International Taxation—Assessment Whether Assessment Order of a NonExisting Assessee is a Nullity?

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The Tax Publishers International Taxation--Assessment Whether Assessment Order of a Non-Existing Assessee is a Nullity? Akhilesh Kumar Sah While passing an assessment order, AO should check about the status, existence, PAN and address of the assessee. It is being continuously held by the Supreme Court that an assessment order passed in the name of a non-existing assessee, cannot sustain in the eye of law. 1. Introduction Recently, in Boeing India Pvt. Ltd. (successor to Boeing International Corp India Pvt. Ltd.) v. ACIT [ITA No.828/Del/2021 (AY 2016-17)] decided by ITAT Delhi on 27-3-2024, a case came before Delhi ITAT in respect of assessment of a non-existing company. 2. Facts of the above mentioned case in brief The brief facts of the case were that the assessee earlier known as Boeing International Corporation India Ltd., being a resident corporate entity, filed its return of income under section 139(1) of the Income Tax Act, 1961 (for short, 'the Act') declaring income of Rs.60,55,17,000. Subsequent to filing of return of income, Boeing International Corporation India Ltd. got merged with Boeing India Pvt. Ltd. as per the scheme of merger from the appointed date. The amalgamation of Boeing International Corporation India Ltd. with Boeing India Pvt. Ltd. was duly brought to the notice of AO vide letter with supporting evidences. In the year under consideration, the assessee had entered into international transactions with its Associated Enterprises (for short, 'AEs'), AO made a reference to the Transfer Pricing Officer (for short, 'TPO') to determine the Arm's Length Price (for short, 'ALP') of the international transactions. TPO suggested adjustment and sought enhancement of income to that extent. In terms with the order of the TPO, passed under section 92C(3) in the name of Boeing India Pvt. Ltd. AO framed the draft assessment order under section 143(3) r/w section 144C(3) in the name of Boeing International Corp. India Ltd. Against the draft assessment order, the assessee raised objections before DRP. DRP sustained the adjustment proposed by TPO. In terms with the directions of DRP, AO passed the final assessment order, which was under challenge by assessee in appeal before ITAT. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers

International Taxation--Assessment

Whether Assessment Order of a Non-Existing Assessee is a Nullity?

Akhilesh Kumar Sah

While passing an assessment order, AO should check about the status, existence, PAN and address of the assessee. It is being continuously held by the Supreme Court that an assessment order passed in the name of a non-existing assessee, cannot sustain in the eye of law.

1. Introduction

Recently, in Boeing India Pvt. Ltd. (successor to Boeing International Corp India Pvt. Ltd.) v. ACIT [ITA No.828/Del/2021 (AY 2016-17)] decided by ITAT Delhi on 27-3-2024, a case came before Delhi ITAT in respect of assessment of a non-existing company.

2. Facts of the above mentioned case in brief

The brief facts of the case were that the assessee earlier known as Boeing International Corporation India Ltd., being a resident corporate entity, filed its return of income under section 139(1) of the Income Tax Act, 1961 (for short, 'the Act') declaring income of Rs.60,55,17,000. Subsequent to filing of return of income, Boeing International Corporation India Ltd. got merged with Boeing India Pvt. Ltd. as per the scheme of merger from the appointed date. The amalgamation of Boeing International Corporation India Ltd. with Boeing India Pvt. Ltd. was duly brought to the notice of AO vide letter with supporting evidences. In the year under consideration, the assessee had entered into international transactions with its Associated Enterprises (for short, 'AEs'), AO made a reference to the Transfer Pricing Officer (for short, 'TPO') to determine the Arm's Length Price (for short, 'ALP') of the international transactions. TPO suggested adjustment and sought enhancement of income to that extent. In terms with the order of the TPO, passed under section 92C(3) in the name of Boeing India Pvt. Ltd. AO framed the draft assessment order under section 143(3) r/w section 144C(3) in the name of Boeing International Corp. India Ltd. Against the draft assessment order, the assessee raised objections before DRP. DRP sustained the adjustment proposed by TPO. In terms with the directions of DRP, AO passed the final assessment order, which was under challenge by assessee in appeal before ITAT.