Teleperformance Global Services Private Limited vs. ACIT (Bombay High Court)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Teleperformance Towers Mindspace, )
Goregaon (West), Mumbai 400 104, )
Maharashtra, India … Petitioner
Vs.
1. Assistant Commissioner of Income-tax )
Central Circle 25(1), New Delhi, )
C R Building, ITO, I P Estate, 104B, )
Indrapastha Marg, New Delhi 110 002 )
2. Principal Commissioner of Income-tax 25(1),
C R Building, ITO, I P Estate, 104B, )
Indrapastha Marg, New Delhi 110 002 )
3. Assistant Commissioner of Income-tax-12 )
Central Circle 12(2)(2), Mumbai, Aaykar )
Bhavan, Maharishi Karve Road, )
Mumbai 400 020, Maharashtra )
4. Principal Commissioner of Income-tax-12 )
Room No. 127, 1st Floor, Aaykar )
Bhavan, Maharishi Karve Road, )
Mumbai 400 020, Maharashtra )
5. Union of India, Department of Legal Affairs
Ministry of Law and Justice, Government )
of India, 4th Floor, A-Wing, Shastri Bhavan )
New Delhi – 110 001 … Respondents
***
Mr. Jehangir D. Mistri, Sr. Counsel a/w Madhur Agarwal and Atul
Jasani, for the Petitioner.
Mr. Sham Walve, for the Respondents.
***
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WRIT PETITION No. 950 OF 2020
Teleperformance Global Services )
Private Limited, Plot CST No. 1406-A/28 )
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CORAM : SUNIL P. DESHMUKH, & J.
RESERVED FOR JUDGMENT : MARCH 17, 2021
JUDGMENT PRONOUNCED ON : APRIL 9, 2021
JUDGMENT [PER : SUNIL P. DESHMUKH, J.]
1. Rule. Rule made returnable forthwith. Heard learned
Senior Advocate Mr. J. D Mistri for the petitioner and Mr. Sham Walve
advocate for respondent-State finally by consent.
2. The petition questions propriety, legality and validity of
notice dated 30th March, 2019 issued by respondent No. 1 – the
Assistant Commissioner of Income Tax, Delhi pursuant to section 148
of the Income Tax Act, 1961 (for short “the Act”) for the assessment
year 2012-13; and order dated 31st December, 2019 passed under
section 144 read with section 147 of the Act in the name of M/s.
TecnovateEsolutions Private Limited.
3. Mr. J. D. Mistri, learned senior advocate for the petitioner
draws our attention to the factual events that, M/s. Tecnovate
Esolutions Pvt. Ltd. (for short “TSPL”) was a registered company
engaged in business of providing back office support services/ remote
data entry services for customers in and outside India. Under order
dated 11th February, 2011, a scheme of amalgamation of aforesaid
company with M/s. Intelnet Global Services Pvt. Ltd. , was approved
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DESHMUKH
ABHAY AHUJA, JJ.
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with effect from 1st April, 2010 and since then the aforesaid TSPL
ceased to exist. Subsequently, M/s. Intelenet Global Services Pvt. Ltd.
amalgamated with M/s. Serco BPO Pvt. Ltd. Thereafter there had been
change in the name with effect from 11th January, 2016 from M/s.
Serco BPO Pvt. Ltd to M/s. Intelnet Global Services Pvt. Ltd. There
had been a further change in the name from M/s. Intelenet Global
Services Pvt. Ltd to Teleperformance Global Services Pvt. Ltd.
(TGSPL) with effect from 12th February, 2019. He submits that as
such, petitioner is successor of M/s. TecnovateEsolutions Pvt. Ltd.
4. It has been referred to that post amalgamation, for
assessment year 2012-13 M/s. Intelenet Global Services Pvt. Ltd. filed
its income tax returns on 30th November, 2012 and revised its return on
31st March, 2014 for the period 1st April, 2011 to 6th July, 2011. Its
assessment was completed under ection 143(3) of the Act vide order
dated 23rd September, 2016. M/s. Intelenet Global Services Pvt. Ltd.
had filed returns for the period from 7.07.2011 to 31.03.2012 on 30th
November, 2012 and revised returns on 31st March, 2014. Its
assessment had been completed under Section 143(3) of the Act under
order 31st January, 2017.
5. Notice dated 30th March, 2019 under section 148 of the
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WP. 950- 2020
Act for the assessment year 2012-13 in the name of TSPL had been
issued by respondent No. 1 directing to file return of income within
thirty days stating there is reason to believe that income chargeable to
tax had escaped assessment,, without realising that said company was
a non existing entity.
6. He submits, petitioner became aware of aforesaid notice
based on telephonic conversation of respondent No. 1 with an
employee of petitioner in second week of September, 2019. Petitioner
had filed a letter dated 18th September, 2019 stating that TSPL has
been amalgamated with effect from 1st April, 2010 and since then said
company has ceased to exist, and as such, there is no question of filing
returns of income for assessment year 2012-13 by said company. The
then company M/s. Intelenet Global Services pvt. Ld. had duly filed
returns of income for all the subsequent assessment years, and had as
such submitted that the notice had been issued on misconception and
appears to be an inadvertent error. In ensued telephonic conversation
with respondent No. 1, the petitioner was advised to file online
response. While attempts had been unsuccessful and portal was not
letting petitioner to upload any document including reply, reply had
been submitted via email on 29th November, 2019, enclosing a separate
letter of even date. Petitioner had submitted that even after merger,
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some times the payers make payment to the petitioner, however,
erroneously, continue to mention the PAN of erstwhile company and
accordingly said deduction is reflected in the 26 AS of erstwhile
company and not petitioner company, and petitioner in its return
considered all such payments and claimed all such deduction. As such,
there is no question of escaping assessment for the assessment year
2012-13.
7. It is contended that without considering the reply or even
referring to the telephonic conservation of petitioner with respondent
No. 1, assessment order dated 31st December, 2019 for the assessment
year 2012-13, under section 144 read with section 147 of the Act, in
the name of TSPL computing total income at Rs. 14,50, 95,452/- was
passed. It has been referred to that respondent No. 1 purports to allege
that petitioner had neither filed response to the show-cause notice nor
filed returns of income for relevant assessment year. As per 26AS
statement, taxes have been deducted with respect to transactions
amounting to Rs. 14.51 Crores, hence, the same is treated as taxable
under the provisions of the Act.
8. Petitioner on realising that assessment order dated 31st
December, 2019 had been passed against M/s. TecnovateEsolutions
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Pvt. Ltd., the petitioner is constrained to file writ petition, challenging
notice dated 30th March, 2019 and assessment order dated 31st
December, 2019.
9. Mr. Mistri, learned senior counsel submits that while the
facts are indisputable, impugned notice dated 30th March, 2019 and
impugned order dated 31st December, 2019 for assessment year 2012-
13 in the name of M/s. Tecnovate Esolutions Pvt. Ltd. are clearly
without jurisdiction. He submits that having ragard to the
amalgamations with effect from 1st April, 2010 onwards petitioner is
the only company in existence and subsequent to period of the merger,
any proceedings could be initiated only by officer having jurisdiction
over the petitioner i.e. respondent No. 3 and not respondent No. 1.
Impugned notice issued for the period viz. assessment year 2012-13
after the amalgamation is clearly outside the scope of jurisdiction of
respondent No. 1. He refers to the letters dated 18th September, 2019
and 29th November, 2019 as well as e-mails dated 16th October, 2019.
He submits that despite aforesaid, the decision purports to consider
that impugned notice has not been responded to. He submits that there
is not even a whisper about the objection by petitioner to the notice
and the proceedings. He submits that no assessment or re-assessment
proceedings can be initiated against a person not in existence during
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31
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the relevant period. Thus the impugned notice and impugned order are
absolutely without jurisdiction. He submits that it has been ignored
that M/s. Tecnovate Esolutions Pvt. Ltd. had not been in existence
with effect from 1.4.2010 for the financial year 2011-12. He submits
that M/s. Intelenet Global Services Pvt. Ltd. had already filed returns
of income for the assessment year 2012-13 and assessment completed
under Section 143(3) of the Act. In the circumstance, there is no
question of assessment being reopened or the assessment order being
passed in the name of erstwhile company.
10. He submits, petitioner was not afforded any opportunity
of hearing. Notice dated 4th December, 2019 was not served on the
petitioner, even the same was not uploaded on the e-portal. The
impugned notice and the impugned order of assessment are in breach
of principles of natural justice. He thereafter, urges to allow the
petition, quashing and setting aside impugned notice date 30th March
and the impugned order dated 31st December, 2019.
11. Respondent No. 4 has submitted its reply. The petition is
resisted contending that notice dated 30th March, 2019 and assessment
order dated 31st December, 2019 for assessment year 2012-13 are legal
and sustainable as per the provisions of the Act. It is contended that
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petitioner as successor entity had been responsible to reply the notices
including show-cause notice issued on 4th December, 2019 through
ITBA system of the department and the notices and orders were
dispatched to the concerned assessee on its email id which is registered
with the department for receiving such communications. It had been
realized that the PAN of the entity TSPL had been apparently active in
the database of the department. It is being referred to that petitioner
has appellate forum to approach against the order passed. It is further
being referred to that jurisdiction over the company TSPL is with the
Circle 25(1), Delhi. Thus, it is contended that petitioner is not entitled
to any of the relief claimed, as such, petition is liable to be dismissed.
12. Learned counsel Mr. Walve for respondents vehemently
submits that jurisdictional issue would arise in the petition since the
order has been passed by the authority at Delhi.
13. Mr. J. D. Mistri, learned senior advocate lays particular
emphasis on clause (2) of Article 226 of India, which reads as under:
“(2) The power conferred by Clause (1) to issue
directions, orders or writs to any Government,
authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or
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in part, arises for the exercise of such power,
14. He submits that there are lot of decisions throwing light
on territorial jurisdiction of courts. He refers to the case of Kusum
Ingots and Alloys Ltd. Vs. Union of India (UOI) and Anr.1 wherein
Supreme Court considered that even if a small fraction of cause of
action accrues within the territorial jurisdiction of a court, the court is
competent to entertain writ petition by virtue of clause (2) of Article
226 of the Constitution of India. It has been observed that if passing of
a parliamentary legislation gives rise to civil or evil consequences, a
cause for writ petition questioning constitutionality thereof arises and
can be filed in any high court. It is not so, a cause of action arises
only when the provisions of the Act or some of them are implemented
would give rise to civil or evil consequences to the petitioner. The seat
of the Parliament or a State Legislature would not be relevant factor
for determining territorial jurisdiction of a high court to entertain a
petition. It has been held in the same that the material facts which are
imperative for the suitor to allege and prove constitutes the cause of
action.
1 AIR 2004 SC 2321
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notwithstanding that the seat of such Government or
authority or the residence of such person is not within
those territories.”
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15. It has also been referred to in said decision, paragraph 24
thereof in using the terms ‘cause of action’, it has been considered that
litigant who is the dominus litis to have his forum conveniens
and
litigant has the right to go to ‘a Court’ where part of cause of action
arises.
16. Referring to he case of Vodafone India Ltd. & Ors. Vs.The
Competition Commissioner of India & Ors.2, it is contended that it
would not be a case at all jurisdiction to entertain the writ petition. It is
being submitted that there is no denial to the factual aspects and as a
matter of fact petitioner is being considered responsible being
successor company, stationed at Mumbai. It is an entity at Mumbai
and it cannot be said it is not afflicted by impugned order in Mumbai.
Lot of correspondence ensued from Mumbai.Though order is passed in
Delhi, it affects a person at Mumbai. As such, cause of action for
petitioner has arisen in Mumbai.
17. Learned senior counsel also refers to a decision of this
court dated 7.3.2011 in the case of Wills India Insurance Brokers Pvt.
Ltd. Vs. Insurance Regulatory and Development Authority3 wherein it
has been observed that part of cause of action has arisen within
2 Writ Petition No. 8594 of 2017 with connected matters, dated 21.9.2017
3 Writ Petition No. 2468 of 2010
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territorial jurisdiction of this court. Referring to clause (2) of Article
226 of the Constitution, the court observed that the petitioner’s
registered office is located at Mumbai, it operates business from
Mumbai. Since office of respondent No. 1 was located at Hyderabad,
renewal application was required to be preferred at Hyderabad, it
would not be a case that no part of cause of action can be said to have
arisen within the territorial jurisdiction of the Mumbai court. The case
of Navinchandra Majithia Vs. State of Maharashtra4 had also been
referred to wherein it has been held that high court has jurisdiction if
any part of the cause arisen within territorial limits of its jurisdiction,
though the seat of government or authority or residence of person
against whom direction, order or writ is sought to be issued is not
within the territorial jurisdiction. It was considered that respondent
had been located at Hyderabad where decision is taken in connection
with renewal application, a person who is likely to be affected on the
basis of such decision, can approach the court where he is affected by
such decision and it cannot be said that no part of cause of action arose
within territorial jurisdiction of this court.
18. Mr. Walve, learned counsel for respondents purports to
refer to and rely upon a decision of this Court in the case of Principal
4 (2007) 7 SCC 640
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Commissioner of Income-tax, Pune Vs. Sunguard Solutions (I) (P.)
Ltd.5. It appears that in said case, order by tribunal in Bangalore was
passed on 30.7.2015. On 8.9.2015 an order was passed under section
127 transferring the assessee’s case from the assessing officer at
Bangalore to an assessing officer at Pune and the appeal was filed in
January, 2006 before this court contending that situs of the assessing
officer would alone determine the high court which would have
jurisdiction over the orders of the tribunal under section 260A of the
Act. At the time of appeal, seat of assessing officer is at Pune
therefore this high court will have jurisdiction. Aforesaid submissions
were opposed by the assessee contending that appeals to high court are
governed by chapter XX of the Act. Section 260A provides appeals to
high court from every orders passed in appeal by tribunal. Section 269
of the Act, defines the high court of the State. It was contended that
section 127 of the Act deals with the jurisdiction of the authorities and
would not control / decide and/or determine which high court will be
the appellate forum. Perusal of said decision shows that it was
observed that Sections 260A and 269 read together would mean that
the high court referred to in section 260 A will be the high court as
provided/defined in section 269 i.e. in relation to any State, the High
Court of that State. It would be seen that in aforesaid matter, apart
5 (2019) 105 taxmann.com 67 (Bombay)
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from distinguishable factual position, context had also been different.
Decision of the supreme court in the case of Alchemist Limited & Anr.
Vs. State Bank of Sikkim & Ors.6 is being referred to in support of
contentions that this court would not have jurisdiction. Said case
appears to be on different factual background. It appears that appellant
company had certain negotiations with respondent bank in respect of
disinvestment of equity capital of the bank at place ‘S’. Appellant was
situated at place ‘C’. It was contended that while negotiations were
held between appellant and respondent at the place ‘S’, yet letters of
proposal and acceptance and also of rejection were communicated at
the place ‘C’. Writ petition was filed against the rejection by appellant
company had been dismissed by the high court at ‘C’ for want of
territorial jurisdiction and in appeal therefrom, the supreme court had
considered that it is not a case where essential, integral or material
facts so as to constitute a part of ‘cause of action’ within tthe meaning
of Article 226(2) of the Constitution of India, in the high court at place
‘C’.
19. In the present case, it is seen there is acceptance in reply
on behalf of respondents that petitioner is a successor company of
erstwhile M/s. Tecnovate Esolutions Pvt. Ltd. and successor has its
6 2007 AIR (SC) 1812
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WP. 950- 2020
registered office at Mumbai and is stationed at Mumbai carrying in
bvusiness. After impugned notice dated 30th March, 2019,
correspondence from the petitioner’s side ensued from September,
2019 onwards has not been disputed. It would not be said to be a case
wherein no part of cause of action has arisen for the petitioner where
petitioner would to be affected by impugned order, going by decisions
referred to on behalf of petitioner.Having regard to facts and
circumstances and the decisions, relied on, on behalf of the petitioner,
it does not appear that resistance to the petition on the ground of
jurisdiction would carry any efficacy.
20. Position emerges that there is no dispute on factual aspect
that TSPL had been amalgamated into M/s. Intelnet Global Services
Pvt. Ltd. with effect from 1st April, 2010. As a matter of fact, same has
been endorsed in the affidavit-in-reply filed on behalf of the
respondents, referring to that petitioner is its ultimate successor.
Thereafter, said company had also been submitting returns and those
were assessed from time to time in respect of subsequent financial and
assessment years. This aspect as well has not been disputed. So is the
case in respect of averments appearing in paragraph 4J. (c) of the
petition to the following effect:
“(c) The Petitioner submitted that even after merger,
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sometimes the payers make payment to the Petitioner,
however, erroneously continue to mention the PAN of the
erstwhile company and not the Petitioner’s company.
However, the Petitioner in its return of income consider all
such payments and claim all such deduction. Therefore,
there can be no question of any escaping assessment for
the assessment year 2012-13.”
21. During the course of submissions, learned senior counsel
Mr. Mistri refers to decision of the Supreme Court of India in the case
of Principal Commissioner of Income Tax, New Delhi Vs. Maruti
Suzuki India Ltd.7 (Maruti Suzuki)
22. The Supreme Court in the case of Maruti Suzuki (supra)
had considered that income, which was subject to be charged to tax for
the assessment year 2012-13 was the income of erstwhile entity prior
to amalgamation. Transferee had assumed liabilities of transferor
company, including that of tax. The consequence of approved scheme
of amalgamation was that amalgamating company had ceased to exist
and on its ceasing to exist, it cannot be regarded as a person against
whom assessment proceeding can be initiated. In said case before
notice under Section 143(2) of the Act was issued on 26.9.2013, the
scheme of amalgamation had been approved by the high court with
effect from 1.4.2012. It has been observed that assessment order
7 (2019) 416 ITR 613 (SC)
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passed for the assessment year 2012-13 in the name of non-existing
entity is a substantive illegality and would not be procedural violation
of Section 292 (b) of the Act.
The Supreme Court in its aforesaid decision, has quoted
an extract from its decision in Saraswati Industrial Syndicate Ltd. Vs.
CIT8. The Supreme Court has also referred to decision of Delhi high
court in the case of CIT Vs. Spice Enfotainment Ltd.9and observed that
in its decision Delhi high court had held that assessment order passed
against non-existing company would be void. Such defect cannot be
treated as procedural defect and mere participation of appellant would
be of no effect as there is no estoppel against law. Such a defect cannot
be cured by invoking provisions under section 292B. The Supreme
Court had also taken note of decision in Spice Entertainment (supra)
was followed by Delhi high court in matters, viz. CIT Vs. Dimensions
Apparels (P.) Ltd.10, CIT Vs. Micron Steels (P) Ltd.11; CIT Vs. Miscra
India (P). Ltd.12 and in CIT Vs. Intel Technology India Ltd.13 Karnataka
high court has held, if a statutory notice is issued in the name of nonexisting
entity, entire assessment would be nullity in the eye of law. It
has also been so held by Delhi high court in the case of Pr. CIT Vs.
8 (1990) 186 ITR 278 (SC)
9 (2018) 12 ITR-OL 134 (SC)
10 (2015) 370 ITR 288
11 (2015) 59 taxmann.com 470/233 Taxman 120/372 ITR 386 (Del.) (Mag.)
12 (2015) 57 taxmann.com 163/231 Taxman 809 (Delhi)
13 (2016) 380 UTE 272 (Kar.)
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Nokia Solutions and Network India (P) Ltd.14
CIT15
found that there is no reason to interfere with the impugned judgment
of Delhi high court and it found no merits in the appeal and special
leave petition and were dismissed accordingly.
The Supreme Court had taken note of revenue resistance
contending that contrary position emerges from decision of Delhi high
court decision in Sky Light Hospitality LLP Vs. Assistant
Cdommissioner of Income-tax16 and that it had been affirmed by the
Supreme Court. However, the Supreme Court had also taken note of
Sky Light LLP (supra) was in peculiar facts of the case, where the high
court had catgegorically concluded that there was clerical mistake
within the meaning of section 292B and the case had been
distinguished by decisions of Delhi, Gujarat and Madras high courts in
Rajender Kumar Sehgal Vs. ITO17; Chandreshbhai Jayantibhai Patel
Vs. IOT18; and Alamelu Veerappan Vs. ITO19.
24. In the circumstances, though the respondents refer to
decision of Delhi High Court in case of Sky Light Hospitality LLP Vs.
14 (2018) 90 taxmann.com 369/253 Taxman 409/402 ITR 21 (Delhi)
15 (2012) 247 CTR 500 (Delhi)
16 (2018) 92 taxmann.com 93 (SC)
17 (2019) 10 taxmann.com 233/260 Taxman 412 (Delhi)
18 (2019) 101 taxmann.com 362/261 Taxman 137 (Guj.)
19 (2018) taxmann.com 155/257Taxman 72 (Mad.)
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23. The Supreme Court in Spice Infotainment Ltd. Vs. CIT
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WP. 950- 2020
Assistant Commissioner of Income Tax, Circle 28(1), New Delhi20 it
would be of little avail for the respondents. The decision in the case of
Maruti Suzuki (supra) would hold sway over present facts and
circumstances.
25. Foreoing discussion and decisions referred to on behalf of
petitioner lead us to consider that petitioner has made out a case for
reliefs and it would be appropriate to allow petition in terms of prayer
clause (a). Rule is made absolute in terms of prayer clause (a). The
writ petition is disposed of.
Sd/- Sd/-
[ABHAY AHUJA, J.] [SUNIL P. DESHMUKH, J.]
Vinayak Halemath
20 (2018)90 taxamann.com 413 (Delhi)
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Delhi
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