SAPIENT CONSULTING PVT. LTD.,GURGAON vs. JT. CIT, NEW DELHI

PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER

2. That the Dispute Resolution Panel (‘DRP’)/ assessing officer erred on facts and in law in not appreciating that the assessment was initiated and completed on the non-existing entity and not on the amalgamating/ successor company. Hence, the final assessment order passed under section 143(3) read with section 144C of the Act is void-ab-initio and the same is liable to be quashed.

2.1 That the DRP/ assessing officer erred in not appreciating that the assessment proceedings initiated on the appellant were void-ab-initio and without valid jurisdiction since the notice under section 143(2) of the Act was issued upon the non-existing entity and not on the amalgamating/ successor company.

Corporate Tax: 3. That the DR PI assessing officer erred on facts and in law in disallowing deduction under section 10A of the Act amounting to Rs.49,09,91,664 on the ground that the appellant was not maintaining books of accounts separately for each undertaking eligible for deduction under section 10A of the Act ignoring the circular 1/2013 dated January 17, 2013 issued by the Central Board of Direct Taxes (‘CBDT’) clarifying the position in this regard.

3.1 That the DRP/ assessing officer erred on facts and in law in holding that the appellant failed to establish the separate and independent nature of each undertaking for claiming deduction under section 10A of the Act. 3.2 That the DRP/ assessing officer erred on facts and in law in not appreciating that the conditions prescribed to determine eligibility for claiming deduction under section 10A of the Act have to be examined in the first year of set up and once accepted, a contrary position is not 2 Assessment Year 2011-12 permissible in subsequent years. 3.3 Without prejudice, the DRP/ assessing officer erred on facts and in law in not appreciating that the assessee maintains ERP based accounts having separate and specific codes for each unit, which tantamount to maintenance of separate books of accounts.

4. That the DRP/Assessing Officer erred on facts and in law in excluding the interest income of Rs. 19,02,39,759 for the purpose of computing deduction u/s 10A of the Act.

4.1That the DRP/ assessing officer erred on facts and in law in holding that interest income was not generated out of the circulating capital. 4.2That the DRP/ assessing officer erred on facts and in law in not appreciating that interest income was eligible for deduction under section 10A of the Act, as the same constituted profits and gains of the eligible undertaking.

5. That the DRP/ assessing officer erred on facts and in law in disallowing 20% of overseas travelling, hotel and lodging expenses aggregating to Rs.3,34,58,400 on ad-hoc basis on the ground that the complete detail of expenses was not furnished before the assessing officer explaining the reasoning and necessity of the expenses. 5.1 That the DRP / assessing officer erred on facts and in law in not appreciating that the reasonableness of expenditure has to be seen from the point of view of businessman/ company and not that of the Revenue. 5.2 That the DRP/ assessing officer erred on facts and in law in not appreciating that the appellant follows cost plus mark- up model and accordingly, any disallowance of expense/ cost would also require reversal of corresponding revenue.

Transfer Pricing:

price of the 'international transactions’ of provision of software development services on the basis of the order passed under section 92CA(3) of the Act by the Transfer Pricing officer (‘TPO’).

6.1 That the DRP erred on facts and in law sustaining the action of the TPO in applying additional filter of export revenue of 75% of sales instead of benchmark of 25% applied by the appellant and accordingly rejecting a comparable, namely, Varna Industries Limited, from the final set of companies. 6.2 That the DRP erred on facts and in law in sustaining the action of the TPO in considering following companies as comparable to the appellant without appreciating that the companies does not satisfy the test of comparability laid down under Rule 10B(2) of the Income Tax Rules, 1962: Acropetal Technologies Limited - E-infochips Limited - E-Zest Solutions Limited - I-Gate Global Solutions Limited - Infosys Limited - Larsen & Toubro Infotech Limited - - Persistent Systems and Solutions Limited - Persistent Systems Limited - Sankhya Infotech Limited - Thirdware Solutions Limited - Wipro Technologies Services Limited

6.3 That the DRP erred on facts and in law in sustaining the action of the TPO in considering companies engaged in development of software products forthe purpose of benchmarking the international transaction of provision of software development services rendered by the appellant. 6.4 That the DRP erred on facts and in law in sustaining the action of the TPO in considering Infosys Limited in the final set of comparable companies without appreciating that companies with such high turnover does not satisfy the test of comparability laid down under Rule 10B(2) of the Income Tax Rules, 1962, for being operating in different market conditions and level of competition.

6.5 That the DRP erred on facts and in law in sustaining the action of the TPO in considering Wipro Technologies Services Limited in the final set of comparable companies without appreciating that the company has related party transactions in excess of benchmark of 25% applied by the TPO himself. 6.6 That the TPO / DRP erred on facts and in law in not allowing appropriate risk adjustment for the purpose of benchmarking the international transaction of provision of software services undertaken by the appellant allegedly holding that in absence of robust and reliable data, risk adjustment could not be considered.

The appellant craves leave to add, alter, amend or vary from the aforesaid grounds of appeal before or at the time of hearing.”

3.1 It is the submission of the assessee that fact of amalgamation of Sapient Corporation Pvt. Ltd. was within the knowledge of the AO/ revenue authorities. All the correspondences during the course of assessment proceedings, after Sapient Corporation Pvt. Ltd. ceased to exist in the eyes of law, were made by the amalgamated company, Sapient Consulting Pvt. Ltd. as successor to Sapient Corporation Pvt. Ltd. It is the contention of the asssessee that in view of the aforesaid, the notice issued under section 143(2) of the Act on Sapient Corporation Pvt. Ltd., which had ceased to exist and was non- existent on the date of initiation of assessment proceedings, is beyond jurisdiction, bad in law and void ab-initio and Assessment Year 2011-12 accordingly, the impugned order passed thereto is void ab initio and liable to be quashed.

3.2 Both the parties agree that the legal issue as raised by the assessee in Ground Nos. 2 and 2.1 need to be adjudicated upon first and then, if need be, the assessee’s case on merits can be heard. Accordingly, we proceed to hear both the parties on the legal issue, as raised in Ground Nos. 2 and 2.1 first.

4.1 On Ground No. 2.1, the Ld. AR submitted that reliance was being placed on the following decisions, wherein it has been held that the issue of notice to the amalgamating company, subsequent to the amalgamation becoming effective and fact of such amalgamation having been brought to the notice of the AO, is bad in law and void ab-initio:

• CIT v. Amarchand N. Shroff: 48 ITR 59 (SC) • Rustagi Engineering Udyog P. Ltd. v. DCIT: 382 ITR 443 (Del) • CIT v. Micron Steels (P.) Ltd.: 233 Taxman 120 (Del) . ACIT v. Micra India (P.) Ltd.: 231 Taxman 809 (Del) . Jitendra Chantralal Navlani v. Union Of India - [2016] 386 ITR 288 [Bom] . CIT v. Intel Technology India Pvt. Ltd.: 380 ITR 272 (Kar) . CIT v Express Newspaper: 40 ITR 38 (Mad) . Birla Cotton v CIT: 123 ITR 354 (Delhi) . R. C. Jain v. CIT : 140 Taxman 379 (Del) . CIT v. Kumari Prabhavati Gupta: 231 ITR 188 (MP) . CIT vs. Fatelal (1996) 88 Taxman 320 (MP) . Sajjan Kumar Saraf vs. CIT: 114 ITR 155 (Cal) . CIT vs. Surendra Kumar Bhandan: 164 ITR 323 (Pat) . Smt. Sudha Prasad V. Chief CIT: 186 CTR 475/ 133 Taxman 864 (Jharkhand) . Braham Prakash vs. ITO (2004) 192 CTR 190 (Del) . CIT vs. Ram Das Deokinandan Prasad (HUF): 277 ITR 197 (All) . M/s Computer Engineering Services India (P.) Ltd. v. ACIT: 172 TTJ 317 (Del) . M/s Mevron Projects Pvt. Ltd. vs. ACIT: to 5416/Del/2013 (Del) . Makers Development Services Ltd. v. CIT: 40 ITD 185(Bom) . Late A.Y. Prabhakar (Indl.) v. ACIT: 105 TTJ 391(Chenn.) . Impsat (P) Limited V. ITO: 91 ITD 354 (Del.) . Slocum Investment (P) Limited: 106 ITD 1/101 TTJ 658 (Del.) . Hewlett Packard (l)(P) Ltd. v ACIT: ITA No : 4016/DEL/05 . Pampasar Distillery Ltd. v ACIT:[2007] 15 SOT 331 (Kol) 9

4.1.1 The Ld. AR further submitted that in the following decisions, proceedings initiated and completed on a dead person were held to be invalid on the basis that notice issued in the name of a dead person or a non-existent entity cannot form the basis of framing an assessment. The assessment, if any, framed would be nullity and of no consequence:

. Shaikh Abdul Kadar vs. Income-tax Officer: 34 ITR 451(MP) . CIT v. Fatelal: 88 Taxman 320 (MP) . CIT vs. Surendra Kumar Bhadani: 164 ITR 323 (Pat.) . Mulchand Rampuria v. ITO: 252 ITR 758 @ 763 (Cal.) . CIT v Ram Das Deo Kinandan Prasad (HUF): 277 ITR 197(All) . Braham Prakash v ITO: 275 ITR 242 (Del.)

4.1.2 Further reliance in this regard was placed by the Ld. AR, on the following judgments wherein it has been held that an assessment framed in the name of a non-existent entity would tantamount to jurisdictional defect, thus, making it void ab-initio, and mere participation by the amalgamated company in the assessment proceedings would not cure the defect:

• CIT v. Amarchand N. Shroff: 48 ITR 59 (SC) • Saraswati Industrial Syndicate Ltd. v. CIT [1990]: 53 Taxman 92 (SC) • ITO v. Ram Prasad: 86 ITR 145 (SC) • CIT v. Spice Entertainment Ltd.: of 2011 (Del) • CIT v. Dimensions Apparels Pvt. Ltd.: 370 ITR 288 [Del HC] 10 Assessment Year 2011-12 • CIT v. Micron Steels (P.) Ltd.: 233 Taxman 120 (Del) • ACIT v. Micra India (P.) Ltd.: 231 Taxman 809 (Del) • Birla Cotton v CIT: 123 ITR 354 (Delhi) • R. C. Jain v. CIT : 140 Taxman 379 (Del) • CIT v Express Newspaper: 40 ITR 38 (Mad) . CIT v. Kumari Prabhavati Gupta: 231 ITR 188 (MP) • Smt. Sudha Prasad V. Chief CIT: 186 CTR 475 (Jharkhand) • CIT v. Intel Technologies India (P.) Ltd.: 232 Taxman 279 (Kar) • Satwant Exports (P.) Ltd. vs. ACIT: to 5345/Del/2013 (Del) • ACIT v. DLF Cyber City Developers Ltd.: ITA No.4010 4270/Del/2010 (Del) • Impsat (P) Limited V. ITO: 91 ITD 354 (Del.) . Images Credit & Portfolio (P) Ltd. vs. ACIT: ITA No. 5301 to 5306 & 5418 to 5423/Del/13 (Del) . Makers Development Services Ltd. v.CIT: 40 ITD 185 (Bom) • Slocum Investment (P) Limited: 101 TTJ 558 (Del.) • HCL Corporation Limited V. ACIT: ITA No. 447/Del/2004 (Del Trib) • Eicher International Ltd. vs. DCIT in ITA No.1824/Del/2011 (Del) . ACIT v. DLF Cyber City Developers Ltd.: 34 ITR (Trib) 696 (Del)

• Late A.Y. Prabhakar (Indl.) v. ACIT: 105 TTJ 391 (Chenn.) • Modi Corp. Ltd. (as suucessorto Calcutta Instalments (P) Ltd.) v. Jt. CIT: 105 TTJ 303 (Del.) • Century Enka Ltd. v. DCIT: 105 TTJ 528 (Mum) 4.1.3 The Ld. AR further submitted that the Delhi Bench of the Tribunal vide order dated 23.11.2015 in ITA no.1306/Del/2015 and 981/Del/2014 in assessee’s own case, have quashed the assessment order passed by the AO for the assessment years

2009-10 and 2010-11 as the orders were passed on the non- existent entity. Further, the Delhi High Court has dismissed the Assessment Year 2011-12 appeal filed by the Department, in against the order of the Tribunal.

4.1.4 Thus, in view of the above, the AO, being wellaware of not only the fact that SCPL had ceased toexist with effect from April

1, 2011 and also the settled legal position discussed supra, clearly erred in initiating and completing assessment on SCPL, a non-existent entity, and accordingly, the impugned order, in view of the settled legal position, is, therefore, bad in law, void ab- initio and liable to be quashed on this ground itself.

It was further submitted that it is not known as to why anybody filed the so called letter without taking care to take Assessment Year 2011-12 acknowledgment on such important issue. It was submitted that through the said letter, the assessee is supposed to have intimated the AO of the merger of Sapient Corporation Pvt. Ltd with Sapient Consulting Pvt. Ltd but the claim of the appellant is not verifiable from records of the Department. It was further submitted that the assessment proceedings for the present assessment year did not exist as on the date of the so called letter and hence there was no occasion for the Assessing officer to have taken note of the so called intimation. The Ld. CIT (DR) also made the following submissions- 5.1 The letter dated 27/01/2012 requests that the future correspondence be made to the new company at the new address. But as per records, the appellant never objected nor bring any anomaly in the address (if any) to the notice of the AO in any of their letters.

5.2 The assessee has not got its PAN cancelled. During the assessment proceedings the Old PAN number has been used by the assessee in all it letters to the AO.

5.3 In the income tax department, the cases are digitally selected for scrutiny. Almost all the data, especially of corporate assesses, is maintained in the system. The AO does not take print out of Assessment Year 2011-12 the return till the time hearing starts. So unless the appellant applies for cancellation of the PAN number, the system and the department continues to identify the company by the name as it appears in its system. Since the assessee did not get its PAN cancelled there is no occasion to make changes in the system.

5.4 The notice u/s 143(2) has been issued on selection of case for scrutiny on computer and has been issued by the AO on the name and PAN number which still exists on record.

5.5 It is noted here that the Return of Income has also been filed by the assessee in the same old name and same old PAN number, even though on the date of filing of the return, the company was supposed to be non-existent.

5.6 It is noted here that even when the addressee is the old amalgamating company. It is the amalgamated company that has been presenting itself before the authorities below. AO has accorded proper hearing to the appellant and also ultimately passed the order in the name of amalgamated company now merged with amalgamated company.

5.7 The Assessing officer has duly changed the name of the appellant in his records as soon as he became aware of it as is evident from the draft assessment order in which he has Assessment Year 2011-12 clearly written the name of the appellant as Sapient Ltd) - which incidentally is how assessee identifies itself.

5.8 The facts of the present case are distinguishable from the case of Spice Infotainment Ltd. vs. CIT: of 2011 decided by Hon’ble Delhi High Court on August 3, 2011. In that case the AO had passed the order even after the protest by the Assessee. There is a finding of fact in the Hon’ble High Court's order that the appellant on receipt of notice in the old name had promptly approached the AO and appraised him of the mistake and still the AO had gone ahead with proceedings and order in the old name. That is not the case in the instant appeal. The Assessee never pointed out this issue to the AO and TPO and raised it as a ground only for the first time before the DRP. Thus, the facts are clearly distinguishable and that too in a manner which has a material bearing. In this kind of facts Hon’ble High Court would not have come to the same conclusion.

5.9 The assessment u/s 143(3) has been ultimately made in the name of the correct persons both by Assessing officer and by DRP. Thus there is no cause for grievance.

Assessment Year 2011-12 5.10 The proceedings before DRP are continuation of the assessment proceedings and therefore also, the order is in the name of the correct entity.

5.11 Return of Income filed by the appellant also would be non est as the Hon’ble High Court of Delhi passed the order sanctioning the amalgamation of the appellant with Sapient Consulting Pvt. Ltd on 12/10/2011. It was submitted that vide that order the Hon’ble High Court pronounced the Ltd without the necessity of any further act or deed. Thus the appellant was pronounced non-existent on 12/10/2011 itself (though the same was to take effect from 01/04/2011 as per the scheme). Even then, the appellant filed the Return of Income in the name of the amalgamating company on 29/11/2011 which is much after the date of pronouncement of amalgamation-which as per the submissions is akin to corporate death. So to this extent, even the Return of Income filed by the appellant also would be non est.

5.12 The fact that the appellant did act on the said order of Hon'ble High Court dated 12/10/2011 is borne out from the fact that copy of the said order of the Court was submitted to the 16 Assessment Year 2011-12 Registrar of Companies on 18/11/2011 as mandated in the Judgment of the Hon’ble High Court itself.

5.13 There are no provisions under the Income Tax Act equivalent to Order XXII Rule 3 or Rule 10 of Civil Procedure Code. Income Tax Act permits assessment to be made even on artificial juridical persons.

5.14 Even otherwise it is submitted that the mentioning of amalgamating company’s name was a mere clerical error committed by the authorities below which is covered by provisions of S.292B of the Act.

5.15 Further the decision of Hon’ble High Court of Delhi in the case of Spice Entertainment Ltd. vs. CIT: of 2011. decided on August 3, 2011 (on which every other case laws on the issue are based) has not considered the pronouncement of Hon’ble Apex court on the issue of importance of substantial justice vs. technical considerations. It is therefore submitted with due respect that the said decision is per incuriam and need not be automatically followed by Hon'ble ITAT.

. The Hon’ble Supreme Court in Hindustan Steel Limited vs.

Dilip Construction Company, Air 1969 S.C. 1238(5) has held,- "The Stamp Act is a fiscal measure enacted to secure Assessment Year 2011-12 revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument."

. In Collector, Land Acquisition. Anantnag and another vs. Mst. Katiji and others 1987 AIR 1353, the Hon’ble Supreme Court has observed as under:

"i. THE legislature has conferred the powers to condone delay by enacting S. 5 of the Indian Limitation Act of 1463 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life- purpose for the existence of the institution of Courts ........................... ii. When substantial justice consideration technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. . .. iii. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of 18 Assessment Year 2011-12 removing injustice and is expected to do so. iv. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the. State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condensation of delay. v. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making tile pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. vi. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grate status. The Courts, therefore, have to inform with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits.” . The Division Bench of Madhya Pradesh in Rameshwar

Prasad and anr. Vs. Narayandas, AIR 1966 S.C. 1238(5). while following aforesaid judgment in Hindustan Steel

(supra) has rightly observed as under: "ONE has only to bear Assessment Year 2011-12 in mind that the Stamp Act is a fiscal measure enacted to secure revenue for the State and it has not been enacted to arm a litigant with a weapon of technicality.”

. The obligation of the Court to do substantial justice has been reiterated in Mrs. Margaret Lalita Samuel vs Indo

Commercial Bank Ltd. 1979 AIR 102. The Court has observed in this case as under: "IF the Supreme Court is satisfied that as a result of the order of remand substantial justice has been done to the parties in the consequential proceedings, the Supreme Court may decline to exercise its discretionary power to interfere. The jurisdiction under Art. 136 is not meant to correct an illegality brought to the notice of the Supreme Court, nor to undo, merely on account of such illegality, an adjudication which has done substantial justice to the parties."

. Lastly observations made by the Division Bench of the Hon’ble Karnataka High Court in Mangalore Ganesh

Beedi Works and others and Mangalore Ganesh Beedi Workers and Allied Beedi Factories Workers Association, Akbar Road Mandi Mohalla, Mysore [2004

(10.3) F'L.R .387) are submitted here since the same are Assessment Year 2011-12 material in view of the facts of the present case.(these observations are taken from the judgement of Hon'ble

Gujarat High Court in the case of Legal Heirs And Representative Of ... vs State Bank Of India on 2.3

December, 2004 in Misc. Civil Application No. 662 Of 2004) i. " The judicial review power vested in this Court under Article 226 of the Constitution of India should he exercised in such a way as to advance the objectives of law and not to thwart those objective. Technicalities cannot he permitted to hijack the divine rhythm of justice. The parties should win or lose on substantive grounds and not on technical tortures. The relief to be granted by the High Court must be such as could he considered permissible in law and worked out by application of legally recognized principles. The decision must have legitimacy of legal reasoning and should not incur the criticism of lacking the objectivity of purpose and rational and legal justification." 5.16 The Ld. CIT (DR) submitted that the crux of all the leading cases of the Supreme Court and of various High

Courts is the technical lacunas, if any, cannot defeat the substantial justice and deficiency or technical mistakes in any manner would not give a right to a litigant to take benefit of the same and defeat justice.

Assessment Year 2011-12 5.17 It was submitted that in light of the legal position, as submitted, the legal ground of the assessee should be dismissed and the appeal be heard and decided on merits.

6.0 We have heard the rival submissions and carefully produced the relevant material placed on record before us. It is seen that the issue is squarely covered by the order of the ITAT Delhi Bench in assessee’s own case for AY 2009-10 and AY 2010-11 in 981/Del/2014 and 1306/Del/2015 wherein an identical issue was settled in favour of the assessee be applying the ratio of decision of the Hon’ble Delhi High Court in the case of Spice Infotainment Ltd. Vs. CIT (Supra). The relevant findings of the ITAT are at Paragraphs 15-19 of the said order and the same are being reproduced for a ready reference-

“15. In the light of above noted dates of events having taken place in the present case, we proceed to decide the legal objection of the assessee against validity of impugned assessment orders. At the very outset, we are required to consider the ratio of the decision of Hon’ble, High Court of Delhi in the case of Spice Entertainment Ltd vs CST dated 3.8.2011 in of 2011 wherein their lordships speaking for Hon'ble Jurisdictional High Court held as follows:-

"16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of s. 202B of the Act are not applicable in such a case. The Assessment Year 2011-12 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.

Assessment Year 2011-12 19. Since we have quashed assessment order being without valid jurisdiction, the other grounds of the assessee become academic and infructuous and we also dismiss the same being infructuous without any deliberations on merit.”

6.1 Coming to the facts of the instant case, it is undisputed that the asseseee Sapient Corporation Private Limited was incorporated on March 9, 2000 and was consistently being assessed in Circle 7(1), C.R. Building, New Delhi. It is again an undisputed fact that on November 13, 2009, a new company in the name of Sapient Consulting Private Limited was incorporated.

Further, it is also undisputed that vide scheme of amalgamation under sections 391 to 394 of the Companies Act, 1956, the assessee merged with Sapient Consulting Pvt. Ltd. vide order of the Delhi High Court, dated 12.10.2011 and 06.01.2012, with effect from the appointed date, viz. April 1, 2011. Thus, pursuant to the aforesaid order, the assessee company stood dissolved without the process of winding up on a copy of the order being filed with the Registrar of Companies. The Department has disputed that it was informed about the amalgamation/merger whereas it is the asseseee’s contention that the AO, in Circle 7(1), New Delhi, was intimated regarding the said merger vide letter dated 27.01.2012. Be as it may, the undisputed fact remains that Assessment Year 2011-12 the AO issued notice dated 17.09.2012 under section 143(2) of the Act on M/s Sapient Corporation Ltd. to initiate assessment proceedings for the assessment year 2011-12 which had ceased to exist in the eyes of law and was non-existent on the date of initiation of assessment proceedings. Thus, on the facts and the circumstances of the case, we have no hesitation in holding that the framing of assessment against a non- existing entity/person goes to the root of the matter is a jurisdictional defect as there cannot be any assessment against a 'dead person'. Accordingly, the impugned assessment is bad in law and is liable to be quashed being void ab initio. Respectfully, applying the ratio of the judgment of the Hon’ble Delhi High Court in the case of Spice Infotainment (Supra) as well as following the order of the Delhi Bench of the ITAT in assessee’s own case for assessment years 2009-10 and 2010-11 in 981/Del/2014 and 1306/Del/2015, we hold that the impugned assessment order in the name of the non-existent amalgamating coming suffers from an inherent jurisdictional defect and is not sustainable. We, therefore, quash the same. Accordingly, ground Nos. 2 and 2.1 stand allowed.

Assessment Year 2011-12 6.2 Since, we have quashed the assessment order being without valid jurisdiction, the other grounds raised by the assessee become academic and infructuous and we dismiss the same without any deliberations on merit.

7. In the final result, the appeal of the assessee stands allowed.

Order pronounced in the open court on 2nd May, 2017.