Income Tax Appellate Tribunal - Pune
Akzo Nobel India Ltd.,, Pune vs Deputy Commissioner Of Income-Tax,, on 5 June, 2018
आयकर अपील य अ
धकरण "ए"
यायपीठ पण
ु े म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, PUNE
सु ी सुषमा चावला, याियक सद य, ी, लेखा सद य,
सद य एवं ी अिनल चतुवद सद य के सम
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
आयकर अपील सं. / ITA No. 387/PUN/2016
नधा रण वष / Assessment Year : 2011-12
M/s. Akzo Nobel India Limited.
(as successor of Akzo Nobel
Chemicals (India) Limited)
Tellus Building, 2nd Floor,
209/1B/1A, Range Hills,
Pune-411 020
PAN : AADCA3941N
.......अपीलाथ / Appellant
बनाम / V/s.
The Deputy Commissioner of Income Tax,
Circle 1(1), Pune.
...... यथ / Respondent
Appellant by : Shri Manish Shah
Respondent by : Shri Rajeev Kumar.
सन
ु वाई क तार ख / घोषणा क तार ख /
Date of Hearing : 25.04.2018 Date of Pronouncement : 05.06.2018
आदे श / ORDER
PER SUSHMA CHOWLA, JM
The captioned appeal filed by the Assessee is against order of Deputy Commissioner of Income Tax, Circle-1(1), Pune, dated 28.12.2015 relating to assessment year 2011-12 passed under section 143(3) r.w.s.144C(13) of the Income- tax Act, 1961 (in short 'the Act') 2 ITA No.387/PUN/2016 A.Y.2011-12
2. The present appeal is filed after delay of 9 days. The assessee has filed an affidavit explaining reasons for delay due to change in the Tax Head/Manager. Considering the said facts and circumstances, we condone the delay in filing appeal late by 9 days and proceed to decide the present appeal after hearing both the parties.
3. The preliminary issue has been raised by assessee by way of additional ground of appeal and we first deal with the additional grounds of appeal, which reads as under :
"1. On the facts and circumstances of the case and in law, the Deputy Commissioner of Income Tax-1(1), Pune ("the AO") erred in passing the Assessment order u/s. 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 ("the Act") dated December 28, 2015 in the name of Akzo Nobel Chemicals (India) Limited which was not existence o n the date of passing the order.
2. He failed to appreciate and ought to have held that Akzo Nobel Chemicals (India) Limited had merged with Akzo Nobel India Limited vide Hon'ble Bomay High Court order dated May 11, 2012 i.e. Akzo Nobel Chemicals (India) Limited was not in existence on December 28, 2015 when he passed the said assessment order.
3. The Appellant prays that the aforesaid order be quashed as it is void ab-initio and invalid."
4. The Ld. AR for the assessee pointed out that assessment order has been passed under section 143(3) r.w.s. 144C(13) of the Act dated 28.12.2015 in the name of Akzo Nobel Chemicals (India) Limited which was not in existence on the date of passing the order. The second contention raised by assessee in this regard is that Akzo Nobel Chemicals (India) Limited had merged with Akzo Nobel India Limited vide Hon'ble Bombay High Court order dated 11th May, 2012 i.e. Akzo Nobel Chemicals (India) limited was not in existence on December 28, 2015 when he passed the said assessment order. The Ld. AR for the assessee further pointed out that the issue stands covered by the order of Tribunal in assessee's own case in the earlier year. He further pointed out that the decision of Hon'ble Supreme Court in the case of Sky Light Hospitality LLP Vs. Assistant Commissioner of Income Tax, reported in (2018) 92 3 ITA No.387/PUN/2016 A.Y.2011-12 taxmann.com 93(SC) is not to be applied as the facts of the said case are at variance. He referred to the decision of Hon'ble Apex Court wherein assessment notice issued in the wrong name given in the notice, was held to be merely a clerical error which could be corrected under section 292B of the Act. He further referred to the decision of Ahmedabad Bench of the Tribunal in the case of Shri Ishwarbhai Manganbhai Desai Vs. ITO, in ITA No.90/Ahd/2017 relating to assessment year 2008-09 order dated 23.04.2018 wherein reference was made to the said decision and the decision of Hon'ble High Court. In the said cases, Writ petition was dismissed and re-opening of the assessment in the old name was upheld. He further referred to the decision of Hon'ble High Court in the case of Sky Light Hospitality LLP Vs. ACIT (supra.) wherein Hon'ble High Court concurred with the other decisions and held that if assessment order was passed in the name of non existing person, then it would be illegal. The Hon'ble High Court in the case of Sky Light Hospitality LLP Vs. ACIT (supra) decided the issue in Para 17 to 21 of the judgment.
5. The ld. DR for the Revenue on the other hand pointed out that the orders of TPO and DRP were in the name of Akzo Nobel India Limited. He fairly admitted that the assessment order was passed by the Assessing Officer under section 143(3) r.w.s. 144C(13) of the Act in the name of M/s. Akzo Nobel Chemicals (India) Limited.
6. We have heard rival contentions and perusal the record. The first jurisdictional issue raised in the present appeal is, whether the assessment order passed under section 143(3) r.w.s. 144C(13) dated 28.12.2015 in the name of M/s. Akzo Nobel Chemical (India) Limited, which had merged with Akzo Nobel India Limited vide order dated 11th May, 2012 by Hon'ble Bombay High Court, was invalid order. Briefly in the facts of the case, the TPO has passed order under section 92CA(3) of the Act in the name of Akzo Nobel India Limited. However, the Assessing Officer passed draft assessment order under section 143(3) r.w.s.144C(1) of the Act dated 27.02.2015 in the 4 ITA No.387/PUN/2016 A.Y.2011-12 name of M/s. Akzo Nobel Chemicals (India) Limited. The DRP has passed directions under section 144C(5) of the Act dated 26.11.2015 in the name of Akzo Nobel India Limited and also mentioned "formerly known as Akzo Nobel Chemicals (India) Limited". The assessee also filed various communications with the Assessing Officer during assessment proceedings in the name of Akzo Nobel India Limited and intimation was separately filed before the Assessing Officer of amalgamation as per order of Hon'ble Bombay High Court dated 11th May, 2012 intimating 'appointment date' for the amalgamation as April 01, 2011, PAN Number of Akzo Nobel India Limited i.e. concern in which assessee had amalgamated. This communication was filed on 13th June, 2012 and is placed at page 497 & 498 of the paper book. The Assessing Officer passed final assessment order under section 143(3) r.w.s. 144C (13) of the Act in the name of M/s Akzo Nobel Chemicals (India) Limited and had not mentioned that the said concern is merged with any entity. Even, computation of income was made and notice of demand was also issued under section 156 of the Act in the name of M/s. Akzo Nobel India Limited.
7. The assessee in this regard has raised additional grounds of appeal agitating against assessment order passed in the name of M/s. Akzo Nobel Chemical (India) Limited being invalid, as the said entity did not exist on the date of passing assessment order. Additional grounds raised in appeal by assessee being legal, are admitted for adjudication, in view of ratio laid down by the Hon'ble Supreme Court in the case of NTPC Vs. CIT, 229 ITR 383 (SC). Similar issue of passing assessment order in the name of non existing entity in the case of assessee had arisen before Tribunal in ITA No.1225/PUN/2015 relating to assessment year 2010-11 dated 09.02.2018. The Tribunal vide the said order (supra.) held wherein entity merges with another entity then the assessment order passed against non existing entity cannot stand and the assessment order was cancelled by the Tribunal vide para 7 to 12 of the Tribunal's order and the same are being referred and not being reproduced for the sake of brevity. 5 ITA No.387/PUN/2016
A.Y.2011-12
8. Before parting, we may also refer to the decision of Hon'ble Supreme Court in the case of Sky Light Hospitality LLP Vs ACIT (supra.) wherein, SLP was dismissed holding that wrong name given in the notice was merely clerical error which could be corrected under section 292B of the Act. The Hon'ble High Court while deciding the said issue in the case of Sky Hospitality LLP Vs. ACIT (supra.) vide para 18 referring to the earlier decision of Delhi High Court in the case of Spice Infotainment Ltd Vs. CIT, 247 CTR 500 ( Delhi) has held that the concern Spice Corp. Ltd had filed return of income and had amalgamated with another company. After issuing notice under section 147/148 of the Act, in the name of Spice Corp. Limited, the Assessing Officer was informed about amalgamation but the assessment order was passed in the name of amalgamated company and not in the name of amalgamating company. In such a situation, it was held that assessment order was not valid. The Hon'ble High Court in Sky Hospitality LLP Vs. ACIT (supra.) after referring to the said decision in Para 18 observed that such was not a case wherein notice under section 147/148 of the Act was declared to be void and invalid, but a case in which assessment order was passed in the name of and against juristic person, which has ceased to exist and stood dissolved as per provisions of the Companies Act. The order was in the name of non existing person and hence, void and illegal. After noting other decisions on present issue, the Hon'ble High Court dismissed the writ petition filed by assessee challenging notice issued under section 147/148 of the Act in the name of amalgamated company, being curable. The said stand taken by the Hon'ble High Court has been upheld by the Hon'ble Supreme Court. However, no stand was taken in respect of the assessment order passed in the name of amalgamated company and not amalgamating company.
9. In view of the above said facts and circumstances of the present case before us where final assessment order under section 143(3) r.w.s.144C(13) of the Act, demand notice under section 156 of the Act and even computation of income were made in the 6 ITA No.387/PUN/2016 A.Y.2011-12 name of amalgamated company i.e. Akzo Nobel Chemicals (India) Limited ; despite the facts, TPO/DRP passed order/ directions in the name of amalgamating company i.e. Akzo Nobel India Limited ; assessment order passed by the Assessing Officer is invalid being issued in the name of non existing entity, hence is cancelled. Thus, additional grounds raised by assessee are allowed. Since the assessment order is held to be invalid, the issue raised on merit becomes academic. Accordingly, grounds raised by assessee are allowed.
10. In the result, appeal of the assessee is allowed.
Order pronounced on this 05th day of June, 2018.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
लेखा सद य/ACCOUNTANT MEMBER या यक सद य/JUDICIAL MEMBER
पुणे / Pune; दनांक / Dated : 05th June, 2018
SB
आदे श क त"ल#प अ$े#षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT (Appeals)-13, Pune.
4. The CIT-IT/TP, Pune.
5. "वभागीय त न%ध, आयकर अपील य अ%धकरण, "ए" ब)च,
पण
ु े / DR, ITAT, "A" Bench, Pune.
6. गाड, फ़ाइल / Guard File.
// True Copy //
आदे शानुसार / BY ORDER,
नजी स%चव /Private Secretary
आयकर अपील य अ%धकरण, पण
ु े / ITAT, Pune.