Boston Scientific Technology and Engineering Services Pvt. Ltd. vs Income Tax Department

PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:-

This appeal has been filed by the assessee against the final assessment order dated 25.06.2024 passed under section 143(3) read with section 144C(13) r.w.s. 144B of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), pursuant to the directions of the Hon'ble Dispute Resolution Panel (DRP) order dated 18.05.2024 for Assessment Year 2020-21.

At the outset, the Ld. Counsel for the assessee submitted that Boston Scientific Services Pvt. Ltd. (BSSPL) had merged with Boston Scientific Technology and Engineering Service Pvt. Ltd. (BSTESPL) on 09.07.2021. It was further submitted that the fact of merger of the company, Boston Scientific Services Pvt. Ltd. (BSSPL) with Boston Scientific Technology and Engineering Service Pvt. Ltd. (BSTESPL), was intimated to the Assessing Officer on 14.07.2021, after the MCA approved the merger on 09.07.2021. The ld AR stated that the JAO /FAO and also the TPO were intimated about the scheme of merger vide various letters/submissions filed, but the authorities, TPO, Dispute Resolution Panel ("DRP") and FAO still passed the orders in the name and PAN of the erstwhile entity, i.e., Boston Scientific Services Private Limited (BSSPL"), a non-existing entity, and therefore, such assessment order has to be considered as non-est. The Ld. Counsel submitted that although the notice u/s 143(2) of the Act dated 29.06.2021 was issued before the merger on BSSPL, all the other notice u/s 142(1) were issued in the name of old entity. Accordingly, as the assessment was completed on non-existent entity, the assessment order cannot be held to be valid. The ld AR further submitted that framing of assessment on the erstwhile entity is a jurisdictional defect which cannot be cured by resorting to section 292B of the Act. Reliance is also placed on the following cases wherein it is held that framing of assessment on the erstwhile entity is a jurisdictional defect which cannot be cured by resorting to section 292B of the Act and such an assessment order is liable to be quashed:

PCIT v Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375 (SC)

PCIT v HCP Petrochem (P) Ltd.: [2025] 172 laxmann.com 154 (Delhi)

CIT v Sony Mobile Communications Ind (P.) Ltd. [2023] 160 taxmann.com 145 (Delhi)

City Corporation Ltd. v ACIT: [2025] 171 taxmann.com 301 (Bom)

Boeing India Pvt. Ltd. v ACIT ITA No.828/Del/2021

The ld AR further stated that the Department can not take the plea of limitation in ITBA system for passing order in the name of non-existing entity and relied on the following decisions:

City Corporation Ltd. v ACIT: [2025] 171 taxmann.com 301 (Bom)

Paras Defence and Space Technologies Ltd V DCIT (2026) 183 taxmann.com 333(Bom)

Genpact India (P) Ltd. v DCIT [2024] 160 taxmann.com 268 (Del)

SHL (India) (P.) Ltd. v DCIT: [2021] 128 taxmann.com 426 (Bom)

Boeing India Pvt. Ltd. v ACIT ITA No.828/Del/2021

Liquidhub Analytics (P.) Ltd. v NFAC: [2025] 172 taxmann.com 742 (Pune)

India Medtronic Private Limited v DCIT: ITA No. 1339/Mum/2021 & 583/Mum/2022

The ld DR, on the other hand acknowledged that the fact of amalgamation between Boston Scientific Services Pvt. Ltd. (BSSPL) with Boston Scientific Technology and Engineering Service Pvt. Ltd. (BSTESPL), was duly bought to the notice of the AO(FAO), however, the name of BSTESPL was tagged for the first time only when the DRP passed its order dated 18.05.2024. Thereafter, the TΡΟ, while giving effect to the DRP's directions vide order dated 18.06.2024 reflected the name of the amalgamated entity in the subject and description of the order. Further, the final assessment order also mentioned the name of BSTESPL in the body of the order. Stating this, the ld DR has contended that such tagging of the name of the amalgamated entity BSTESPL in the various orders passed by the Department during the assessment proceedings shows that the Department fully acknowledges the merger, but the name could not be mentioned in the address box of the order due to technical limitations of the ITBA system. The Ld. DR distinguished the case of PCIT vs. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375 (SC) of the Hon’ble Supreme Court by stating that in that case the notice u/s 143(2) of the Act issued to the erstwhile entity, after the intimation of the amalgamation, whereas in the instant case, notice u/s 143(2) dated 29.06.2021 was issued to BSSPL before the amalgamation. It is the say of the Ld. DR that the Department has always intended to pass order in the name of merged entity, and therefore, this is a curable defect and thus is protected u/s 292B of the Act.

The ld DR, in this regard, placed heavy reliance on the judgment of the Hon'ble Delhi High Court in Sky Light Hospitality LLP v. ACIT [2018] 90 taxmann.com 413 (Delhi), wherein it was held that a reassessment notice issued in the name of a non-existent erstwhile private limited company despite its conversion into an LLP, would not invalidate the proceedings, as such a defect is merely a procedural irregularity curable under Section 292B of the Income-tax Act, 1961. The Hon'ble Court observed that where the proceedings are in substance and effect intended for and understood by the correct, continuing entity, a technical misdescription of the assessee's name does not render the proceedings void ab initio, provided no prejudice is caused to the assessee. The Court distinguished such curable defects from jurisdictional errors and emphasized that Section 292B is intended to prevent hyper-technical objections from defeating lawful assessments. It is submitted that the principle laid down in Sky Light Hospitality LLP (supra) squarely applies to the present case. The draft and final assessment orders have reflected the name of the erstwhile amalgamating entity solely due to ITBA system limitations; however, the substance, address, contents, and flow of the proceedings unmistakably show that the assessment has been conducted with respect to the amalgamated and existing company, BSTESPL. The assessee was fully aware that the proceedings pertained to the amalgamated entity, and no confusion or prejudice has been caused. Therefore, in view of Section 292B and the binding ratio of the above judgment, the mention of the predecessor entity's name constitutes a technical irregularity only and does not affect the validity, jurisdiction, or legality of the assessment.

In its rejoinder, the ld AR reiterated that the final assessment order has been passed in the name and PAN of erstwhile entity and nowhere the FAO discusses the fact of merger in the order. Similarly, the DRP directions have also been passed in the name and PAN of the erstwhile entity. The OGE passed by the TPO merely mentions the fact of merger in the subject line, but the order has again been passed in the name and PAN of erstwhile entity only. Thus, the stand of the ld DR does not stand the factual test. Even, otherwise the mentioning of merger in the OGE by the TPO will not make the invalid orders valid, in fact it goes against the Department that despite having knowledge of merger the correct steps to pass orders in correct name was not taken by the Department. The ld AR place reliance on the Hon'ble Bombay High Court decision in the case of Paras Defence and Space Technologies Ltd. vs DCIT: [2026] 183 taxmann.com 333 (Bom) and on the following judicial precedents wherein the Courts have held that merely taking shelter of technical difficulties in the ITBA does not absolve the Department from the mandate to pass orders of assessment in the correct name:

City Corporation Ltd. v ACIT: [2025] 171 taxmann.com 301 (Bom)

Genpact India (P) Ltd. v DCIT [2024] 160 taxmann.com 268 (Del)

SHL (India) (P.) Ltd. v DCIT: [2021] 128 taxmann.com 426 (Bom)

Boeing India Pvt. Ltd. v ACIT ITA No.828/Del/2021

Liquidhub Analytics (P.) Ltd. v NFAC: [2025] 172 taxmann.com 742 (Pune)

India Medtronic Private Limited v DCIT: ITA No. 1339/Mum/2021 & 583/Mum/2022

The ld AR distinguished the decision of the Hon’ble Delhi High Court relied upon by the Revenue in the case of Sky Light Hospitality LLP vs. ACIT [2018]90 taxmann.com 413 (Delhi) and the decision of the Hon’ble Supreme court in the case of Mahagun Realtors P Ltd (2022) 137 taxmann.com 91(SC). The ld AR stated that in Skylight,(supra) the reassessment notice was issued in the name of a company that had been converted into an LLP, however, the Court treated the mistake as a curable clerical error because the notice clearly referred to the correct PAN, assessment records, and the successor entity had participated in the proceedings. In the present case the defect is not merely a typographical or clerical mistake but goes to the root of Jurisdiction. Even after the due intimation of amalgamation to the AO (refer pages 36-37 of the paperbook), all the notices were issued to a legally non-existent entity, without any material indicating that the assessing authority intended to proceed against the correct successor (refer pages 38-53 of the paperbook). Further, in this case the assessee has challenged all the orders which has been passed in the name and PAN of the erstwhile entity despite being fully aware of merger has taken place (refer pages 121, 155, 221 and 231 of the paperbook), however, in Skylight, only the notice issued for initiation of reassessment proceedings under section 147/148 was challenged. Thus, it cannot be said that the facts of assessee is similar to that of facts of SkyLight. Unlike Skylight, there is no surrounding material demonstrating a mere misdescription, rather, the orders itself reflect fundamental jurisdictional error. Consequently, the ratio of Skylight cannot be mechanically applied, and the impugned proceedings are liable to be treated as invalid.

The ld AR submitted that in Skylight, the case arose in the context of conversion of a company into a Limited Liability Partnership. which is fundamentally distinct from a case of amalgamation. Upon conversion, the LLP is deemed to be a continuation of the erstwhile company, with all assets, liabilities, rights and obligations automatically vesting in the LLP. Thus, conversion does not ipso facto result in the extinction of the underlying business entity but merely changes its legal form.

The ld AR further argued that this position stands in clear contrast to cases of amalgamation, where the amalgamating company ceases to exist in law upon the scheme taking effect. Courts have consistently held that proceedings initiated against a non-existent amalgamating entity are void ab initio. In PCIT v Maruti Suzuki India Ltd.: [2019] 107 taxmann.com 375 (SC), the Hon'ble Supreme Court held that once a company is dissolved pursuant to amalgamation, it loses its legal existence and any assessment in its name is a jurisdictional defect. Similarly, the Hon'ble Delhi High Court in Spice Entertainment Ltd. v. Commissioner of Income Tax ruled that assessment framed on an entity which had ceased to exist due to amalgamation is invalid and cannot be saved as a procedural irregularity. Consequently, while amalgamation results in the complete dissolution of the transferor entity, conversion into an LLP represents only a statutory transformation with continuity of the same enterprise, and therefore the two situations are not legally comparable. The ld AR placed reliance on the following decisions wherein the decision of Skylight has been distinguished and overturned by Courts on the above-mentioned reasoning:

PCIT v Maruti Suzuki India Ltd.: [2019] 107 taxmann.com 375 (SC)

PCIT v HCP Petrochem (P.) Ltd.: [2025] 172 taxmann.com 154 (Del)

CIT v Sony Mobile Communications Ind (P.) Ltd.: [2023] 150 taxmann.com 145 (Del)

International Hospital Ltd. v DCIT: [2024] 167 taxmann.com 317 (Del)

Upon being asked to distinguish the Hon’ble Supreme Court decision of case of Mahagun Realtors (P) Ltd (2022) 137 taxmann.com 91(SC) with that of the assessee, the ld AR placed the following distinctions:

The ld AR further submitted that the Hon'ble Delhi High Court in the case of International Hospital Ltd. v DCIT: [2024] 167 taxmann.com 317 (Del) quashed the order passed in the name of non-existing entity, inter alia holding that notice/order in the name of a company which stood dissolved would not be a curable mistake and that in any case, section 170 of the Act would not be able to save those notices.

Per contra, the Ld. DR reiterated that the initial notice u/s 143(2) of the Act dated 29.06.2021 was issued in correct name. The Ld. DR emphasized that the DRP has mentioned the name of the new entity, and the order giving effect passed by the Assessing Officer in the final assessment order mentions the recording of the DRP of the new entity. In this regard, the Ld. DR emphasized that this shows that the Assessing Officer had intent to pass the order under the new entity, but because of technical defect in ITBA the assessment order was passed in the name of erstwhile entity. The Ld. DR heavily relied in the decision of the Hon’ble Delhi High Court in the case of Skylight (supra) to emphasis the point that the intent purpose of the assessing officer must be seen to determine whether the mistake in the assessment order is curable or not. It is the say of the Ld. DR that the provision of section 292B of the Act comes to the rescue of the Assessing Officer and therefore, the assessment order should be considered as a valid order.

We have heard the rival submissions and have carefully perused the materials on record. The issue for adjudication is whether the Final assessment order dated 25.07.2025 passed u/s 143(3) r.w. 144C(13) in the name of Boston Scientific Services Pvt. Ltd. (BSSPL), a company that had merged with Boston Scientific Technology and Engineering Service Pvt. Ltd. (BSTESPL) on 09.07.2021, is valid or not. The facts emerging out in the instant case is that the company Boston Scientific Services Pvt. Ltd. (BSSPL) filed its return of income on 22.12.2020. The return was selected for complete scrutiny and a notice u/s 143(2) dated 29.06.2021 was issued to the BSSPL, i.e., prior to merger. In the meanwhile, Boston Scientific Services Pvt. Ltd. (BSSPL) got merged with Boston Scientific Technology and Engineering Service Pvt. Ltd. (BSTESPL) with the MCA Intimation dated 09.07.2021 approving the scheme of merger. The fact of merger was intimated to the Assessing Officer JAO/FAO vide letters dated 13.07.2021;10.11.2021 and 12.12.2022. The various subsequent notices u/s 142(1) issued by the TPO were issued under the name of BSSPL but the submissions filed by the assessee, mentioned in the subject Boston Scientific Services Pvt. Ltd. (BSSPL) (merged with Boston Scientific Technology and Engineering Service Pvt) and signed in the name of Boston Scientific Services Pvt. Ltd. (BSSPL) (merged with Boston Scientific Technology and Engineering Service Pvt Ltd).

We further note that the TPO passed the order u/s 92CA(3) on 21.07.2023 in the name of Boston Scientific Services Pvt. Ltd. (BSSPL), the erstwhile company. Thereafter a draft order u/s 144C(1) was passed by the AO in the name of Boston Scientific Services Pvt. Ltd. (BSSPL). The assessee filed objection before the DRP in Form 35A under the name of Boston Scientific Technology and Engineering Service Pvt (erstwhile Boston Scientific Services Pvt. Ltd). Taking note of the merged entity, the DRP issued its directions dated 18.05.2024 in the name of Boston Scientific Services Pvt. Ltd (now known as Boston Scientific Technology and Engineering Service Pvt ltd). The order giving effect (OGE) to the DRP directions however, was issued by the AO on 18.06.2024, again under the name of Boston Scientific Services Pvt. Ltd. The OGE however, mentioned in the subject of the said order the merged entity’s name as Boston Scientific Services Pvt. Ltd (now merged with Boston Scientific Technology and Engineering Service Pvt ltd). Finally, the final assessment order u/s 143(3) r.w. 144C(13) dated 25.06.2024 was passed by the Assessment Unit, again under the name of Boston Scientific Services Pvt. Ltd, i.e., the erstwhile entity. It is noticed however, that the Assessment Unit order incorporates the Order Giving Effect (OGE) wherein the subject matter is recorded as Boston Scientific Services Pvt. Ltd (now merged with Boston Scientific Technology and Engineering Service Pvt ltd), in its order.

At the outset, we find ourselves hard to be persuaded by the assessee’s argument attempting to distinguish the facts in Skylight case with its own, that conversion of a company into a Limited Liability Partnership is fundamentally distinct from a case of amalgamation. We are of the opinion that just like in the case of conversion from firm to LLP, the LLP is deemed to be a continuation of the erstwhile firm, with all assets, liabilities, rights and obligations automatically vesting in the LLP, the same happens in the amalgamation case. The Supreme Court, expounded on the effect of amalgamation in the case of Mahgun Realtors P Ltd as under:

The issue to be addressed now is whether in such facts and circumstances, whether the framing of assessment on the erstwhile entity, is a jurisdictional defect which can be cured by resorting to section 292B of the Act. We find that the Revenue has strongly relied on the decision of Sky Light Hospitality LLP v. ACIT and Mahagun Realtors (P) Ltd whereas the assessee has relied on PCIT v Maruti Suzuki India Ltd.; PCIT v HCP Petrochem (P.) Ltd; CIT v Sony Mobile Communications Ind (P.) Ltd and International Hospital Ltd. v DCIT (supra).

We find that the hon’ble Delhi High Court in the case of CIT v Sony Mobile Communications Ind (P.) Ltd dealt with law on the above subject considering the hon’ble Supreme Court decisions in the cases of Maruti Suzuki India Ltd and Mahagun Realtors P Ltd as well as its own judgements in the case of CIT v Spice Enfotainment ltd and Skylight Hospitality LLP v ACIT.

Coming to facts of each case, we find that the facts of CIT v Sony Mobile Communications Ind (P.) Ltd is similar to that of the assessee. The jurisdictional notice u/s 143(2) was issued to the erstwhile existing company just like in the present case. In the case of CIT v Sony Mobile Communications Ind (P.) Ltd, the assessee communicated to the AO regarding the merger, just like the instant case. However, the TPO, DRP and the AO passed their orders under the name of erstwhile company, just like in the present case. The ld counsel of the Revenue in CIT v Sony Mobile Communications Ind (P.) Ltd tried to distinguish the facts of the case of Maruti Suzuki India Ltd by stating that in Maruti Suzuki India Ltd, the original jurisdictional notice u/s 143(2) was issued to a company not in existence. The hon’ble Delhi Court, however dispelled such argument relying on the hon’ble Supreme Court judgement of Maruti Suzuki India Ltd which had endorsed the decision of Spice Enfotainment Ltd where assessment order was held as invalid and void when the AO, despite having information about merger/amalgamation of the company, had made an assessment in the name of non-existent company. It was further held that the same is also not a procedural defect which can be cured by the provisions of section 292B. As far as the decision of Sky Light Hospitality LLP v. ACIT is concerned, the hon’ble Delhi Court referred to the judgement of the hon’ble Supreme Court in Maruti Suzuki India Ltd which held that the decision of Sky Light Hospitality LLP v. ACIT was given in the peculiar facts of that case where the court held that the notice u/s 147 issued to the erstwhile entity was clerical mistake curable u/s 292B.

In so far as the decision of the hon’ble Supreme Court in the case of Mahagun Realtors (P.) Ltd is concerned, the hon’ble Delhi Court in the case of CIT v Sony Mobile Communications Ind (P.) Ltd elucidated that the facts of Mahagun Realtors (P.) Ltd is distinguishable as in Mahagun Realtors (P.) Ltd, there was no intimation by the assessee regarding amalgamation of the concerned company; The return of income was filed by the amalgamating company, and in the "Business Reorganization" column, curiously, it had mentioned "not applicable"; The intimation with regard to the fact that the amalgamation had taken place, was not given for the assessment year in issue; The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated company and More crucially, while participating in proceedings before the concerned authorities, it was represented that the erstwhile company i.e., the amalgamating company was in existence.

We find that the facts of Mahagun Realtors (P.) Ltd. (supra) are clearly distinguishable from the facts in hands in the case of the assessee. As noticed above, even after the AO was informed on 13.07.2021, that the amalgamation had taken place and was furnished a copy of the scheme, the AO continued to proceed on the wrong path. This error was continued by the TPO and the AO in its draft assessment order. The DRP to some extent made course correction, by incorporating the name of amalgamating as well as amalgamed company. However, the OGE by the AO as well as the final assessment order by the Assessment Unit was made under the name of the erstwhile non-existent company. Though the final assessment order included the OGE as part of its order which mentioned the name of both amalgamating and amalgamated company in its subject matter, we are of the considered view the same would be not be sufficient to render the assessment order as valid as nowhere in the assessment order the Assessment Unit has indicated that it always intended to pass order in the name of merged entity. Further, as held in the judgement of Maruti Suzuki, the participation of the amalgamated company would have no effect as there is no estoppel against law. We are of the considered view therefore, that such a defect is not a procedural defect curable u/s 292B.

Equally, the arguments of the Revenue that the assessment order could not be passed in the name of the amalgamated entity due to technical difficulties, also do not cut any ice with us. We find that there is no effort by the AO, TPO or the Assessment Unit to even mention in the body of order the fact of merger of the assessee and the technical difficulty faced by the AU in passing order in the name of newly created entity. We are fortified in our view by the decision of hon’ble Bombay High Court in Paras Defence and Space Technologies Ltd. vs DCIT: [2026] 183 taxmann.com 333 (Bom) wherein it was held that merely stating that mistake was on account of a technical issue, does not absolve the Department from mandate to issue notice and pass order of assessment in correct name. Had there been a genuine technical glitch in the selection of the name in the computer system, then Assessing Officer ought to have reported the same somewhere in the impugned notices/the Show Cause Notice or at least in the impugned order of assessment.

We further note that the Hon'ble Delhi High Court in International Hospital Ltd. v DCIT, after elucidating the decisions of Hon’ble Supreme Court in Maruti Suzuki and Mahagun Realtors and the decisions of Delhi High Court in the case of Skylight held as under:

In view of the above discussion, we hold that the assessment order passed u/s 143(3) r.w. 144C(13) dated 25.06.2024 in the name of Boston Scientific Services Pvt. Ltd, the erstwhile entity, is invalid and void ab initio. The defect occurring in the said order is not curable by invoking the provisions of section 292B of the Act. The said assessment order reflect fundamental jurisdictional error, which the DRP attempted to repair, but the Assessment Unit again took the erroneous path in concluding the assessment order in the name on non-existent entity. Merely incorporating the OGE in the Final assessment order where the subject matter mentions the amalgamating and amalgamated company name, does not show that the Assessment Unit had the intention to pass the order under the name of new entity. The Final Assessment order nowhere mentions about any technical difficulties faced in passing the order under the name of new entity. For all these reasons, we therefore hold the aforesaid order as invalid and is accordingly quashed. Ground 3 is allowed.

As the appeal is decided on the jurisdictional ground, other grounds on merits are not adjudicated.

In the result, the appeal in ITA 3693/Del/2024 is allowed.