Successor Of Accenture Services Pvt. Ltd.) Plant v. The Deputy Commissioner Of Income Tax, Corporate Circle 3(2) Chennai 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2020 CORAM THE HON'BLE DR.JUSTICE VINEET KOTHARIANDTHE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY T.C.A.No.380 of 2017 Accenture Solutions Pvt. Ltd., (Successor of Accenture Services Pvt. Ltd.)Plant 3, Godrej & Boyce Complex,LBS Marg, Vikroli (W)Mumbai 400 079 ...Appellant/Appellantvs. The Deputy Commissioner of Income Tax,Corporate Circle 3(2)Chennai 600 034..Respondent/Respondent Prayer ::- Appeal filed against the order of the Income TaxAppellate Tribunal, D Bench, Chennai dated 14.09.2016 in ITANo.1129/Mds/2015. Against the order of Deputy Commissioner ofIncome Tax, Corporate Circle 3(2), Chennai made inPAN.No.AABCG3742P dated 20.02.2015 for the Assessment year 2010-2011 and against the Joint Commissioner of Income Tax Transferpricing officer-III Chennai dated 31/12/2013 in F.No.Z-301/TPO-III/AY 2010-2011 Assessment year 2010-2011. For appellant: Mr.Nishat Thakkar for Mr.R.Venkatnarayanan for M/s.Subbaraaiyar Padmanabhan For respondent : Mr.M.Swaminathan, Ms.Pushpa ORDER The Court was held by Video Conference, as per theResolution of the Full Court dated 3 July 2020, by Judges attheir respective residence and the counsel, staff of the Courtappearing from their respective residences. https://hcservices.ecourts.gov.in/hcservices/ 2. Heard Mr.Nishat Thakkar, learned counsel for theappellant and Mr.Swaminathan, learned counsel for theDepartment. 3. The only grievance made before us in the present appealfiled by the Assessee is that the learned Tribunal by its orderdated 14 September 2016 has erred in rejecting the appeal filedby the Assessee on the technical ground that the memo of appealwas filed in the name of the company M/s.Zenta KnowledgeServices Private Limited which lost its identity after itsmerger with M/s.Accenture Services Pvt. Ltd. with effect from 1April 2012 under a scheme duly sanctioned by the High Courtunder the provisions of the Companies Act. It is also brought toour notice that M/s.Accenture Service Pvt. Ltd. has subsequentlymerged with M/s.Accenture Solutions Pvt. Ltd., the presentappellant before us. 4. The operative part of the order of the learned Tribunalin paragraph nos. 3 and 4 are quoted below for ready reference. “3. We heard Smt. Jayanthi Krishnan,the learned department representative also.When the assessee claims that M/s.ZentaKnowledge Services Private Limited was notin existence on the date of the order passedby the AO,TPO and DRP,it is not known howthe assessee could file an appeal in thename of the non-existent company. ThisTribunal is of the considered opinion thatthe order passed by the AO against the non-existent company on the date of the ordercannot stand in the eye of law. Similarly anappeal filed by the non-existent companyalso cannot tie treated as a valid appeal.Moreover, the application said to be filedby the assessee to substitute theamalgamating company namely M/s.AccentureServices Pvt. Ltd. cannot be entertained atthis stage. In other words, when an appealis filed in the name of a non-existentcompany, there cannot be any substitutionduring the pendency of the proceedings. Inother words, the appellate proceedingsinitiated by a nonexistent company beforethis Tribunal cannot survive at all.Therefore, there is no question ofsubstitution of any existent company in theplace of a non-existent company. 4. In view of the above, both theappeals filed by the assessee as well as bythe department are dismissed and also crossobjection filed by the assessee is dismissed. 5. The learned counsel for the department, Mr.M.Swaminathan,submitted that the appeal filed by the Department also deservesto be heard by the Tribunal on merits, in case the matter isremanded to the Tribunal for deciding the appeal on merits. 4. In view of the above, both theappeals filed by the assessee as well as bythe department are dismissed and also crossobjection filed by the assessee is dismissed. 5. The learned counsel for the department, Mr.M.Swaminathan,submitted that the appeal filed by the Department also deservesto be heard by the Tribunal on merits, in case the matter isremanded to the Tribunal for deciding the appeal on merits. 6. On perusal of records, we noticed that by virtue ofscheme of amalgamation filed before the High Court, M/s. ZentaKnowledge Services Private Limited merged with M/s.AccentureServices Private Limited. By virtue of the said merger, all theexisting and the future litigation of the transferor companywill be transferred and continued in the name of transfereecompany viz., M/s.Accenture Services Private Limited with effectfrom 1[st] April 2012. It has also brought to our knowledge thatthis M/s. Accenture Services Private Limited has subsequentlymerged with the M/s. Accenture Solutions Private Limited. Byvirtue of this merger, all the litigations pursued against or byboth M/s. Zenta Knowledge Services Private Limited andM/s.Accenture Services Private Limited shall automatically betransferred and will be continued in the name of transfereecompany viz., M/s. Accenture Solutions Private Limited. Whensuch being the position, without considering the order of theHigh Court in the matter of amalgamation and the automatictransfer of litigations of transferor companies into transfereecompany, the Tribunal has simply rejected the appeal, on theground that the appeal was filed in the name of non-existingperson. We do not agree with the said finding of the Tribunal asthe same is not legally sustainable. 7.Therefore, we are inclined to set aside the order of theTribunal dated 14 September 2016, with request to the Tribunalto decide the appeals of the assessee (M/s.Accenture SolutionsPvt. Ltd.,) and the Revenue and the cross appeal of theassessee, on merits and in accordance with law. The contentionsof the parties are left open before the Tribunal and once theappeals are decided by the Tribunal on merits, both the partieswill be free to raise their substantial questions of law againunder Section 260A of the Act, if consider appropriate. 8. With these observations, the present appeal is disposedof. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrarkpl/tarTo1.The Income Tax Appellate Tribunal, D Bench, Chennai.2.The Deputy Commissioner of Income Tax,Company Circle-III(3)2 Chennai3.The Joint Commissioner of Income TaxTransfer pricing officer-III Chennai+1 cc to M/s.Subbaraya Aiyar Advocate sr25672T.C.A.No.380 of 2017aa29/09/2020