DCIT, GURGAON vs. M/S. MOTOROLA INDIA PVT. LTD., GURGAON
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH: ‘I’ NEW DELHI
Before: SHRI G.S. PANNU, HON’BLE & SHRI SAKTIJIT DEY
IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘I’ NEW DELHI
BEFORE SHRI G.S. PANNU, HON’BLE PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER
ITA No.99/Del/2015 Assessment Year: 2005-06
Motorola Solutions India Pvt. Vs. ACIT, Ltd., Circle-2, Motorola Excellence Centre, Gurgaon 415/2, Sector-14, M.G. Road, Gurgaon PAN :AABCM2326D (Appellant) (Respondent)
And ITA No.60/Del/2015 Assessment Year: 2005-06
DCIT, Vs. Motorola Solutions India Pvt. Circle-2, Ltd. (formerly known as Gurgaon Motorola Indian Electronics Pvt. Ltd.) Motorola Excellence Centre, 415/2, Sector-14, M.G. Road, Gurgaon PAN :AABCM2326D (Appellant) (Respondent)
Assessee by Sh. G.C. Srivastava, Advocate Sh. Mayank Patawari, CA Respondent by Sh. Mrinal Kumar Das, Sr. DR
Date of hearing 25.11.2022 Date of pronouncement 30.11.2022
ITA No.99/Del/2015 & 60/Del/2015
ORDER PER SAKTIJIT DEY, JM:
Captioned cross-appeals arise out of order dated 20.10.2014
of learned Commissioner of Income Tax (Appeals)-2, Faridabad,
pertaining to assessment year 2005-06.
ITA No.99/Del/2015 (Assessee’s Appeal)
Ground no. 1, wherein, the assessee has raised a legal issue
challenging the validity of the assessment order reads as under:
“1. The Ld. CIT(A) has erred in directing the Assessing Officer to reduce the expenditure incurred in foreign exchange from the “total turnover” in respect of provisions of section 10A of the IT Act.”
Since, the issue raised in this ground is a purely legal and
jurisdictional issue going to the root of the matter and can be
decided without making fresh investigation into the facts, not only
we admit the additional ground, but, at the very outset, we deem
it appropriate to address this issue.
Before us, Sh. G.C. Srivastava, learned counsel appearing
for the assessee submitted that by virtue of an order dated 30th 2 | P a g e
ITA No.99/Del/2015 & 60/Del/2015
March, 2006 passed by the Hon’ble High Court of Punjab &
Haryana, in Company Petition No. 7 of 2006, M/s. Motorola
India Pvt. Ltd., as the then it was, merged with M/s. Motorola
Solutions India Pvt. Ltd., the present assessee. He submitted, the
amalgamation was made effective from 01.04.2005. He submitted,
the fact of amalgamation of M/s. Motorola India Electronics Pvt.
Ltd. with M/s. Motorola Solutions India Pvt. Ltd. was duly
intimated to the Assessing Officer vide letter dated 23rd May,
2006. He submitted, in spite of such intimation to the Assessing
Officer that M/s. Motorola India Electronics Pvt. Ltd. is no more
in existence, still the Assessing Officer proceeded to pass the
assessment order in the name of a non-existent entity. He
submitted, the assessment order having been passed in the name
of non-existent entity is invalid. In support of such contention,
learned counsel relied upon the following decisions:
PCIT Vs. Maruti Suzuki India Ltd., [2019] 107
taxmann.com 375 (SC).
Spice Infotainment Ltd. Vs. CIT, Civil Appeal No.285 of
2014 (SC)
3 | P a g e
ITA No.99/Del/2015 & 60/Del/2015
Learned Departmental Representative submitted, the
assessee has filed the return of income in the name of erstwhile
company. Hence, the Assessing Officer proceeded to complete the
assessment in the said name, as, the assessee did not file any
revised return of income mentioning the new name. Though, he
could not controvert the fact that the assessee had intimated the
fact of amalgamation to the Assessing Officer much prior to the
completion of assessment, however, he submitted that passing of
the assessment order in the name of erstwhile company is not
fatal. In support of such contention, he relied upon the decision of
the Hon’ble Supreme Court in case of Principal CIT (Central)-2 Vs.
M/s. Mahagun Realtors (P) Ltd., Civil Appeal No. Nil of 2022
(Arising out of Special Leave Petition (C) No.4063 of 2020).
We have considered rival submissions and perused the
materials on record. The short issue arising for consideration
before us is, whether the assessment order having been passed in
the name of a non-existent entity is valid. For deciding the issue
we have to bear in mind the following crucial dates and events:
30.03.2006 Order passed by Hon’ble High Court of Punjab & Haryana approving the amalgamation of M/s. Motorola India Electronics Pvt. Ltd. with M/s. 4 | P a g e
ITA No.99/Del/2015 & 60/Del/2015
Motorola Solutions India Pvt. Ltd., w.e.f., 01.04.2005. 23.05.2006 The assessee intimated the Assessing Officer about the amalgamation with all documentary evidences. 29.12.2008 The Assessing Officer passes the assessment order in the old name.
From the aforesaid facts, it is very much clear that by the
time Assessing Officer passed the assessment order, M/s.
Motorola India Electronics Pvt. Ltd. was not in existence, having
amalgamated with the present assessee. Thus, in spite of the fact
that the Assessing Officer was made aware of the amalgamation
as early as on 23rd May, 2006 with all documentary evidences,
still, the Assessing Officer proceeded to pass the assessment
order in the name of the erstwhile company. In case of PCIT Vs.
Maruti Suzuki India Ltd. (supra), Hon’ble Supreme Court has
held that assessment order passed in the name of a non-existent
entity is equivalent to passing an order in the name of dead
person, hence, is invalid. The ratio laid down by the Hon’ble
Supreme Court squarely applies to the facts of the present case.
However, for the sake of completeness, it is our duty to deal with
the decision of the Hon’ble Supreme Court in case of PCIT Vs.
M/s. Mahagun Realtors (P) Ltd. (supra) cited by learned
Departmental Representative. On a careful reading of the decision 5 | P a g e
ITA No.99/Del/2015 & 60/Del/2015
cited by learned Departmental Representative, it is very much
clear that in the facts of this case, the Hon’ble Supreme court has
recorded a categorical finding that at no point of time the
assessee intimated the Assessing Officer about the fact of
amalgamation and continued to use the old name.
Considering the peculiar factual position, the Hon’ble
Supreme Court rejected assessee’s challenge to the validity of the
order passed in the name of erstwhile entity. However, in the very
same case, the Hon’ble Supreme Court has made it clear that the
facts involved in case of PCIT Vs. Maruti Suzuki India Ltd. (supra)
are different. Thus, in our view, in the facts of the present case,
the ratio laid down by the Hon’ble Supreme Court in case of PCIT
Vs. Suzuki India Ltd (supra) would squarely apply. Thus,
respectfully applying the ratio laid down by the Hon’ble Supreme
Court in case of PCIT Vs. Maruti Suzuki India Ltd. (supra), we
hold that assessment order, having been passed in the name of a
non-existent entity, is invalid. Accordingly, it is quashed. The
impugned order of learned Commissioner (Appeals) is hereby set
aside.
In view of our decision above, Revenue’s appeal in ITA
No.60/Del/2015, having become infructuous, is dismissed. 6 | P a g e
ITA No.99/Del/2015 & 60/Del/2015
In the result, assessee’s appeal is allowed, whereas,
Revenue’s appeal is dismissed.
Order pronounced in the open court on 30th November, 2022
Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER Dated: 30th November, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi
7 | P a g e
