O R D E R

% 18.05.2021

1. These appeals, impugn the common order dated 6th July, 2018 of the Income Tax Appellate Tribunal (ITAT) (in ITA No.836/Del/2014 for the Assessment Year 2009-10 and in ITA No.554/Del/2015 for the Assessment Year 2010-11, allowing the appeals of the Respondent-Assessee against the separate orders under Section 143(3)/144C, of the Assessing Officer (AO), for the Assessment Years 2009-10 and 2010-11) holding, that “Since the final assessment in the instant case has been made on a non-existent company, therefore, following the decisions cited (supra) we hold that the assessment framed by the AO on a non-existent company is a nullity in the eyes of law and void and the provisions of section 292B cannot rescue the department. Therefore, the order is unsustainable and accordingly the same is quashed.”

2. Though these appeals came up first before this Court on 4th February, 2019, but notice thereof was ordered to be issued only on 14th November, 2019. The counsels were heard on 1st February, 2021 and 10th February, 2021, on, whether these appeals raise substantial questions of law and are to be admitted for hearing.

3. The ITAT, in the impugned order, has recorded the facts of ITA No.554/Del/2015 for the Assessment Year 2010-11 before it and has further recorded that the facts of ITA No.836/Del/2014 for the Assessment Year 2009-10 are identical. The said facts, as recorded, are (i) that the Respondent-Assessee company is primarily engaged in the business of importing, buying, selling and distributing wide range of mobile phones in India and of providing related post sale support services; (ii) on the Respondent-Assessee filing the return of income for the assessment years 2009-10 and 2010-11 (subject assessment years), since the Respondent- Assessee had undertaken international transaction with its Associated Enterprises (AEs), the AO referred the matter to the Transfer Pricing Officer (TPO) for determination of the Arm’s Length Price (ALP) of the international transaction entered into by the Respondent-Assessee with its AE; (iii) the TPO determined upward adjustment of Rs.56,30,78,638/-; (iv) the Respondent-Assessee approached Dispute Resolution Panel (DRP), which declined to interfere with the transfer pricing adjustment made by the AO; (v) the Respondent-Assessee thereafter approached the ITAT and the ITAT gave part relief to the Respondent-Assessee; (vi) both, the Respondent-Assessee as well as the Appellant-Revenue approached this Court by way of ITA No.638/Del/2015 and ITA No.614/Del/2015 respectively; (vii) this Court, vide order dated 28th January, 2016 restored the matter to the ITAT, with certain directions; and, (viii) the Respondent- Assessee, in said second round before the ITAT, made an application under Rule 11 of the ITAT Rules, 1963, seeking admission of the additional ground of appeal i.e. that “the assessment order passed under Section 143(3) read with section 144C of the Act is void ab initio, as the assessment was undertaken in the name of non-existent entity.”

4. ITAT, vide the impugned order, has held, that (i) since all material necessary for adjudication of the additional ground was available on record and no fresh examination of facts was required to be undertaken, the additional ground raised by the Respondent-Assessee was entitled to be admitted for adjudication; (ii) the Respondent-Assessee filed its return of income for the subject assessment years, in the name of Sony Ericsson Mobile Communications (India) Pvt. Ltd. (iii) the name of the Respondent- Assessee, w.e.f. 18th April, 2012, was changed to Sony Mobile Communications (India) Pvt. Ltd.; (iv) Sony Mobile Communications (India) Pvt. Ltd., w.e.f. 1st April, 2013, was merged with Sony India Pvt. Ltd.; (v) the Appellant-Revenue, vide letter dated 6th December, 2013 was informed of the merger; (vi) the factum of merger was also mentioned in another letter dated 17th February, 2014 of the Respondent-Assessee to the Appellant-Revenue