The Commissioner of Income-tax Central Circle / The Assistant Commissioner of Income-tax Circle - 12(2) v. Intel Technology India Pvt. Ltd
[Citation -2015-LL-0303-44]

Citation 2015-LL-0303-44
Appellant Name The Commissioner of Income-tax Central Circle / The Assistant Commissioner of Income-tax Circle - 12(2)
Respondent Name Intel Technology India Pvt. Ltd.
Court HIGH COURT OF KARNATAKA
Relevant Act Income-tax
Date of Order 03/03/2015
Judgment View Judgment
Keyword Tags procedural irregularity
Bot Summary: For the relevant assessment year 2003-04, the company SSS Limited filed its return on 28.11.2003. The assessment order was passed on 27.03.2006. Challenging the said assessment order, the company SSS Limited filed an appeal before the Commissioner of Income Tax which was decided by the Commissioner vide order dated 31.1.2008 and partial relief was given to the assessee- SSS Limited. 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. The tribunal had rejected the claim of the department on the ground that the assessment proceedings against SSS Limited 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 6 continue against the said company even after the amalgamation, especially when the successor company M/s Intel Technology India Pvt. Ltd. had participated in the proceedings. 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 7 INFORTAINMENT LTD. vs COMMISSIONER OF INCOME TAX 2012) 247 CTR 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 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 a jurisdictional defect and as there cannot be any assessment against the dead person. We may 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.


1 IN HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS 3rd DAY OF MARCH 2015 PRESENT HON BLE MR.JUSTICE VINEET SARAN AND HON BLE MRS.JUSTICE S SUJATHA ITA NO.499/2009 c/w ITA No.500/2009 BETWEEN: 1. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE C R BUILDING QUEENS ROAD BANGALORE. 2. ASSISTANT COMISSIONER OF INCOME-TAX CIRCLE 12(2) C R BUILDING QUEENS ROAD ANGALORE. .. COMMON APPELLANTS (BY SRI K V ARAVIND, ADV.) AND: M/S INTEL TECHNOLOGY INDIA PVT.LTD. (SUCCESSOR IN INTEREST TO M/S SOFTWARE & SILICON SYSTEMS INDIA PVT. LTD.) SRR2, SURVEY # 23-56P DEVARABEESANAHALLI OUTER RING ROAD 2 VARTHUR HOBLI BANGALORE 37. ..COMMON RESPONDENT (BY SRI T SURYANARAYANA, ADV. FOR M/S KING & PARTRIDGE) ITA No.499/09 IS FILED UNDER SECTION 260- OF I.T.ACT, 1961 ARISING OUT OF ORDER DATED 17.04.2009 PASSED IN ITA NO.547/BNG/2008 FOR ASSESSMENT YEAR 2003-2004 PRAYING TO ALLOW APPEAL AND SET ASIDE ORDER PASSED BY ITAT BANGALORE IN ITA NO.547/BNG/2008 DATED 17.04.2009 CONFIRMING ORDER OF APPELLATE COMMISSIONER AND CONFIRM ORDER PASSED BY ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 12(2), BANGALORE IN INTEREST OF JUSTICE AND EQUITY. ITA No.500/2009 IS FILED UNDER SECTION 260-A OF I.T.ACT, 1961 ARISING OUT OF ORDER DATD 17.04.2009 PASSED IN ITA NO.547/BNG/2004 FOR ASSESSMENT YEAR 2003-2004 PRAYING TO ALLOW APPEAL AND SET ASIDE ORDER PASSED BY ITAT BANGALORE IN ITA NO.547/BNG/2008 DATED 17.04.2009 CONFIRMING ORDER OF APPELLATE COMMISSIONER AND CONFIRM ORDER PASSED BY ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 12(2), BANGALORE IN INTEREST OF JUSTICE AND EQUITY. THESE APPEALS COMING ON FOR HEARING THIS DAY, VINEET SARAN J., DELIVERED FOLLOWING: JUDGMENT present appeals relate to assessment year 2003-04 in case of assessee M/s 3 Software & Silicon Systems India Pvt. Ltd (For short SSS Limited ). said company was amalgamated with respondent company M/s Intel Technology India Pvt. Ltd. (successor company). amalgamation order was passed by High Court of Karnataka on 28.5.2004 and was to be given effect from 1.4.2004. 2. For relevant assessment year 2003-04, company SSS Limited filed its return on 28.11.2003. As per statement of learned counsel for appellant, assessing authority thereafter issued notice under Section 143(2) of Income Tax Act, 1961 on 14.10.2004. assessment order was passed on 27.03.2006. Challenging said assessment order, company SSS Limited filed appeal before Commissioner of Income Tax (Appeal) which was decided by Commissioner vide order dated 31.1.2008 and partial relief was given to assessee- SSS Limited. respondent company, which was successor company of SSS Limited, filed appeal before Tribunal and so 4 did department. Both appeals were heard together. By order dated 17.4.2009, Tribunal allowed appeal of respondent company and held that assessment order passed by assessing officer was null and void and without jurisdiction and thus, quashed same. In view of fact that assessment order itself was quashed, appeal filed by department, which was on merits, was rendered infructuous. Challenging said order of Tribunal, these appeals have been filed by revenue department. 3. We have heard Sri K V Aravind, learned counsel for appellant as well as Sri T.Suryanarayana learned counsel for respondent and perused records. 4. This appeal was admitted by order dated 21.7.2010 on substantial questions of law as had been framed in memo which reads as under: (1) Whether Tribunal was correct in holding that order passed by Assessing Officer on M/s Software & Silicon Systems India Pvt. 5 Ltd., after being intimated about merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against said company and null and void? (2) Whether Tribunal was correct in holding that provisions of section 292B of Act will not make assessment valid as defect/omission to incorporate name of M/s Intel Technology India Pvt. Ltd., in assessment order as same is not in substance and effect in confirmative with or according to intend and purpose of this Act? (3) Whether Tribunal has to examine matter on merits and record finding on controversy raised before it both by revenue as well as assessee in their separate appeals? 5. tribunal had rejected claim of department on ground that assessment proceedings against SSS Limited (which was non- existent on date of passing of assessment order) cannot be held to be valid proceedings, learned counsel for appellant has submitted that return of income had been filed by assessee-SSS Limited much prior to amalgamation order dated 1.4.2004 and as such, proceedings would 6 continue against said company even after amalgamation, especially when successor company M/s Intel Technology India Pvt. Ltd. had participated in proceedings. Learned counsel for appellant further submits that department would be entitled to benefit of Section 292(B) of Income Tax Act. 6. On other hand, learned counsel for respondent has submitted that any proceeding against non-existing company would be null and void, especially after respondent/company (which had succeeded M/s SSS Limited) had given notice of amalgamation to department on 29.6.2004. It is thus submitted that after issuance of demand notice, it was for department to substitute respondent company in proceedings for assessment and by not having done so, entire assessment proceedings would be null and void. In support of his submission, learned counsel for respondent has placed reliance on Division Bench decision of Delhi High Court rendered in SPICE 7 INFORTAINMENT LTD. vs COMMISSIONER OF INCOME TAX ((2012) 247 CTR (Del) 500). It is contended that facts of present case are similar, if not identical, to facts in case of Spice Infotainment Limited (supra) wherein Delhi High Court has, after considering various provisions of Income Tax Act as well as certain decisions of Apex Court and other High Courts, clearly held that framing of assessment against non-existing entity/person goes to root of matter which is not procedural irregularity, but, jurisdictional defect and as there cannot be any assessment against dead person. 7. In present case also, proceedings had been initiated against non-existing company/SSS Limited even after amalgamation of said company with M/s Intel Technology India Pvt. Ltd.. We do not see any good ground to differ with said judgment of Delhi High Court. 8 8. Accordingly, for reasons given in judgment of Delhi High Court in case of Spice Infotainment Ltd. (supra), these appeals are dismissed and we decide substantial questions of law in favour of assessee and against revenue. 9. We may, however, mention that on basis of returns filed by SSS Limited for assessment year 2003-04, department may proceed for making assessment in accordance with law and in terms of provisions of Income Tax Act, 1961. These appeals stand disposed off in aforesaid terms. Sd/- JUDGE Sd/- JUDGE brn Commissioner of Income-tax Central Circle / Assistant Commissioner of Income-tax Circle - 12(2) v. Intel Technology India Pvt. Ltd
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