TaxTMI 
TaxTMI 
2016 (8) TMI 820
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....onal transactions of payment of royalty entered into by the appellant on the basis of the order under section 92CA(3) of the Act. 2.1 That the Transfer Pricing Officer ('TPO') /Dispute Resolution Panel ('DRP') erred on facts and in law in holding that the international transaction of payment of royalty does not satisfy the arm's length principles as envisaged under the Act. 2.2 That the TPO/DRP erred on facts and in law not appreciating that the transaction of payment of royalty was closely linked to the business of the assessee and was appropriately benchmarked by the appellant applying Transactional Net Margin Method ('TNMM') at entity level. 2.3 That the TPO/DRP erred on facts and in rejecting the benchmarking analysis undertaken by the assessee without providing any cogent reasons. 2.4 That the TPO/DRP erred on facts and in law in incorrectly applying Comparable Uncontrolled Price ('CUP') method, not appreciating that application of CUP method requires high degree of product and functional comparability. 2.5 That the TPO/DRP erred on facts and in law in selecting functionally dissimilar license agreements for the purpose of ben....
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....ing TNMM wherein such arrears were considered as part of cost of sales. 2.14 That the TPO/DRP erred on facts and in law in making adjustment in respect of royalty paid by the assessee during financial years 2006-07. 2008- 09 and 2009-10 which have already examined and accepted to be arm's length by the TPO. 2.15 That the TPO/DRP erred on facts and in law in failing to appreciate that the transaction of payment of royalty was accepted to be at arm's length in all the preceding years. 3. That the assessing officer/DRP erred on facts and in law in holding that royalty aggregating to Rs. 16,67,00,000 was not allowable as deduction during the relevant year since the same pertained to earlier years, and consequently, making net disallowance of Rs. 2,63,00,000 as prior period item. 3.1 That the assessing officer/DRP erred on facts and in law in not appreciating that even though royalty pertained to earlier year(s), the liability crystallized after receipt of regulatory approvals during the year under consideration. 4. Without prejudice, the AO/ DRP erred in not allowing/ directing royalty, held to be prior period item, to be allowed as deduction in the year to which....
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.... the erstwhile entity with M/s Maruti Suzuki India Ltd. was duly intimated to the Revenue authorities as under: "a) Letter dated 2nd April, 2013 filed in the office of ACIT, Circle-50(1), New Delhi on 8th April, 2013; b) Letter dated 2nd April, 2013 filed in the office of ACIT, Circle-51(1), New Delhi on 18th April, 2013; c) Letter dated 5th April, 2013 filed in the office of Additional CIT, Range-VI, New Delhi on 8th April, 2013; d) Letter dated 2nd April, 2013 filed in the office of Joint Director of Income Tax, Transfer Pricing Officer-II(2), New Delhi on 3rd April, 2013; e) Letter dated 5th April, 2013 filed in the office of CIT-II, New Delhi on 8th April, 2013;" 6. It was further submitted that since the erstwhile entity dissolved and ceased to exist as a legal entity in the eyes of law from 17.03.2013 i.e. the date on which the amalgamation was taken on record by the Registrar of Companies, no proceedings can be initiated/continued in the name of nonexistent entity, viz. M/s Suzuki Powertrain India Ltd. on or after the said date. It was pointed out that this fact that M/s Suzuki Powertrain India Ltd. stood amalgamated, was within the knowledge of the AO/Reve....
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....• Braham Prakash vs. ITO (2004) 192 CTR 190 (Del) • CIT vs. Ram Das Deokinandan Prasad (HUF): 277 ITR 197 (All) • M/s Computer Engineering Services India (P.) Ltd. v. ACIT: 172 TTJ 317 (Del) • M/s Mevron Projects Pvt. Ltd. vs. ACIT: ITA No.5412 to 5416/DeI/2013 (Del) • Makers Development Services Ltd. v. CIT: 40 ITD 185(Bom) • Late A.Y. Prabhakar (Indl.) v. ACIT: 105 TTJ 391(Chenn.) • Impsat (P) Limited V. ITO: 91 ITD 354 (Del.) • Slocum Investment (P) Limited: 106 ITD It 101 TTJ 658 (Del.) • ACIT vs. Wellvest Investment (P) Ltd.: CO No. 251/Del./2006 • Hewlett Packard (I)(P) Ltd. v ACIT: ITA No : 4016/Del/05 • Pampasar Distillery Ltd. v ACIT:[2007] 15 SOT 331 (Kol) 8. The ld. Counsel for the assessee submitted that a mere participation by the amalgamated company in the assessment proceeding would not cure the defect as the assessment framed in the name of a non-existent entity would tantamount to jurisdictional defect, thus making it void ab initio. The reliance was placed on the following case laws: • CIT v. Amarchand N. Shroff: 4....
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....the assessment year under consideration by the erstwhile entity M/s Suzuki Powertrain India Ltd. and the AO rightly assessed the income in its hand. It was further submitted that as per the provisions of Section 170(1) of the Act. The predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession and that the successor shall be assessed in respect of the income of the previous year after the date of succession. It was pointed out that in the present case, the succession took place w.e.f. 01.04.2012 as a result of scheme of amalgamation duly approved by the Hon'ble Delhi High Court vide order dated 29.01.2013, therefore, the predecessor M/s Suzuki Powertrain India Ltd. was to be assessed in respect of the income of the previous years ending on or before 31.03.2012 and as such the AO rightly assessed the income in the name of amalgamating company i.e. M/s Suzuki Powertrain India Ltd. 10. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the amalgamating company M/s Suzuki Powertrain India....
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....cheme of the amalgamation filed before the Company Judge of this Court which was dully sanctioned vide orders dated 11th February, 2004. With this amalgamation made effective from 1st July, 2003, M/s Spice ceased to exist. That is the plain and simple effect in law. The scheme of amalgamation itself provided for this consequence, inasmuch as simultaneous with the sanctioning of the scheme, M/s Spice was also stood dissolved by specific order of this Court. With the dissolution of this company, its name was struck off from the rolls of Companies maintained by the Registrar of Companies. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with the dissolution as per the provisions of the Companies Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. In view of the aforesaid clinching position in law, it is difficult to digest the circuitious route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. After the sanction of the scheme on 11th April, 2004, the Spice....