IPSOS RESEARCH P.LTD,MUMBAI vs. ADDL CIT CIR 11(2), MUMBAI

आदेश / O R D E R

Per Manoj Kumar Aggarwal (Accountant Member)

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 section 40(a)(i) on a protective basis. The Appellant submits that this action of the Assessing Officer has resulted in double disallowance of the same expenditure to the extent of Rs.1,46,15,847/- 8. The Learned Assessing Officer erred in disallowing expenses reimbursed by the Appellant to its AEs aggregating to Rs.84,60,428/- under section 40(a)(i) of the Income-tax Act. 9. The learned Dispute Resolution Panel erred in ignoring the Appellant’s contentions and documentary evidences while upholding that the Appellant was required to deduct tax at source on amounts reimbursed by the Appellant to its Associated Enterprises. 10. The Assessing Officer erred in disallowing the employees’ contribution to Provident Fund and ESIC aggregating to RS. 8,196/- paid before the due date of filing the Return of Income. 11. The Dispute Resolution Panel erred in ignoring the following binding decisions of the jurisdictional High Court wherein it has been held that no disallowance is warranted in respect of employees’ contribution to Provident Fund paid before the due date of the filing the Return of Income: a.CIT v. Hindustan Organic Chemicals Ltd. (ITA NO.399 of 2012) (Bom.) b.CIT v. Ghatge Patil Transports Ltd. (ITA No.1002 and 1034 of 2012) (Bom.) 12. The Assessing Officer erred in levying interest under section 234A of Rs.2,17,586/- 2. The assessee, vide letter dated 07/12/2017, has raised additional grounds of appeal which read as follows:- 13. The Learned AO has erred in passing the final assessment order in respect of Assessment Year 2010-11 on a non-existent entity i.e.Synovate India Pvt.Ltd. which has been merged with IPSOS Research Pvt. Ltd with effect from 1st April,2012 vide order of the Hon’ble Bombay High Court dated 3rd May,2013. Hence the said final assessment order is bad in law and deserves to be quashed. 14. The assessment order is bad in law having been passed by an officer having no jurisdiction over the assessee.

Since additional grounds raised by the assessee are legal grounds and do not require appreciation of new facts, the same are taken on record in terms of judgment of Hon’ble Court rendered in Jute Corporation of India Ltd. Vs. CIT [187 ITR 688] and National Thermal Power Co. Ltd. Vs. CIT [229 ITR 383]. 3.1 Facts in brief are that the assessee being resident corporate assessee engaged in the field of market research was assessed u/s 143(3) pursuant

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 to directions of Ld. DRP vide final assessment order dated 12/01/2015 passed by Ld. Additional Commissioner of Income-tax-11(2), Mumbai wherein the assessee has been assessed at Rs.14.88 crores after certain additions / adjustments as against returned income of Rs.8.23 crores filed by the assessee on 11/10/2010. The assessee has been saddled with additions aggregating to Rs.6.65 crores on account of certain Transfer Pricing adjustment, disallowance u/s 40(a)(i) & disallowance u/s 43B for delayed payment of PF/ESIC and the same are the subject matter of this appeal. 3.2 During impugned AY, the assessee carried out certain international transactions with its Associated Enterprises [AE] and filed the details thereof in Form No. 3CEB. To compute the Arm Length Price [ALP] of these transactions, the same was referred to Ld. Transfer Pricing Officer-II(4) [TPO] u/s 92CA(1) on 27/07/2012. The Ld.TPO, vide order u/s 92CA(3) dated 21/01/2014, suggested upward adjustment of Rs.5.80 Crores against shares resources fees with respect to international transactions carried out by assessee and the same has been incorporated in the draft assessment order [draft order] dated 26/03/2014 passed by Ld. Additional Commissioner of Income Tax-8(3), Mumbai. In the said draft order, Ld. AO has proposed two more additions viz. Rs.8,915/- u/s 43B for delayed payment of PF/ESIC and another addition of Rs.89.57 Lacs u/s 40(a)(i) for want of tax deduction at source [TDS] on certain payments made by the assessee to its group entities located outside India. Resultantly, the income

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 of the assessee was proposed to be determined at Rs.14.93 Crores in the draft order dated 26/03/2014 which was subjected to objections by assessee before Ld. DRP. 3.3 The Ld. TPO noted that the assessee was market research company and part of Aegis Group PLC, UK who was parent company of entities namely Aegis Media (an independent communication network company) and Synovate (engaged as global market research company). Synovate employed about 6000 staff across 80 countries. It was noted that the assessee paid Shared Resource Fees [Fees] amounting to Rs.5.80 Crores to its AE namely Synovate Management Services Ltd., UK [SMSL] pursuant to Shares Resources Allocation Agreement [Agreement] between SMSL and Synovate Group of Companies. The said agreement provided that all group companies are having a continuing need for shared services regarding advice and assistance in the areas of business development client liaising, planning, financing, accounting, legal and personal matters, communication, branding and public affairs etc. The group companies nominated SMSL to aggregate the full costs of the said resources and then share / allocate these costs amongst the group companies on continuing basis. Besides actual cost, the assessee has paid a mark-up of 6% to SMSL during the impugned AY, which is claimed by the assessee to be at Arm’s Length in terms of an external comparability study performed by Ceteris, US LLC in 2007.

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 3.4 The main thrust of Ld. TPO was on verification of factum of receipt of actual services by the assessee against the payments made to its AE. Since the assessee failed to file any evidences to substantiate the receipt of service, Ld. TPO concluded the matter by making following observations:- The assessee has failed to demonstrate that it has received services. It has further failed to demonstrate the incurrence of cost by the AE as well as its allocation among the various group entities. In this view of the matter, there could neither be any cost contribution or payment for such service to the AE. Further, as no expenditure would have been incurred, there is no necessity to apply a particular method to arrive at such conclusion. In view of the judicial precedents as well as the facts on record, the ALP of intra group services is Nil Thus, an adjustment of Rs.5,80,47,258/- is made to the international transaction of the assessee. Incorporating the same, the aforesaid adjustment has been proposed in the draft order dated 26/03/2014 by Ld. AO which was sent for the directions of Ld. DRP in terms of Section 144C(1). 4. Aggrieved, the assessee raised objections before Ld. DRP and contested the impugned additions as proposed in the draft order. During proceedings, the assessee by way of detailed explanation, justified the payments in terms of the shared resource allocation agreement and drew attention to the entire gamut of shared services being availed by the assessee and the benefits derived there-from. However, not convinced, Ld. DRP confirmed the stand of lower authorities by making following observations:- 4.23 In view of the judicial precedents as well as the facts on record, we are of the view that the TPO has rightly determined the ALP of intra group services at Nil. The panel is also of the view that the assessee has failed to demonstrate that it has received services or that it benefitted from such services as claimed. We are of the view that the

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 TPO has not questioned the commercial expediency of such transaction entered into by the assessee, rather has only worked out the arm length price of the purported services. We are further of the view that no services are rendered nor received by the assessee and what is received (if at all) do not take character of chargeable service. The perusal of the e-mails and other contemporaneous record only goes to show that incidental and passive association benefits have been provided by the AE. In view of the matter, there could neither be any cost contribution or payment for such service to the AE. The TPO has therefore correctly computed the arm’s length price of the said transaction at Nil and the same is upheld. Thus grounds of objection nos. 1 to 4 are rejected.

Similarly, the other additions u/s 40(a)(i) has partially been confirmed by Ld. DRP whereas additions u/s 43B has fully been confirmed. Pursuant to these directions, the income of the assessee has finally been determined on 12/01/2015 at Rs.14.88 crores. Aggrieved as aforesaid, the assessee is in further appeal before us. 5.1 The Ld. Authorized Counsel for Assessee [AR], taking us through the documents placed in the paper-book reiterated the stand by placing reliance on several judicial pronouncements rendered on similar factual matrix and submitted that the impugned additions were not justified since the payments made by assessee were duly supported by various agreements / documents / emails etc. and the assessee derived huge benefits in terms of Shared Resources Allocation Agreement. 5.2 At the same time, the final assessment order has been assailed on legal grounds by drawing our attention to the fact that the final assessment has been made on an entity, which was not in existence at the time of passing of the final order, which vitiates the entire proceedings itself in terms of certain judgment of Hon’ble apex Court coupled with several other

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 judicial pronouncements and therefore, the same is liable to be set aside. In this regard, reliance has been placed on following judicial pronouncements:-

(i) CIT Vs. Spice Infotainment Ltd & Others [Civil Appeal No. 285 of 2014 Supreme Court] (ii) Spice Infotainment Ltd Vs CIT [ITA No. 475-476 of 2011 Delhi High Court] (iii) PCIT Vs. Sapient Consulting Ltd. [ITA No. 341/2016 Delhi High Court] (iv) CIT Vs Dimensions Apparels (P) Ltd. [370 ITR 288 Delhi High Court] (v) PCIT Vs Maruti Suzuki India Ltd. [85 Taxmann.com 330 Delhi High Court] (vi) CIT Vs Intel Technology Ina P Ltd [380 ITR 272 Karnataka High Court] (vii) Sapient Consulting Ltd. Vs. DCIT [ITA 1278/Del/2014 Delhi Tribunal] (viii) ACIT Vs DLF Cyber City Developers Ltd [34 ITR 696 Delhi Tribunal] (ix) Shell India Markets Pvt. Ltd. Vs. ACIT [ITA No. 772/M/2013 Mumbai Tribunal] (x) Siemens Technology Services Pvt. Ltd. Vs. ACIT [ITA No. 6313/M/2012 Mumbai Tribunal] (xi) Instant Holdings Ltd s ACIT [4593/M/11 & 4748/M/11 Mumbai Tribunal] (xi) Marshall Sons & Co Vs ITO [223 ITR 809 Supreme Court]

5.3 Per contra, Ld. DR, on merits, placed reliance on the stand of lower authorities and submitted that the complete onus to prove the factum of receipt of actual services rested on assessee and the failure to do so has rightly resulted into impugned additions. 5.4 On legal ground, Ld. DR submitted that the assessee never submitted the copy of the order of Bombay High Court sanctioning the terms of amalgamation and therefore, the fact of amalgamation could not be taken on record by Ld. AO. It was further argued that the stated fact of amalgamation was never communicated by the assessee to Ld. AO and therefore, the same could not be taken cognizance of while passing the final assessment order. It is further submitted that the assessee mentioned the said fact of amalgamation for the first time while raising objections

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 before Ld. DRP in Form-35A only and therefore, Ld. AO, having no knowledge thereof, was justified in passing the order in the name of original assessee. It was further submitted that the pending proceedings continue against the old entity and only the name is substituted in records and therefore, the same was mere technical defect which do not usurp the jurisdiction of Ld. AO. Our attention is drawn to the provisions of Section 292B to submit that mere technical defect in the assessment order stood cured by the statutory provisions and therefore, the assessment was perfectly valid. Reliance has been placed on following judicial pronouncements:- (i) GE Medical Systems (India) Pvt. Ltd. Vs ACIT [IT(TP) No. 563/Bang/2016 Bangalore Tribunal 21/04/2017] (ii) CIT Vs Shaw Wallace Distilleries Ltd. [70 Taxmann.com 381 Calcutta High Court 06/06/2016] (iii) Subhlakshmi Vanijya (P) Ltd. Vs. CIT [60 Taxmnan.com 60 Kolkata Tribunal 30/07/2015] (iv) Maruti Suzuki India Ltd. Vs. DCIT [72 Taxmann.com 164 Delhi Tribunal 21/07/2016] (v) Jitendra Chandralal Navlani Vs Union of India [80 Taxmann.com 107 Bombay High Court 08/06/2016]

6.1 We have carefully considered the rival contentions and perused relevant material on record. At the outset, it is noted that the assessee, by way of additional ground of appeal, has raised a pertinent legal ground which goes to the root of the matter and questions the very validity of the assessment proceedings itself and therefore, the same is taken up first. 6.2 To appreciate the issue in correct perspective, the details of various orders passed by lower authorities are tabulated below:-

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 No. Nature of Order Dated Authority Passed in the name of 1. Draft Assessment 26/03/2014 Additional commissioner of M/s. Synovate India Pvt. order-AO Income Tax-8(3) Ltd. 2. Order u/s 92 21/01/2014 Additional commissioner of M/s. Synovate India Pvt. CA(3)-TPO Income Tax-Transfer Ltd. Pricing II(1) 3. Directions u/s 16/12/2014 Dispute Resolution Panel-1 Synovate India Pvt. 144C(5)-DRP Ltd. (Now merged with IPSOS Research Pvt. Ltd.) 4. Final Assessment 12/01/2015 Additional commissioner of M/s. Synovate India Pvt. Order-AO Income Tax-11(2) Ltd.

A perusal of the above chart clearly reveals that the final assessment order dated 12/01/2015 has been passed by Ld. AO in the name of M/s Synovate India Pvt. Ltd. 6.3 The documents on record reveal that the erstwhile assessee namely M/s Synovate India Pvt. Ltd. stood amalgamated with another entity namely IPSOS Research Private Limited in terms of order of Hon’ble Bombay High Court dated 03/05/2013. Pursuant to same, M/s Synovate India private Limited filed relevant Form No. 21 intimating aforesaid change in the name of the assessee company to Registrar of Companies on MCA portal vide SRN No. B79186417 dated 11/07/2013 and the same has been approved on 23/07/2013 meaning thereby that the erstwhile assessee has completely ceased to exist with effect from 23/07/2013. 6.4 Prima facie, the said order of Hon’ble Bombay High Court has not been filed by the assessee before lower authorities at any stage of the proceedings. However, as per the submissions of Ld. AR, the above stated

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 fact was brought to the knowledge of the revenue at various stages and the same was duly noted, as evident from following correspondences:- Sr. Date Particulars No. 1. 09/01/2014 Letter from the assessee to Additional Commissioner of Income Tax (Transfer Pricing)-1(1) informing in para 20 of the said letter about the merger of Synovate India Pvt. Ltd. with IPSOS Research Pvt. Ltd 2. 02/06/2014 Letter from office of Deputy Commissioner of Income Tax-8(3) to the Assessee addressed to Synovate India Pvt. Ltd. (Since merged with IPSOS Research Pvt. Ltd 3. 10/07/2014 Letter from the Commissioner of Income Tax-8 to the assessee addressed to Synovate India Pvt. Ltd. (since merged with IPSOS Research Pvt. Ltd) 4. 05/01/2015 Letter from Joint Commissioner of Income Tax, Transfer Pricing-2(3) addressed to IPSOS Research Pvt. Ltd (formerly known as Synovate India Pvt. Ltd.) whereby the Joint Commissioner is assuming charge of Synovate India Pvt. Ltd. TP Assessment on account of merger with IPSOS Research Pvt. Ltd. in view of the fact that he has jurisdiction over alphabet “I” vide jurisdiction order dated 15/11/2014

The letter dated 09/01/2014 is reply of assessee to Ld. TPO where the assessee, at para-2 has clearly mentioned that ‘we have merged with Ipsos Research Pvt. Ltd. with effect from 03rd September, 2013 vide order of Bombay High Court dated 03rd May, 2013’. The said reply has been given on the letter head of the new company and the letter has been signed as Authorised Signatory of new entity i.e. IPSOS Research Pvt. Ltd. The letter dated 02/06/2014 has been written by Deputy Commissioner of Income Tax

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 8(3) regarding recovery of demand for AY 2008-09 and the same is addressed to ‘The Principal Officer, M/s Synovate India Pvt. Ltd. (Since merged with IPSOS Research Pvt. Ltd.). The letter dated 10/07/2014 by Income Tax Officer (HQ) regarding application of stay of demand for AY 2008-09 is similarly addressed. The letter dated 05/01/2015 by Joint Commissioner of Income Tax (Transfer Pricing)-2(3) regarding Transfer Pricing Proceedings for AY 2011-12 is also similarly addressed. All these evidences lend certain strength to the argument of Ld. AR that the stated fact was well within the knowledge of revenue and the same has also been recognized by way of various correspondences. Last, but not the least, upon perusal of assessment table as extracted at Para-6.2, we find that Ld. DRP directions are also issued in the name of M/s Synovate India Pvt. Ltd. (Since merged with IPSOS Research Pvt. Ltd.) which reveal that the said fact was considered / recognized by the Ld. DRP also. It is further noted that final assessment order has been passed by Ld. AO only in conformity with the directions of Ld. DRP and this fact, in itself, tilt the balance in assessee’s favor. Therefore, we find strength in legal arguments raised by Ld. AR that the final assessment order dated 12/01/2015 has been passed in the name of a non-existent assessee despite being within the knowledge of the revenue. Now the only question that survives for our consideration is that whether the said defect was mere technical defect and could be cured by the provisions of Section 292B. The answer to the same lies in judicial pronouncements being relied upon by the respective representatives.

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 6.5 So far as the judicial pronouncements on the issue is concerned, we find that issue is extensively covered by the judgment of Hon’ble Delhi High Court rendered in Spice Infotainment Ltd. Vs. Commissioner of Income Tax [247 CTR 500 03/08/2011] as approved by Hon’ble Apex Court on 02/11/2017 [Civil Appeal No. 285 of 2014], where the Hon’ble Delhi Court has discussed the aforesaid issue elaborately in the following manner:- 7. The aforesaid line of reasoning adopted by the Tribunal is clearly blemished with legal loopholes and is contrary to law. No doubt, M/s Spice was an assessee and as an incorporated company and was in existence when it filed the returns in respect of two assessment years in questions. However, before the case could be selected for scrutiny and assessment proceedings could be initiated, M/s Spice got amalgamated with MCorp Pvt. Ltd. It was the result of the scheme of the amalgamation filed before the Company Judge of this Court which was dully sanctioned vide orders dated 11th February, 2004. With this amalgamation made effective from 1st July, 2003, M/s Spice ceased to exist. That is the plain and simple effect in law. The scheme of amalgamation itself provided for this consequence, inasmuch as simultaneous with the sanctioning of the scheme, M/s Spice was also stood dissolved by specific order of this Court. With the dissolution of this company, its name was struck off from the rolls of Companies maintained by the Registrar of Companies. 8. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with the dissolution as per the provisions of the Companies Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. This position is even accepted by the Tribunal in para-14 of its order extracted above. Having regard to this consequence provided in law, in number of cases, the Supreme Court held that assessment upon a dissolved company is impermissible as there is no provision in Income-Tax to make an assessment thereupon. In the case of Saraswati Industrial Syndicate Ltd. Vs. CIT, 186 ITR 278 the legal position is explained in the following terms: "The question is whether on the amalgamation of the Indian Sugar Company with the appellant Company, the Indian Sugar Company continued to have its entity and was alive for the purposes of Section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under Section 391 read with Section 394 of the Companies Act. The Saraswati Industrial Syndicate, the transferee Company was a subsidiary of the Indian Sugar Company, namely, the transferor Company. Under the scheme of amalgamation the Indian Sugar Company stood dissolved on 29th October, 1962 and it ceased to be in existence thereafter. Though the scheme provided that the transferee Company the Saraswati Industrial Syndicate Ltd. undertook to meet

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 any liability of the Indian Sugar Company which that Company incurred or it could incur, any liability, before the dissolution or not thereafter. Generally, where only one Company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity." 9. The Court referred to its earlier judgment in General Radio and Appliances Co. Ltd. Vs. M.A. Khader (1986) 60 Comp Case 1013. In view of the aforesaid clinching position in law, it is difficult to digest the circuitous route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that "once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved". 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed 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 not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 12. 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 provisions of Section 292B of the Act. Section 292B of the Act reads as under:- "292B. No return of income assessment, notice, summons or other proceedings furnished or made or issue or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reasons of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act." 13. The Punjab & Haryana High Court stated the effect of this provision in CIT Vs. Norton Motors, 275 ITR 595 in the following manner:- "A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not be made on an invalid return. In the process, the Court observed as under:- "Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a return would not be treated as invalid, if the same "in substance and effect is in conformity with or according to the intent and purpose of this Act". Insofar as the return under reference is concerned, in terms of Section 140 of the

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 1961 Act, the same cannot be treated to be even a return filed by the respondent assessee, as the same does not even bear her signatures and had not even been verified by her. In the aforesaid view of the matter, it is not possible for us to accept that the return allegedly filed by the assessee was in substance and effect in conformity with or according to the intent and purpose of this Act. Thus viewed, it is not possible for us to accept the contention advanced by the learned Counsel for the appellant on the basis of Section 292B of the 1961 Act. The return under reference, which had been taken into consideration by the Revenue, was an absolutely invalid return as it had a glaring inherent defect which could not be cured in spite of the deeming effect of Section 292B of the 1961 Act." 15. Likewise, in the case of Sri Nath Suresh Chand Ram Naresh Vs. CIT (2006) 280 ITR 396, the Allahabad High Court held that the issue of notice under Section 148 of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent proceedings were null and void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application. 16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a ‘dead person’. 17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law in favour of the assessee and against the Revenue and allow these appeals. 18. We may, however, point out that the returns were filed by M/s Spice on the day when it was in existence it would be permissible to carry out the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice under Section 143 (2) of the Act. In these circumstances, it would be incumbent upon the AO to first substitute the name of the appellant in place of M/s Spice and then issue notice to the appellant. However, such a course of action can be taken by the AO only if it is still permissible as per law and has not become time barred.

The ratio of aforesaid judgment has subsequently been followed by the same court in its various subsequent judgments including PCIT Vs. Maruti

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 Suzuki India Ltd. [397 ITR 681] where the Hon’ble court has further observed as under:- 12. Even thereafter the Revenue has repeatedly brought the said issue before this Court in a large number of cases where, in more or less identical circumstances, the AO 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 many of these cases, as in the present case, the AO, after mentioning the name of the Amalgamating Company as the Assessee, mentioned below it the name of the Amalgamated Company. Illustratively the cases are: (i) CIT v Micra India (P.) Ltd. [2015] 231 Taxman 809/57 taxmann.com 163 (Del); (ii) CIT v. Micron Steels (P.) Ltd. [2015] 372 ITR 386/233 Taxman 120/59 taxmann.com 470 (Del) (iii) CIT v. Dimension Apparels (P.) Ltd. [2015] 370 ITR 288/[2014] 52 taxmann.com 356 (Del) (iv) BDR Builders & Developers (P.) Ltd. v. Asstt. CIT (Decision dated 26th July 2017 passed by this Court in W.P.(C) No. 2712 of 2016) 13. The question whether, for the purposes of Section 170 (2) of the Act, the defect of passing the assessment order in the name of an non-existent entity is a mere irregularity was answered by this Court in Dimension Apparels (P.) Ltd. (supra), where in paras 6 and 7 it was held as under: '6. Sections 170(1) and 170(2) of the Act do not assist the revenue in their case. The revenue does not contest that in a case of amalgamation, the predecessor (being a dissolved company) "cannot be found". Consequently, Section 170(2) applies. This provision clarifies that where the predecessor cannot be found, "the assessment of the income of the previous year in which the succession took place up to the date of the succession and of the precious year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor." (Emphasis Supplied) 7. The revenue seems to argue that the assessment is justified because the liabilities of the amalgamating company accrue to the amalgamated (transferee) company. While that is true, the question here is which entity must the assessment be made on. The text of Section 170(2) makes it clear that the assessment must be made on the successor (i.e., the amalgamated company).' 14. The submission that under Section 292B of the Act, the successor-in- interest is precluded from raising an objection if it has participated in the assessment proceedings was negative in Spice Infotainment Ltd.'s case (supra) where it was held: "...once it is found that the assessment is framed in the name of a non-existent entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292-B of the Act.'

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 15. On the issue of participation, the Court Dimension Apparels (P.) Ltd.'s (supra) observed: '22. On the last contention, i.e with respect to participation by the previous assessee, i.e the amalgamating company (which ceases to exist), again Spice (supra) is categorical; it was ruled on that occasion that such participation by the amalgamated company in proceedings did not cure the defect, because "there can be no estoppel in law." Vived Marketing Servicing Pvt. Ltd., (supra) had also reached the same conclusion.' 16. The legal position having been made abundantly clear in the above decisions, the Court has no hesitation in answering the question framed in the negative, i.e. in favour of the Assessee and against the Revenue.

Similar view has been expressed by Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani v. UOI [2016 386 ITR 288] in the following manner:- 'On receipt of the reopening notice, the Chartered Accountant of the erstwhile M/s. Addler Security Systems Pvt. Ltd., had originally accepted the some but immediately thereafter by letter dated 5th May, 2015 pointed out that the company M/s. Addier Security Systems Pvt. Ltd. is no longer in existence as it has been dissolved. Consequent thereto, the Assessing Officer has also issued a notice under Section 142(1) of the Act to one of the petitioner who was the Director of erstwhile M/s. Addler Security Systems Pvt. Ltd. (since dissolved). In response, the Director of the erstwhile M/s. Addler Security Systems Pvt. Ltd., pointed out that the company has already been dissolved and it is no longer in existence. Notwithstanding the above, the Assessing Officer by an order dated 28th March, 2016 has passed the impugned order framing the assessment in case of M/s. Addler Security Systems Pvt. Ltd. (since dissolved) for Assessment Year 2008-09. 4. Normally we would not have entertained a petition as an alternative remedy to file an appeal is available to the petitioners. However, prima facie, the impugned notice has been issued in respect of a non existing entity as MIs. Addler Security Systems Pvt. Ltd., which stands dissolved, having been struck off the Rolls of the Registrar of Companies much before its issue. Consequently, the assessment has been framed also in respect of the non-existing entity. This defect in issuing a reopening notice to a non- existing company and framing an assessment consequent thereto is an issue which goes to the root of the jurisdiction of the Assessing Officer to assess the non-existing company. Thus, prima fade, both the impugned notice dated 24th March, 2015 and the Assessment Order dated 28th March, 2016, are without jurisdiction."

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 Similar view has been taken by Mumbai Tribunal in Siemens Technology Services Private Ltd. Vs. ACIT [ITA No. 6313/Mum/2012 16/11/2016] with following observations:- 8. We have carefully considered the rival submissions. The fact-situation in the present appeal clearly brings out that at the time 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. consequent to the scheme of amalgamation approved by the Hon'ble Bombay High Court vide order dated 26/08/2011(supra). It is also a fact that the assessee brought to the notice of the Assessing Officer the factum of its amalgamation with Siemens Technology Pvt. Ltd. vide communication dated 6/12/2011, a copy of which is also placed on record. In fact, such a position was also in the 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 following discussion in the order of the Tribunal is relevant:- 7. We have carefully considered the rival submissions. The crux of the controversy in the present appeal revolves around the validity of the action of the Assessing Officer in finalizing the assessment 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 stood dissolved and struck-off from the records of the Registrar of Companies on 5.2.2008 consequent to the scheme of amalgamation approved by 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. Subsequently, vide order dated 11.2.2004 passed by the Hon'ble High Court, the said 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. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. 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-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved 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 the provisions of section 292B of the Act, the assessment, having in substance and effect, been framed on the amalgamated company which could not be regarded as null and void?" 9. The Hon'ble Delhi High Court after referring to the judgment 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 Co. Ltd. v. M.A. Khader (1986) 60 Comp Case 1013 held that framing of assessment against a non- existing entity goes to the root of the matter, which did not constitute a procedural irregularity but a jurisdictional defect. Accordingly, it answered the aforesaid questions of law in favour of the assessee 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 similar 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 Ltd. This assessment order was sought to be challenged on the ground that as on 27.3.2006, i.e., the date of passing of assessment order, the said concern had ceased to exist upon its amalgamation with the successor company. In this factual background, the Hon'ble Karnataka High Court, following the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra), answered the following questions of law in favour of the assessee and against the Revenue. "(1) Whether the Tribunal was correct in holding that the order passed by the Assessing Officer on M/s Software & Silicon Systems India Pvt. Ltd., after being intimated about the merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against the said company and null and void ? (2) Whether the Tribunal was correct in holding that 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.

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according 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 appeals?" 11. To the similar effect are the judgments of the Hon'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and 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. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is safe to deduce 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 aforesaid 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 Assessing 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 vide order dated 14.12.2007. In our considered opinion, the aforesaid error on the part of the Assessing Officer is liable to be construed as a jurisdictional defect which goes to the root of the matter and such an assessment 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 amalgamating 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 assessment. The aforesaid reason has prevailed with the CIT(A) also to reject the plea of the assessee. In our considered opinion, the aforesaid argument of the Revenue deserves to be repelled considering the ratio of the judgement 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 the Revenue, but the Hon'ble High Court held that the assessment order passed in the name of the erstwhile company was void and such a defect cannot be treated as a procedural defect. In our considered opinion, the stand of the Revenue as well as the CIT(A) on this aspect is clearly untenable having regard to the aforesaid discussion. 13. In the result, we set-aside the action of the Assessing 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 the 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 Bombay 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-existent entity. In fact, the judgment of the Hon'ble Bombay High Court also brings out that framing of assessment in respect of a non-existent entity

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 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 objection of the Revenue in the present case that the plea of the assessee is merely hyper-technical. 8.1 Considering the entirety of facts and circumstances of the case, we set- aside the action of the Assessing Officer in framing 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 account 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-initio. 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 assessment are obviated. Thus, in conclusion, we allow the appeal of the assessee, as above. 9. In the result, the appeal of the assessee is allowed as above.

Similar is the ratio of several other judicial pronouncements as relied upon by Ld. AR. Upon perusal of the same, we find that it is settled law that passing of assessment order in the name of non-existent entity is a jurisdictional defect and is not merely a technical defect which could not be cured by the provisions of Section 292B. 6.6 So far as the facts in GE Medical Systems (India) Pvt. Ltd. Vs ACIT [supra] as relied upon by revenue, is concerned, we find that the final assessment order dated 27/03/2015 passed by Ld. AO had recognized the factum of merger as evident from para-5 of the order and therefore, the facts of the same are distinguishable from the present case. Similarly, in the case of CIT Vs Shaw Wallace Distilleries Ltd. [supra], upon perusal of para- 7, we find that in that case the fact of amalgamation was never brought to the notice of Ld. AO which is factually different from present case in hand in view of our observations in para-6.4 above. Same is the position with

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 Subhlakshmi Vanijya (P) Ltd. Vs. CIT [supra] where we find that the fact of amalgamation was never brought to the notice of revenue. The other two case laws relied upon by revenue, in fact, helps the contention of the assessee since we have already noted that the fact of amalgamation was well within the knowledge of revenue. 7. Respectfully following the catena of judgment in assessee’s favor, we are inclined to hold that the final assessment order dated 12/01/2015 passed in the name of non-existing entity having jurisdictional defect could not be sustained and therefore, liable to be quashed. We order accordingly. 8. Since, we have quashed assessment on legal ground as aforesaid, the adjudication of other grounds raised in assessee’s appeal becomes merely academic in nature and we see no fruitful reason to delve into the same and therefore, not considered by us. 9. The assessee’s appeal stands allowed in terms of our above order.

ITA No. 1517/Mum/2016 AY 2011-12 10.1 In this year, the assessee, in similar fashion, has been saddled with quantum additions of Rs.7.83 crores on account of Transfer Pricing adjustment and disallowance u/s 40(a)(i) vide final assessment order dated 28/01/2016. Aggrieved, the assessee is before us with similar grounds of appeal as well as additional grounds of appeal. 10.2 The details of Assessment Order passed in this year could be tabulated in the following manner:-

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 No. Nature of Order Dated Authority Passed in the name of 1. Draft Assessment 12/03/2015 Deputy commissioner of M/s. Synovate India Pvt. order-AO Income Tax-10(1)(2) Ltd. 2. Order u/s 92 30/01/2015 Joint commissioner of M/s Ipsos Research CA(3)-TPO Income Tax-TPO 2(3) Pvt. Ltd. (Formerly Synovate India Pvt. Ltd.) 3. Directions u/s 19/11/2015 Dispute Resolution Panel-1 M/s Ipsos Research 144C(5)-DRP Pvt. Ltd. (in which M/s Synovate India Pvt. Ltd. has been amalgamated) 4. Final Assessment 28/01/2016 Deputy Commissioner of M/s. Synovate India Pvt. Order-AO Income Tax-10(1)(2) Ltd.

Since the factual matrix is similar qua legal ground, our discussion, observation and conclusion as for AY 2010-11, mutatis mutandis apply to the same and therefore, taking the same view, we hold that final assessment order was unsustainable in the eyes of law. Resultantly, the assessee’s appeal stands allowed in terms of our above order. Conclusion 11. Both the appeals filed by assessee stands allowed in terms of our above order. Order pronounced in the open court on 11th April, 2018.

Sd/- Sd/-

(Saktijit Dey) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member

मुंबई Mumbai; िदनांक Dated : 11.04.2018 Sr.PS:- Thirumalesh

ITA NO.1177/Mum/2015 & 1517/Mum/2016 IPSOS Research Private Limited Assessment Years: 2010-11 & 2011-12 आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent 2. आयकर आयु�(अपील) / The CIT(A) 3. आयकर आयु� / CIT – concerned 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6.

आदेशानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai