Genpact Infrastructure Vs. DCIT (ITAT Delhi)
In the present assessment was framed by the AO on the non-existent amalgamated company, not on the amalgamating company, therefore, the assessment framed was void ab initio and the same was rightly quashed by the ld. CIT(A). Since, we have quashed the assessment framed by the AO therefore no separate finding is being given on the other issues raised in the Departmental appeal.
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
This is an appeal by the assessee against the order dated 16.01.2013 passed by the AO u/s 143(3) r.w.s. 144C(5) of the Income Tax Act, 1961 (hereinafter referred to as the Act).
2. The assessee also requested for admission of the additional ground under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 stating there as under:
“The Appellant requests to allow raising of the following ground of appeal in addition to those filed for adjudication before the Hon’ble Income Tax Appellate Tribunal (“Hon’ble Bench”):
1. That on the facts and circumstances of the case and in law, the orders passed by the Assessing Officer (‘AO’) / Dispute Resolution Panel (‘DRP’) / Transfer Pricing Officer (‘TPO’) are bad in law and void ab initio as the same have been passed on a non-existent entity, namely Genpact Infrastructure (Bhopal) Pvt. Ltd.
The brief facts giving rise to the aforesaid ground of appeal are stated here under:
The Appellant is engaged in the business of providing Information Technology enabled Services (‘ITeS’) / Business Process Outsourcing (‘BPO’) services, including finance and accounting, collections, insurance, customer fulfillment services etc. to its associated enterprise.
It is submitted that the erstwhile Genpact Infrastructure (Bhopal) Pvt. Ltd. amalgamated with Genpact India with effect from April 1, 2010 vide order of the Hon’ble Delhi High Court dated November 19, 2010 (Copy of the order attached as Annexure 1).
Further, the AO was informed about the scheme of amalgamation vide letter dated January 24, 2011 (Copy attached as Annexure 2). However, the lower
authorities namely the AO / DRP / TPO, have framed / passed orders on the erstwhile entity i.e. Genpact Infrastructure (Bhopal) Pvt. Ltd. The orders, thus, passed by the lower authorities are bad in law and void ab initio as the same have been passed on a non-existent entity.
In this regard, it is respectfully submitted that the issue involved in the said additional ground of appeal stands covered in favor of the Appellant by the jurisdictions! High Court’s decision in the case of Spice Entertainment Limited vs Commissioner of Service Tax (ITA 475, 476 of 2011) (Delhi) which has now been affirmed by the Hon ‘ble Supreme Court vide order dated November 2, 2017 in CA No. 285 of 2014.
Reliance is also placed upon the following judicial precedents:
