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Income Tax Appellate Tribunal, MUMBAI BENCH “K”, MUMBAI
ORDER PER GAGAN GOYAL, A.M:
This appeal by Revenue is directed against the order of Commissioner of Income Tax (Appeals)-58, Mumbai [for short ‘CIT(A)’] dated 31.03.2022 under section 143(3) r.w.s. 144C(3) of the Income Tax Act, 1961 (for short ‘the Act’) for A.Y. 2013-14. The Revenue has raised the following grounds of appeal:
“1. On the fact and circumstances of the case and in law the Id. CIT(A) erred in quashing the assessment order u/s 143(3) r.w.s. 144C(3) of the Income Tax Act for A.Y. 2013-14 on the ground that the order was passed on non-existing entity by relying on the decision of Apex court in the case of M/s. Maruti Suzuki India Ltd reported in 107 Taxma.com 375 even though the decision of Apex Court is distinguishable from facts of this case.
2. On the facts and circumstances of the case and in law the Id. CIT(A) erred in quashing the assessment order u/s143(3) r.w.s. 144C(3) of the Act for A.Y. 2013-14 by holding that it was passed on non-existing entity even though at the time of issue of notice u/s 143(2) of the Act, the assessee company was in existence whereas in the case of Maruti Suzuki India Ltd, notice u 143(2) of the Act was issued in spite of the fact that the AO was informed of the amalgamating entity having ceased to exist as a result of scheme of amalgamation approved by the Hon'ble High Court.
3. On the fact and circumstances of the case and in law the Id. CIT(A) erred in quashing the assessment order u/s 143(3) r.w.s. 144C(3) of the Income Tax Act for A.Y. 2013-14 even though he assessee had informed about merger of the assessee with M/s. Sony Pictures Network India Pvt. Ltd. w.e.f 01/07/2016 approved by Hon'ble High Court on 01/07/2016 during the course of assessment proceedings vide letter dated 02/01/2017 and the order was passed on 20/02/2017 in the name of M/s. SPE Networks India Inc. which is a procedural violation of nature adverted to in section 292B of the Act and there is no substantive illegality is as much as at the time of issue of notice u/s 143(2) of the Act, the assessee company was very much in existence.”
Brief facts of the case are that Assessment in this case was made in the name of M/s. SPE Networks-India Inc. (SPENI) where as this entity already merged with Sony Pictures Networks India Pvt. Ltd. (SPNI). Assessee filed a letter with the AO opting not to file any objections in the name of SPENI before DRP and also requested to pass the final assessment order in the name of SPNI, as SPENI is no more in existence. Despite of this fact AO chosen to pass the final assessment order in the name of SPENI u/s. 143(3) r.w.s. 144C(3) vide dated: 20.02.2017.
Vide its letter dated: 02.01.2017 assessee informed the AO and TPO about amalgamation between SPENI and SPNI u/s. 391 to 394 of the Companies Act effective from 1st April 2015. About this fact assessee again informed the authorities below vide its letter dated: 27.01.2017. This fact of change in name pursuant to amalgamation and its intimation to the concerned officers is not under challenge from Department.
Moreover, on similar issue in an appeal by assessee before coordinate bench vide dated 19.09.2022 for A.Y. 2012-13, matter adjudicated in favour of assessee on the ground of jurisdictional defect. Respectfully following the decision of coordinate bench mentioned (supra) on similar facts in assessee’s own case and law declared by the Hon’ble Apex Court in the case of PCIT vs. Maruti Suzuki India Ltd. reported in 416 ITR 613(SC.), we are of considered view that assessment made in the name of a non-existing entity is without jurisdiction, hence null and void ab initio. As such type of order suffers from “jurisdictional defect” and not from “procedural defect”, hence same can’t be cured even by section 292B, even if, the assessee has participated in the assessment proceedings.
In the result, ground nos. 1, 2 and 3 raised by the Revenue are dismissed.
In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on 13th day of March, 2023. Sd/- Sd/- (VIKAS AWASTHY) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, दिन ांक/Dated: 13/03/2023 SK, Sr.PS