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Income Tax Appellate Tribunal, MUMBAI BENCHES “K”, MUMBAI
Before: SHRI SAKTIJIT DEY (JM) & SHRI N.K. PRADHAN (AM)
Assessment Years: 2008-09 and 2009-10 he submitted, the reason for mentioning the name and PAN No. of the amalgamated company in the assessment orders is because reference to the Transfer Pricing Officer was made before the amalgamation. Finally, he submitted, the appeals filed by the assessee are not maintainable as in the challans for paying the appeal fee the assessee has mentioned the name of the erstwhile company.
In rejoinder, the learned Counsel for the assessee submitted, the very fact that the assessment orders have been passed in the name of non-existing entities make them invalid. Further, she submitted, mentioning the name of amalgamating company afterwards in the assessment orders would not validate them. She submitted, under identical facts and circumstances, the Hon’ble Supreme Court in case of Pr. CIT vs. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) has held the assessment orders passed in the name of amalgamated company to be invalid.
We have considered rival submissions and perused the material on record. The issue raised in the additional ground being a purely legal and jurisdictional issue going to the root of the matter and considering the fact that the issue can be decided on the basis of facts and material available on record and does not require investigation into fresh facts, We are inclined to admit the additional ground for adjudication.
Before we proceed to decide the issue, it is necessary to deal with the basic facts. By virtue of order dated 14.01.2011 passed by the Hon’ble Bombay High Court, BASF Coatings (India) Private Ltd. and BASF Polyurethanes India Ltd. amalgamated (merged) with BASF India Ltd. As per the scheme of amalgamation approved by the Hon’ble Bombay High Court, the amalgamation was effective from 1st April, 2010. After the decision of the Hon’ble Bombay High Court approving the amalgamation of the aforesaid two companies with the present appellant, which happened after filing of return of income for the assessment years under dispute in the present appeals, the assessee on 8th March, 2011 intimated in writing to the Assessing Officer about the fact of amalgamation of the two entities with BASF India Ltd. Along with the said Assessment Years: 2008-09 and 2009-10 letter, the assesse also enclosed copy of the order passed by the Hon’ble Bombay High Court approving amalgamation. In spite of such intimation by the assessee, the Assessing Officer not only proceeded to pass the draft assessment orders in the name of the erstwhile companies but also proceeded to pass the final assessment orders in the name of the erstwhile companies. To be precise, against the name of the assessee in the assessment orders. The Assessing Officer mentioned as under:- (i) M/s BASF Coatings India Pvt. Ltd. (now merged with BASF India Ltd.) (ii) M/s BASF Polyurethanes India Ltd. (now amalgamated into M/s BASF India Ltd.) 8. Thus, as could be seen from the impugned assessment orders, the Assessing Officer has mentioned the names of the erstwhile entities followed by the name of the amalgamating company. Even, the demand notice has been issued only in the name of the amalgamated company. Therefore, the issue before us is, whether the assessment orders passed in such a manner are legal and valid. The issue relating to the validity of orders passed in the name of non-existing entities has came up for judicial scrutiny in various cases. However, at present, the issue is no more res-integra as the Hon’ble Apex Court in the case of PCIT vs. Maruti Suzuki India Ltd. (supra) has set the dispute at rest. As could be seen from the factual matrix of M/s Maruti Suzuki India Ltd. (supra) case, the Assessing Officer passed the final assessment order by mentioning the name of the assessee as under:- “M/s Suzuki Powertrain India Ltd. (amalgamated with M/s Maruti Suzuki India Ltd.)”
The aforesaid factual position has been clearly captured in paragraph 15 of the decision rendered by the Hon’ble Apex Court in the case of M/s Maruti Suzuki India Ltd. Thus, viewed in the aforesaid context, it is very much clear that the facts involved in the present assessee’s case are identical to the facts involved in the case of M/s Maruti Suzuki India Ltd. (supra). While dealing with the issue of validity of the assessment order passed in the name of the erstwhile company followed by the name of the amalgamating company, Assessment Years: 2008-09 and 2009-10 The Hon’ble Supreme Court held the assessment order to be invalid as it was passed the name of a non-existing entity. Thus, as could be seen, the facts are no different in case the present assessee as well, as, the Assessing Officer has passed the assessment orders in the name of the erstwhile companies. Though, of course, he has also mentioned the name of the amalgamating companies afterwards. However, that will not validate the orders in view of the decision of the Hon’ble Supreme Court in the case of M/s Maruti Suzuki India Ltd. (supra). Therfore, the assessment orders passed by the Assessing Officer have to be declared as invalid and quashed. Accordingly, we do so. The additional grounds are allowed.
As we have quashed the assessment orders while deciding the additional ground, the other grounds raised by the assessee having become infructuous do not require adjudication.
In the result, appeals filed by the assessee are allowed as indicated above. Order pronounced in the open court on 22th October, 2020.