Delhi High Court - Orders
Commissioner Of Income Tax ... vs John Wiley And Sons Inc on 21 September, 2023
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~83
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ITA 539/2023
COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION)-
2 ..... Appellant
Through: Mr Sanjay Kumar, Sr. Standing Counsel
with Ms Easha Kadian and Ms. Hemlata
Rawat, Standing Counsels.
versus
JOHN WILEY AND SONS INC. ..... Respondent
Through: Mr Vishal Kalra, Advocate.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE GIRISH KATHPALIA
ORDER
% 21.09.2023 [Physical Hearing/Hybrid Hearing (as per request)] CM APPL. 49003/2023
1. Allowed, subject to just exceptions.
CM APPL. 49002/2023 [Application filed on behalf of the appellant seeking condonation of delay of 58 days in filing the appeal]
2. This is an application filed by the appellant/revenue seeking condonation of delay in filing the appeal.
3. According to Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/ revenue, there is a delay of 58 days in filing the appeal.
4. Mr Vishal Kalra, counsel for the respondent/assessee, says that he would have no objection if the delay is condoned.
ITA 539/2023 page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 21:35:39 4.1 It is ordered accordingly.
5. The application is disposed of, in the aforesaid terms.
ITA 539/20236. This appeal concerns Assessment Year (AY) 2019-20.
7. Via the instant appeal, the appellant/revenue seeks to assail the order dated 20.02.2023, passed by the Income Tax Appellate Tribunal [in short, "Tribunal"].
8. The Tribunal has ruled in favour of the respondent/assessee, which has resulted in the assessment order being set aside. The basis for reaching this conclusion is indicated in paragraph 10 of the impugned order which reads as under:
"10. Then it can be appreciated that vide letter dated 18.12.2020 available at page No. 1 of the paper book the Id AO was specifically informed of the fact of merger of the assessee M/s. Wiley Subscription Services Inc with appellant M/s. John Wiley & Sons Inc. Further, by letter dated 23.03.2021 the Id AO was specifically informed, upon his own questionnaire, about the date of merger and the fact that the successor company John Wiley & Sons Inc already holds PAN No. AACCJ5564B. Inspite of the aforesaid facts being in the knowledge of the AO and the specific directions of the Id DRP as reproduced above, the AO preferred to pass the assessment order upon the predecessor of appellant which longer existed and upon the PAN account of the predecessor of the appellant. Catena of judgments cited by the Id AR firmly hold the assessment orders passed on non-existing entities are void."
8.1 In support of this conclusion, the Tribunal has relied upon the judgment of the Supreme Court rendered in Pr. CIT v. Maruti Suzuki India Ltd., (2019) 416 ITR 613 (SC).
ITA 539/2023 page 2 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 21:35:39
9. Furthermore, the Tribunal has also noted in paragraph 11 of the impugned order that the Assessing Officer (AO), while passing the assessment order, failed to adhere to the direction issued by the Dispute Resolution Panel (DRP).
10. Thus, a perusal of the record shows that despite the AO being informed by the respondent/assessee on 18.12.2020 and 23.03.2021 that a merger had taken place between Wiley Subscription Services Inc and John Wiley & Sons Inc, he passed the final assessment order on 20.06.2022 in the name of the predecessor-in-interest.
11. We may note that the final assessment order is addressed to "Wiley Subscription Services Inc (now known as John Wiley & Sons Inc.)".
12. In contradistinction, the DRP has passed the order in the name of John Wiley & Sons Inc. (successor of Wiley Subscription Services Inc which merged into John Wiley & Sons Inc.).
13. Mr Kalra is right in drawing our attention to paragraph 2.1 in DRP's order dated 29.04.2022, wherein the objection raised against the draft assessment order, concerning the same issue was dismissed by the DRP, with a direction to the AO to pass the assessment order as per the name given in the DRP's order.
13.1 Having regard to this direction, Mr Kalra says that the AO could not have veered away from the mandate given to him by the DRP. In support of this plea Mr Kalra relies upon Section 144C(13) of the Income Tax Act, 961 [in short, "the Act"].
14. There is, however, one aspect which Mr Kalra needs to return with instructions on, which is as to the date when the amalgamation scheme was ITA 539/2023 page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 21:35:39 sanctioned.
14.1 Mr Kalra says that he will return with instructions on that score.
15. Furthermore, Mr Kalra will also indicate the date from which the amalgamation scheme came into effect. This is relevant as Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, has advanced an argument that the return of income was filed on 28.11.2019 in the name of predecessor-in-interest i.e., Wiley Subscription Services Inc.
16. Whether anything will turn on this aspect or not will be examined on the next date of hearing.
17. List the matter on 27.09.2023.
RAJIV SHAKDHER, J
GIRISH KATHPALIA, J
SEPTEMBER 21, 2023 / tr
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ITA 539/2023 page 4 of 4
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 21:35:39