OF ITS MERGER WITH SIEMENS TECHNOLOGY AND SERVICES PVT. LTD. W.E. F. 01/10/2011. THE AFORESAID ADDITIONAL GROUND OF APPEAL INVOLVES A P OINT OF LAW, FOR WHICH THE 3 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) NECESSARY FACTS EMERGE FROM THE RECORD, AND NO FRE SH INVESTIGATION OF FACTS IS REQUIRED AND, THEREFORE, IT IS ADMITTED FOR ADJUDIC ATION FOLLOWING THE RATIO OF THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE C ASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT, 229 ITR 383(SC). SINCE THE AFORESAID PLEA GOES TO THE ROOT OF THE JURISDICTION OF THE IMPUGNED ASSES SMENT, THE RIVAL COUNSELS WERE HEARD ON THIS ASPECT AT THE THRESH-HOLD ITSELF . 5. IN THE CONTEXT OF THE AFORESAID OBJECTION, THE R ELEVANT FACTS ARE THAT A COMPOSITE SCHEME OF AMALGAMATION UNDER SECTIONS 391 TO 394 OF THE COMPANIES ACT, 1956 WAS APPROVED BY THE HON'BLE B OMBAY HIGH COURT ON 26/08/2011, WHEREBY, INTER-ALIA, SIEMENS CORPORATE FINANCE PVT. LTD. MERGED WITH SIEMENS TECHNOLOGY AND SERVICES PVT. LTD. W.E .F. 01/10/2011. 6. THE LD. REPRESENTATIVE FOR THE ASSESSEE REFERRE D TO THE RELEVANT MATERIAL PLACED ON RECORD, VIZ. COPY OF THE ORDER O F THE HIGH COURT DATED 26/08/2011 AND ALSO THE SCHEME OF AMALGAMATION APPR OVED BY THE HON'BLE BOMBAY HIGH COURT, ETC. IN THE COURSE OF ASSESSMEN T PROCEEDINGS, ASSESSEE VIDE ITS COMMUNICATION DATED 6/12/2011 (DULY ACKNOW LEDGED IN THE OFFICE OF ACIT, CIR. 7(2) DATED 14/12/2011) INTIMATED TO THE ASSESSING OFFICER THE FACT OF ITS AMALGAMATION WITH SIEMENS TECHNOLOGY AND SERV ICES PVT. LTD. IN PURSUANCE TO ORDER PASSED BY THE HON'BLE BOMBAY HIG H COURT DATED 26/08/2011, A COPY OF SUCH COMMUNICATION HAS ALSO B EEN PLACED ON RECORD. NOW, THE GRIEVANCE OF THE ASSESSEE IS THAT THE SUB SEQUENT ASSESSMENT FINALIZED BY THE ASSESSING OFFICER ON 16/08/2012 IS IN THE NAME OF SIEMENS CORPORATE FINANCE PVT. LTD., WHICH IS A NON-EXISTEN T ASSESSEE AS ON THE DATE OF PASSING OF SUCH ASSESSMENT ORDER AND, THEREFORE, TH E ASSESSMENT ORDER IS VOID- AB-INITIO. IT HAS ALSO BEEN POINTED OUT THAT AFTER PASSING OF THE DRAFT 4 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) ASSESSMENT ORDER UNDER SECTION 144C(1) OF THE ACT D ATED 22/11/2011 ASSESSEE HAD RAISED OBJECTIONS BEFORE THE DRP ALSO WHEREIN, THE FACT OF THE MERGER STOOD DISCLOSED. FOR THIS, RELIANCE HAS BEEN PLACE D ON THE DECISION OF THE MUMBAI TRIBUNAL IN THE CASES OF AMBUJA CEMENT RAJA STHAN LTD., WTA NO.11/MUM/2014 DATED 24/02/2016 AND M/S. INSTANT HO LDINGS LTD., ITA NO.4593/MUM/2011 DATED 09/03/2016 WHEREIN, UNDER SI MILAR CIRCUMSTANCES, THE ASSESSMENT ORDERS PASSED IN THE NAME OF NON-EXI STENT ASSESSEES HAVE BEEN QUASHED. IN SUPPORT, RELIANCE HAS ALSO BEEN PLACED ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF JITEN DRA CHANDRALAL NAVLANI & ANR., WRIT PETITION NO.1069 OF 2016 DATED 08/06/201 6, WHEREIN IT HAS BEEN HELD THAT FRAMING OF ASSESSMENT IN RESPECT OF A NON -EXISTENT ENTITY GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSING OFFICER A ND AN ORDER PASSED IN THE NAME OF NON-EXISTENT ASSESSEE IS UNTENABLE IN THE EYES OF LAW. 7. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT CON TROVERTED ANY OF THE FACTUAL MATRIX BROUGHT OUT BY THE APPELLANT BUT HAS REFERRED TO A REPORT FURNISHED BY THE ASSESSING OFFICER DATED 17/03/2016 , A COPY OF WHICH IS PLACED ON RECORD. IN TERMS OF THE SAID REPORT, THE SUM AN D SUBSTANCE OF THE PLEA IS THAT THE POINT RAISED BY THE ASSESSEE IS HYPER-TECH NICAL AND NOT ON THE MERITS OF THE ADDITIONS. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE FACT-SITUATION IN THE PRESENT APPEAL CLEARLY BRINGS OUT THAT AT THE T IME OF FINALIZATION OF ASSESSMENT ORDER IN THE NAME OF SIEMENS CORPORATE FINANCE PVT. LTD. ON 16/08/2012, THE SAID CONCERN WAS NON-EXISTENT AS IT STOOD AMALGAMATED WITH SIEMENS TECHNOLOGY AND SERVICES PVT. LTD. CONSEQUEN T TO THE SCHEME OF AMALGAMATION APPROVED BY THE HON'BLE BOMBAY HIGH CO URT VIDE ORDER DATED 5 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) 26/08/2011(SUPRA). IT IS ALSO A FACT THAT THE ASSE SSEE BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THE FACTUM OF ITS AMALGAMATIO N WITH SIEMENS TECHNOLOGY PVT. LTD. VIDE COMMUNICATION DATED 6/12/2011, A COP Y OF WHICH IS ALSO PLACED ON RECORD. IN FACT, SUCH A POSITION WAS ALSO IN TH E KNOWLEDGE OF THE DRP, WHICH WAS APPROACHED BY THE ASSESSEE BY FILING FORM NO. 35A CONTAINING OBJECTIONS WITH RESPECT TO THE DRAFT ASSESSMENT ORDER, AND IN SUCH FORM NO.35A, THE NAME OF THE CORRECT ENTITY WAS MENTIONED. IN THIS CONTEXT, THE DECISION OF THE MUMBAI TRIBUNAL IN THE CASE OF INSTANT HOLDINGS LTD .(SUPRA), RELIED UPON BY THE ASSESSEE BEFORE US IS SQUARELY APPLICABLE. THE FOL LOWING DISCUSSION IN THE ORDER OF THE TRIBUNAL IS RELEVANT:- 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE CRUX OF THE CONTROVERSY IN THE PRESENT APPEAL REVOLVES AROUND T HE VALIDITY OF THE ACTION OF THE ASSESSING OFFICER IN FINALIZING THE ASSESSME NT ORDER ON 19.12.2008 IN THE NAME OF ITICL, A COMPANY WHICH WAS NON-EXISTENT AS ON THAT DATE, SINCE IT STOOD AMALGAMATED WITH IHL W.E.F. 1.4.2007 AND S TOOD DISSOLVED AND STRUCK-OFF FROM THE RECORDS OF THE REGISTRAR OF COM PANIES ON 5.2.2008 CONSEQUENT TO THE SCHEME OF AMALGAMATION APPROVED B Y THE HON'BLE BOMBAY HIGH COURT ON 14.12.2007. 8. IN THE CASE OF SPICE INFOTAINMENT LTD. (SUPRA), THE FACTS WERE THAT A RETURN WAS FILED FOR ASSESSMENT YEAR 2002-03 ON 30. 10.2002 BY M/S. SPICE CORP LTD., I.E., THE AMALGAMATING COMPANY. SUBSEQU ENTLY, VIDE ORDER DATED 11.2.2004 PASSED BY THE HON'BLE HIGH COURT, THE SAI D COMPANY STOOD AMALGAMATED WITH M/S. MCORP PRIVATE LTD., I.E., THE AMALGAMATED COMPANY W.E.F. 1.7.2003. THE RETURN SO FILED WAS PICKED UP FOR SCRUTINY ASSESSMENT VIDE NOTICE U/S. 143(2) OF THE ACT DATED 18.10.2003 IN THE NAME OF M/S. SPICE CORP LTD., I.E., THE AMALGAMATING COMPANY. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE FACTUM OF M/S. SPICE CORP LTD. HAV ING BEEN DISSOLVED AS A RESULT OF AMALGAMATION WITH M/S. MCORP PRIVATE LTD. WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER. HOWEVER, THE ASSE SSING OFFICER VIDE ORDER DATED 28.3.2005 PASSED U/S. 143(3) OF THE ACT FRAME D THE ASSESSMENT ON M/S. SPICE CORP LTD., I.E., THE AMALGAMATING COMPAN Y. IN THIS FACTUAL BACKGROUND, THE PLEA RAISED BY THE ASSESSEE BEFORE THE HON'BLE HIGH COURT WAS THAT THE ASSESSMENT WAS FRAMED AGAINST A NON-EX ISTING ENTITY AS M/S. SPICE CORP LTD. HAD ALREADY AMALGAMATED WITH M/S. M CORP PRIVATE LTD., AND THEREFORE, THE ASSESSMENT ORDER DATED 28.3.2005 SUF FERED FROM A JURISDICTIONAL DEFECT. IN THAT CASE, THE TRIBUNAL HAD TAKEN A VIEW THAT THE ACTION OF THE ASSESSING OFFICER IN FRAMING ASSESSME NT IN THE NAME OF M/S. 6 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) SPICE CORP LTD. EVEN AFTER THE SAID ENTITY STOOD DI SSOLVED CONSEQUENT UPON ITS AMALGAMATION WITH M/S. MCORP PRIVATE LTD. W.E.F. 1. 7.2003 WAS A MERE PROCEDURAL DEFECT. IN THIS BACKGROUND, THE HON'BLE DELHI HIGH COURT FORMULATED THE FOLLOWING QUESTIONS OF LAW: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN HOLDING THAT THE ACTION OF THE ASSESSING OFFICER IN FRAMING ASSESSMENT IN THE NAME OF SPICE CORP LTD., AFTER THE SAID ENTITY STOOD DISSOLVED CONSEQUENT UPON ITS AMALGAMATION WITH MCORP PRIVATE LIMITED W.E.F 01.07.2003, WAS A MERE PROCEDURAL DEFECT? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN HOLDING THAT IN VIEW OF TH E PROVISIONS OF SECTION 292B OF THE ACT, THE ASSESSMENT, HAVING IN SUBSTANCE AND EFFECT, BEEN FRAMED ON THE AMALGAMATED COMPANY WHIC H COULD NOT BE REGARDED AS NULL AND VOID? 9. THE HON'BLE DELHI HIGH COURT AFTER REFERRING TO THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF (I) SARASWATI INDUSTRIAL SYNDICATE V. CIT, 186 ITR 278 AND (II) GENERAL RADIO AND APPLIANCES C O. LTD. V. M.A. KHADER (1986) 60 COMP CASE 1013 HELD THAT FRAMING OF ASSES SMENT AGAINST A NON- EXISTING ENTITY GOES TO THE ROOT OF THE MATTER, WHI CH DID NOT CONSTITUTE A PROCEDURAL IRREGULARITY BUT A JURISDICTIONAL DEFECT . ACCORDINGLY, IT ANSWERED THE AFORESAID QUESTIONS OF LAW IN FAVOUR OF THE ASS ESSEE AND AGAINST THE REVENUE AND ALLOWED THE STAND OF THE ASSESSEE. 10. SIMILARLY, EVEN IN THE CASE OF INTEL TECHNOLOGY INDIA PVT. LTD. (SUPRA) THE HON'BLE KARNATAKA HIGH COURT HAS REACHED TO A S IMILAR CONCLUSION. IN THE CASE BEFORE THE HON'BLE KARNATAKA HIGH COURT, ONE M /S. SSS LTD. STOOD AMALGAMATED WITH INTEL TECHNOLOGY INDIA PVT. LTD. W .E.F. 1.4.2004; PRIOR TO THAT, IT FILED A RETURN OF INCOME ON 28.11.2003 FOR ASSESSMENT YEAR 2003-04 AND AN ASSESSMENT ORDER WAS PASSED ON 27.3.2006 IN THE NAME OF THE PREDECESSOR AMALGAMATING COMPANY, I.E., M/S. SSS LT D. THIS ASSESSMENT ORDER WAS SOUGHT TO BE CHALLENGED ON THE GROUND THA T AS ON 27.3.2006, I.E., THE DATE OF PASSING OF ASSESSMENT ORDER, THE SAID C ONCERN HAD CEASED TO EXIST UPON ITS AMALGAMATION WITH THE SUCCESSOR COMPANY. IN THIS FACTUAL BACKGROUND, THE HON'BLE KARNATAKA HIGH COURT, FOLLO WING THE JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE I NFOTAINMENT LTD. (SUPRA), ANSWERED THE FOLLOWING QUESTIONS OF LAW IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE. (1) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING TH AT THE ORDER PASSED BY THE ASSESSING OFFICER ON M/S SOFTWARE & S ILICON SYSTEMS 7 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) INDIA PVT. LTD., AFTER BEING INTIMATED ABOUT THE ME RGER WITH M/S INTEL TECHNOLOGY INDIA PVT. LTD., WAS WITHOUT JURISDICTIO N AGAINST THE SAID COMPANY AND NULL AND VOID ? (2) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THA T THE PROVISIONS OF SECTION 292B OF THE ACT WILL NOT MAKE THE ASSESSMENT 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 ACC ORDING TO THE INTEND AND PURPOSE OF THIS ACT ? (3) WHETHER THE TRIBUNAL HAS TO EXAMINE THE MATTER ON MERITS AND RECORD FINDING ON THE CONTROVERSY RAISED BEFORE IT BOTH BY THE REVENUE AS WELL AS THE ASSESSEE IN THEIR SEPARATE A PPEALS ? 11. TO THE SIMILAR EFFECT ARE THE JUDGEMENTS OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIMENSIONS APPAREL PVT. LTD. A ND MICRA INDIA PVT. LTD. (SUPRA). APART THEREFROM, THE JUDGEMENT OF THE HON 'BLE CALCUTTA HIGH COURT IN THE CASE OF I.K. AGENCIES (P) LTD. V. COMMISSION ER OF WEALTH TAX, 347 ITR 664 ALSO SUPPORTS THE PROPOSITION SOUGHT TO BE CANV ASSED BY THE ASSESSEE BEFORE US. IN SUM AND SUBSTANCE, IT IS SAFE TO DED UCE THAT AN ORDER OF ASSESSMENT MADE ON AN ENTITY WHICH IS OTHERWISE NON -EXISTENT ON THE DATE OF SUCH ASSESSMENT IS INVALID. 12. FACTUALLY SPEAKING, IN THE PRESENT CASE THE AFO RESAID PROPOSITION APPLIES ON ALL FOURS, AS BEFORE THE FINALIZATION OF THE IMPUGNED ASSESSMENT ON 19.12.2008, IT WAS BROUGHT TO THE NOTICE OF THE ASS ESSING OFFICER THAT ITICL STOOD AMALGAMATED WITH IHL W.E.F. 1.4.2007 IN TERMS OF A SCHEME OF AMALGAMATION APPROVED BY THE HON'BLE HIGH COURT VID E ORDER DATED 14.12.2007. IN OUR CONSIDERED OPINION, THE AFORESA ID ERROR ON THE PART OF THE ASSESSING OFFICER IS LIABLE TO BE CONSTRUED AS A JU RISDICTIONAL DEFECT WHICH GOES TO THE ROOT OF THE MATTER AND SUCH AN ASSESSME NT ORDER IS LIABLE TO BE SET-ASIDE. WE HOLD SO. AT THIS POINT, WE MAY TAKE NOTE OF THE ARGUMENT SET UP BY THE REVENUE, WHICH IS TO SAY THAT THE AMALGAM ATING COMPANY, I.E., ITICL WAS IN EXISTENCE THROUGHOUT THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, AND THEREFORE, THE ORDER PASSED IN THE NAME OF THE AMALGAMATING COMPANY, I.E., ITICL WAS A VALID ASSES SMENT. THE AFORESAID REASON HAS PREVAILED WITH THE CIT(A) ALSO TO REJECT THE PLEA OF THE ASSESSEE. IN OUR CONSIDERED OPINION, THE AFORESAID ARGUMENT O F THE REVENUE DESERVES TO BE REPELLED CONSIDERING THE RATIO OF THE JUDGEME NT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF SPICE INFOTAINMENT LTD. ( SUPRA). A READING OF THE JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN SPICE INFOTAINMENT LTD. (SUPRA) REVEALS THAT A SIMILAR POSITION WAS CANVASSED BY TH E REVENUE, BUT THE HON'BLE HIGH COURT HELD THAT THE ASSESSMENT ORDER P ASSED IN THE NAME OF THE ERSTWHILE COMPANY WAS VOID AND SUCH A DEFECT CANNOT BE TREATED AS A 8 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) PROCEDURAL DEFECT. IN OUR CONSIDERED OPINION, THE STAND OF THE REVENUE AS WELL AS THE CIT(A) ON THIS ASPECT IS CLEARLY UNTENA BLE HAVING REGARD TO THE AFORESAID DISCUSSION. 13. IN THE RESULT, WE SET-ASIDE THE ACTION OF THE A SSESSING OFFICER IN FRAMING THE ASSESSMENT AGAINST ITICL ON 19.12.2008 AS THE SAID COMPANY WAS NON-EXISTENT AS IT STOOD AMALGAMATED WITH IHL W .E.F. 1.4.2007, FOLLOWING THE SCHEME OF AMALGAMATION APPROVED BY TH E HON'BLE BOMBAY HIGH COURT ON 14.12.2007 TO THE SIMILAR EFFECT IS THE DECISION OF THE MUMBAI TRIBUNAL IN THE CASE OF AMBUJA CEMENTS RAJASTHAN (SUPRA). THE HON'BLE BOMB AY HIGH COURT IN THE CASE OF JITENDRA CHANDRALAL NAVLANI & ANR. (SURPA) ALSO UPHOLDS THE PROPOSITION THAT NO ASSESSMENT CAN BE MADE IN RESPECT OF NON-EX ISTENT ENTITY. IN FACT, THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT ALSO BRIN GS OUT THAT FRAMING OF ASSESSMENT IN RESPECT OF A NON-EXISTENT ENTITY GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSING OFFICER TO ASSESS THE NON-EXISTENT CONCERN AND, THUS, SAID DECISION ALSO CLEARLY ANSWERS THE OBJEC TION OF THE REVENUE IN THE PRESENT CASE THAT THE PLEA OF THE ASSESSEE IS MEREL Y HYPER-TECHNICAL. 8.1 CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTA NCES OF THE CASE, WE SET- ASIDE THE ACTION OF THE ASSESSING OFFICER IN FRAMI NG THE IMPUGNED ASSESSMENT AGAINST THE SIEMENS CORPORATE FINANCE PVT. LTD. ON 16/08/2012, BECAUSE ON THE SAID DATE, IT WAS A NON-EXISTING CONCERN ON ACC OUNT OF ITS AMALGAMATION WITH SIEMENS TECHNOLOGY AND SERVICES PVT. LTD. W.E .F. 01/10/2011 FOLLOWING THE SCHEME OF AMALGAMATION APPROVED BY THE HON'BLE BOMBAY HIGH COURT ON 26/08/2011(SUPRA). AS A CONSEQUENCE, THE ASSESSMENT ORDER DATED 16/08/2012 IS HELD TO BE AS INVALID AND VOID-AB-I NITIO. SINCE WE HAVE UPHELD THE PRELIMINARY PLEA OF THE ASSESSEE, WHICH GOES TO THE ROOT OF THE JURISDICTION AND THE ASSESSMENT ORDER HAS BEEN SET-ASIDE AS VOID -AB-INITIO, THE NECESSITY TO EXAMINE THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS OF THE 9 ITA NO.6313/MUM/2012 (ASSESSMENT YEAR 2008-09) ASSESSMENT ARE OBVIATED. THUS, IN CONCLUSION, WE A LLOW THE APPEAL OF THE ASSESSEE, AS ABOVE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 16/11/2016 SD/- SD/- (AMARJIT SINGH) (G.S.PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 16/11/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI