TaxTMI 
TaxTMI 
2017 (12) TMI 652
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.... the hearing or appeal." 2. The grounds raised by the assessee in its cross objections are following: "1. That on the facts and in the circumstances of the case and in law, the CIT(A) erred in upholding the orders of the Assessing Officer (AO) / Transfer Pricing Officer (TPO) which were arbitrary, bad in law and / or void ab initio. 1.1. That on the facts and circumstances of the case and in law, the AO / TPO have grossly erred in passing the order under section(s) 143(3) / 92CA of the Act, on non-existent (amalgamated) entity, namely, Heartland Delhi Transcription & Services Private Limited. Further, CIT(A) erred in upholding such order(s). 2. That that CIT(A) erred on facts and in law in upholding the action of the AO, in invoking the provisions of Chapter X - Special Provisions relating to avoidance of tax of the Act, without appreciating that there would have been not profit shifting from India. 3. That the CIT(A) erred on facts and in law in upholding the order of the AO / TPO in modifying filters and / or comparables' set adopted by the Assessee in its transfer pricing study. 4. That the CIT(A) erred on facts and in law in uphol....
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....e addition made by the AO on account of Transfer Pricing Adjustment amounting to 1,54,79,764/- and deleted the disallowance of deduction u/s 10A of the Act amounting to Rs. 2,28,87,852/-. 6. Now the Department is in appeal against the relief allowed and the assessee has filed the cross objection challenging the validity of the assessment order passed by the AO on the non-existent (amalgamated entity) namely M/s Heartland Information and Consultancy Services Pvt. Ltd. The learned counsel for the assessee submitted that the assessee company was amalgamated with M/s Heartland Information and Consultancy Services Pvt. Ltd., Bangalore (HICS) and in this regard letter dated 19th October, 2008 was filed with the AO informing him that pursuant to the order dated 25.07.2008 of the Hon'ble High Court at New Delhi, M/s Heartland Delhi Transcription and Services Pvt. Ltd. (HDTS) has amalgamated with M/s Heartland Information and Consultancy Pvt. Ltd. (HICS), a certified copy of the order of the Hon'ble Delhi High Court was filed with the Registrar of companies on 17th September, 2008. It was stated that M/s HDTS has ceased to exists i.e. dissolved without binding up and HICS has taken over ....
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....ioner of Income Tax-12 New Delhi and Commissioner of Income Tax - 4, New Delhi vide separate letters each dated 19th October, 2008 copies of which are placed at page 900 to 907 of the assessee's paper book and order of the Hon'ble Delhi High Court dated 25th July, 2008 for the aforesaid amalgamation is placed at page no. 908 to 918 of the assessee's paper book. It is also noticed that the AO referred the matter u/s 92 CA of the Act of the amalgamated company M/s (HDTS) to the TPO who passed the order dated 25.10.2010 on the aforesaid entity. The AO also passed the assessment order dated 22.2.2011 u/s 144C / 143(3) of the Act on the aforesaid entity i.e. HDTS which amalgamated in HICS, therefore, it is crystal clear that the entity M/s (HDTS) was not in existence when the TPO as well as the AO passed their respective order. 9. On a similar issue, the ITAT Delhi Bench I-1, New Delhi having the same combination passed a detailed order authored by the AM in the case of Maruti Suzuki India Ltd. vs. Dy. CIT reported in (2016) 72 taxmann.com. 164. and the relevant findings have been given as under:- "10. We have considered the submissions of both the parties and carefully gone....
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....be initiated, M/s Spice got amalgamated with M Corp Pvt. Ltd. It was the result of the scheme 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 le 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 of this Court. With the dissolution of this company, its name was struck off from the rolls 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 procedu....
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....t apply to a case of amalgamation. The language of section 159 evidently only applies to natural persons and cannot be extended through a legal fiction, to the dissolution of companies. Once it is found that assessment is framed in the name of non-existing entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of section 292B. Participation by the amalgamated company in assessment proceedings would not cure the defect because "there can be no estoppels against law." 15. In the present case also when the assessment was framed by the AO vide order dated 29.12.2015 in the name of M/s Suzuki Powertrain India Ltd., the said company had already amalgamated with M/s Maruti Suzuki India Ltd. and therefore, it was not inexistence. Moreover, it is clear from the provisions of Section 170(2) of the Act that in the case of amalgamation, the assessment must be made on the successor i.e. the amalgamated company and not on the predecessor i.e. amalgamating company. Therefore, in the present case, the assessment framed by the AO vide order dated 29.12.2015 on the amalgamating company i.e. M/s Suzuki Powertrain India Ltd. which was....