TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 239
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....on facts and in law confirming the addition proposed by the Ld. Assessing Officer ('Ld. AO)') to the Appellant's income. 2. The Ld. DRP erred both on facts and in law in confirming the addition of Rs. 1,12,46,145 to the income of the Appellant by holding that its international transaction of 'Provision of Business Support Services' does not satisfy the arm's length principle envisaged under the Income-tax Act, 1961 ('the Act')." 3. The appellant filed a return of income for assessment year 2008-09 on 21/09/2008 declaring a total income of Rs. 51,54,659/-, which was subject to a scrutiny assessment and in terms of an order passed under section 144C(1) r.w.s 143(3) of the Act dated 16/08/2012 the total income has been assessed at Rs. 1,64,00,800/-. Apart from assailing the addition made to the returned income, the assessee company has raised an Additional Ground of appeal which read as under:- On the facts and in the circumstances of the case and in law, the Appellant submits that the impugned assessment order dated 16 August 2012 passed by the learned Assessing Officer under Section 143(3) read with Section 144C(13) of the Income-tax Act, 1961, i....
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....-existent assessee as on the date of passing of such assessment order and, therefore, the assessment order is voidab- initio. It has also been pointed out that after passing of the draft assessment order under section 144C(1) of the Act dated 22/11/2011 assessee had raised objections before the DRP also wherein, the fact of the merger stood disclosed. For this, reliance has been placed on the decision of the Mumbai Tribunal in the cases of Ambuja Cement Rajasthan Ltd., WTA No.11/Mum/2014 dated 24/02/2016 and M/s. Instant Holdings Ltd., ITA No.4593/Mum/2011 dated 09/03/2016 wherein, under similar circumstances, the assessment orders passed in the name of non-existent assessees have been quashed. In support, reliance has also been placed on the judgment of the Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani & Anr., Writ Petition No.1069 of 2016 dated 08/06/2016, wherein it has been held that framing of assessment in respect of a non-existent entity goes to the root of the jurisdiction of the Assessing Officer and an order passed in the name of non-existent assessee is untenable in the eyes of law. 7. The Ld. Departmental Representative has not controverted a....
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....amalgamated company w.e.f. 1.7.2003. The return so filed was picked up for scrutiny assessment vide notice u/s. 143(2) of the Act dated 18.10.2003 in the name of M/s. Spice Corp Ltd., i.e., the amalgamating company. In the course of assessment proceedings, the factum of M/s. Spice Corp Ltd. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating company. In this factual background, the plea raised by the assessee before the Hon'ble High Court was that the assessment was framed against a non-existing entity as M/s. Spice Corp Ltd. had already amalgamated with M/s. MCorp Private Ltd., and therefore, the assessment order dated 28.3.2005 suffered from a jurisdictional defect. In that case, the Tribunal had taken a view that the action of the Assessing Officer in framing assessment in the name of M/s. Spice Corp Ltd. even after the said entity stood dissolved consequent upon its amalgamation with M/s. MCorp Private Ltd. w.e.f. 1.7.2003 was a mere procedu....
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.... the Assessing Officer on M/s Software & Silicon Systems India Pvt. Ltd., after being intimated about the merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against the said company and null and void ? (2) Whether the Tribunal was correct in holding that the provisions of section 292B of the Act will not make the assessment valid as a defect/omission to incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and purpose of this Act ? (3) Whether the Tribunal has to examine the matter on merits and record finding on the controversy raised before it both by the revenue as well as the assessee in their separate appeals ?" 11. To the similar effect are the judgements of the Hon'ble Delhi High Court in the case of Dimensions Apparel Pvt. Ltd. and Micra India Pvt. Ltd. (supra). Apart therefrom, the judgement of the Hon'ble Calcutta High Court in the case of I.K. Agencies (P) Ltd. v. Commissioner of Wealth Tax, 347 ITR 664 also supports the proposition sought to be canvassed by the assessee before us. In sum and substance, it is s....