High Court Of Karnataka
CIT vs. Intel Technology India (P) Ltd
Section 260, 260A, 143(2), 292B
Asst. Year 2003-2004
Vineet Saran & S Sujatha, JJ
ITA No. 499, 500/2009
3rd March, 2015
K V Aravind, Adv. for the Appellant: T Suryanarayana, Adv. for the Respondent. VINEET SARAN, J:
1. The present appeals relate to the assessment year 2003-04 in the case of the assessee â M/s Software & Silicon Systems India Pvt. Ltd (For short âSSS Limitedâ). The said company was amalgamated with the respondent company M/s Intel Technology India Pvt. Ltd. (Successor Company). The amalgamation order was passed by the High Court of Karnataka on 28.5.2004 and was to be given effect from 1.4.2004.
2. For the relevant assessment year 2003-04, the company â SSS Limited filed its return on 28.11.2003. As per the statement of learned counsel for the appellant, the assessing authority thereafter issued a notice under Section 143(2) of the Income Tax Act, 1961 on 14.10.2004. The assessment order was passed on 27.03.2006. Challenging the said assessment order, the company â SSS Limited filed an appeal before the Commissioner of Income Tax (Appeal) which was decided by the Commissioner vide order dated 31.1.2008 and partial relief was given to the assessee-SSS Limited. The respondent â company, which was the successor company of SSS Limited, filed an appeal before the Tribunal and so did the department. Both the appeals were heard together. By order dated 17.4.2009, the Tribunal allowed the appeal of the respondent â company and held that the assessment order passed by the assessing officer was null and void and without jurisdiction and thus, quashed the same. In view of the fact that the assessment order itself was quashed, the appeal filed by the department, which was on merits, was rendered infructuous. Challenging the said order of the Tribunal, these appeals have been filed by the revenue department.
3. We have heard Sri K V Aravind, learned counsel for the appellant as well as Sri T.Suryanarayana â learned counsel for the respondent and perused the records.
4. This appeal was admitted by order dated 21.7.2010 on the substantial questions of law as had been framed in the memo which reads as under:
(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. 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 a finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals?
5. The tribunal had rejected the claim of the department on the ground that the assessment proceedings against SSS Limited (which was nonexistent on the date of passing of the assessment order) cannot be held to be valid proceedings, learned counsel for the appellant has submitted that the return of income had been filed by the assessee-SSS Limited much prior to the amalgamation order dated 1.4.2004 and as such, the proceedings would continue against the said company even after the amalgamation, especially when the successor company â M/s Intel Technology India Pvt. Ltd. had participated in the proceedings. Learned counsel for the appellant further submits that the department would be entitled to the benefit of Section 292(B) of the Income Tax Act.
6. On the other hand, learned counsel for the respondent has submitted that any proceeding against a non-existing company would be null and void, especially after the respondent/company (which had succeeded M/s SSS Limited) had given notice of amalgamation to the department on 29.6.2004. It is thus submitted that after the issuance of the demand notice, it was for the department to substitute the respondent company in the proceedings for assessment and by not having done so, the entire assessment proceedings would be null and void. In support of his submission, learned counsel for the respondent has placed reliance on a Division Bench decision of the Delhi High Court rendered in SPICE INFORTAINMENT LTD. vs COMMISSIONER OF INCOME TAX ((2012) 247 CTR (Del) 500). It is contended that the facts of the present case are similar, if not identical, to the facts in the case of Spice Infotainment Limited (supra) wherein the Delhi High Court has, after considering the various provisions of the Income Tax Act as well as certain decisions of the Apex Court and other High Courts, clearly held that the framing of assessment against the non-existing entity/person goes to the root of the matter which is not a procedural irregularity, but, a jurisdictional defect and as there cannot be any assessment against the dead person.
7. In the present case also, the proceedings had been initiated against a non-existing company/SSS Limited even after the amalgamation of the said company with M/s Intel Technology India Pvt. Ltd.. We do not see any good ground to differ with the said judgment of the Delhi High Court.
8. Accordingly, for the reasons given in the judgment of the Delhi High Court in the case of Spice Infotainment Ltd. (supra), these appeals are dismissed and we decide the substantial questions of law in favour of the assessee and against the revenue.
9. We may, however, mention that on the basis of the returns filed by SSS Limited for the assessment year 2003-04, the department may proceed for making assessment in accordance with law and in terms of the provisions of the Income Tax Act, 1961.
10. These appeals stand disposed off in the aforesaid terms.
[Citation: 380 ITR 272]