Assessment against a non-existent amalgamated company is void ab initio; participation cannot cure the jurisdictional defect.

Where a company had amalgamated and ceased to exist, transfer pricing and assessment proceedings had to be initiated against the successor entity; an order issued in the name and PAN of the non-existent amalgamated company was a substantive jurisdictional defect, not a curable technical error. The assessee had informed the tax authorities of the merger, yet the transfer pricing order, draft assessment order and final assessment order were all passed against the ceased entity. Participation by the assessee could not validate proceedings against a dead person in law. The impugned orders were therefore invalid and void ab initio, and the challenge to their validity succeeded.

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Issues: Whether the transfer pricing order, draft assessment order, and final assessment order passed in the name of an amalgamated and non-existent entity were valid in law.

Analysis: The assessee had intimated the tax authorities on multiple occasions that the original company had merged into the successor company with effect from the sanctioned amalgamation date. The record showed that the transfer pricing order, draft assessment order, and final assessment order were nevertheless issued in the name and PAN of the ceased entity, not in the name of the successor. In such a situation, the defect was not a mere technical irregularity, and the participation of the assessee could not cure the jurisdictional infirmity. The governing principle applied was that once amalgamation takes effect and the predecessor ceases to exist, proceedings must be taken against the successor entity; an order against the dead entity is a substantive illegality.

Conclusion: The impugned transfer pricing order and the consequential draft and final assessment orders were held to be invalid and void ab initio, and the ground challenging their validity was allowed in favour of the assessee.

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