AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 825
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....is primarily engaged in the business of importing buying and selling and distributing wide range of mobiles phones in India and providing related post sale support services. Since the assessee had undertaken international transaction with its AEs, the Assessing Officer referred the matter to the TPO for determination of the ALP of the international transaction entered into by the assessee with its AE. The TPO determined an upward adjustment of Rs. 56,30,78,638/- . The assessee approached the DRP who declined to interfere with the transfer pricing adjustment made by the Assessing Officer. The assessee approached the Tribunal and Tribunal gave some part relief against which the assessee as well as revenue approached the Hon'ble Delhi High Court. The Hon'ble High Court in ITA No. 638/Del/2015 filed by assessee and ITA No. 614/Del/2015 filed by the revenue vide order dated 28.01.2016 restored the matter to the file of the Tribunal with certain directions. Hence, this is the second round of litigation before the Tribunal. 3 The grounds raised by the assessee are as under :- 1. On the facts and circumstances of the case and in law, the assessment order/directions passed by th....
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....ed to determine any excessive/non-routine AMP expenses? 9. Without prejudice, even if expenses are held to be 'non-routine', whether any compensation was required from the AE considering that the purported benefit caused to the AE on account of incurring of A&M expenses by the Appellant was only incidental? 10. Whether 'sales promotion expenses' could partake the character of AMP expenses for the purposes of making any adjustment on account of alleged excessive AMP expenses? 11. Whether the AO/TPO/DRP erred in concluding that the non-routine functions (being the alleged excessive AMP expenditure) amounted to a 'service' being rendered by the Appellant to its AE and that a mark-up was required to be charged in respect of such services? 12. Without prejudice, even if AMP expenses are held to be a separate transaction, whether AMP should be benchmarked along with the main transaction of import and distribution of goods under the combined transaction approach. 13. That on the facts and circumstances of the case and in law, the AO/DRP erred in holding that the Appellant has furnished inaccurate particulars of income in respect of each item of....
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.... company has now merged with Sony India Private Limited, the Assessing Officer has passed the final order in the old name i.e. a nonexistent company. 8. Referring to the sequence of events the Ld. Counsel for the assessee drew the attention of the Bench to the following dates which are crucial. S. No. Date Particulars Documents Reference 1. 18 April 2012 Change in the name of the entity from 'Sony Ericson Mobile Communications ( India) Private Limited' to 'Sony Mobile Communications (India) Private Limited' Certificate of incorporation Annexure 1 2. 23 July 2013 Merger of 'Sony Mobile Communications India Private Limited' with 'Sony India Private Limited' effective 01 April 2013 High Court order approving the scheme of amalgamation Page 1 of additional evidence filed for ASSESSMENT YEAR 2009-10 3. 31 August 2013 ROC intimation about the merger Form No. 21 filed with Registrar of Companies on MCA portal vide SRN No. B 83215905 Annexure -2 4. 06 December 2013 Letter to the Department informing the fact of amalgamation to Sony Mobile Communications India Pvt. Ltd. to Sony India Private Limited Co....
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....7, he drew the attention of the Bench to the question framed and admitted by the Hon'ble High Court which reads as under :- Did the ITAT misapply the provisions of Section 170 92) of the Income Tax Act in the circumstances of the case, while concluding that the assessment order was not tenable for having been framed in the name of the non-existence company." 12. Referring to the said order, he submitted that the Hon'ble High Court following the decision in the case of Spice Entertainment Ltd. (supra), decision of the Hon'ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. Vs. CIT reported in 186 ITR 278 and various other decisions has dismissed the appeal filed by the Revenue and upheld the order of the Tribunal where the Tribunal has quashed the assessment on the ground that the same was passed in the name of the entity that seized to exist on the date of assessment order. 13. He accordingly submitted that since the assessment has been framed on a non-existent company, therefore, the same being not valid has to be quashed. 14. The Ld. DR on the other hand strongly opposed the arguments advanced by Ld. Counsel for the assessee. He submitted that t....
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....ore us. We find that the assessee filed its return of income in the name of M/s. Sony Ericsson Mobile Communications (India) Private Limited on 05.10.2010. The name of the company was changed to M/s. Sony Mobile Communications (India) Private Limited w.e.f. 18.04.2012. The above company was merged w.e.f. 01.04.2013 with M/s. Sony India Private Limited after the Hon'ble High Court approved the scheme of amalgamation on 23.07.2013. We find on 06.12.2013a letter was addressed to the department informing the fact of amalgamation of M/s. Sony Mobile Communication India Private Limited to Sony India Private Limited. The fact of merger was mentioned in the letter addressed to the department on 17.02.2014. We find the Assessing Officer passed the draft assessment order on 31.3.2014 in the name of M/s. Sony Ericsson Mobile Communications India Private Limited. We find on 30.04.2014, the assessee filed a letter to the department in response to department's allegations that no intimation about merger was made. We find the DRP in its order dated 21.10.2014 mentioned the name of the assessee as M/s. Sony Mobile Communications India Private Limited (now merged with Sony India Private Limited). F....
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.... an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not be made on a invalid return. In the process, the Court observed as under:- "Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a return would not be treated as invalid, if the same "in substance and effect is in conformity ....
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....e Revenue and allow these appeals. 18. We may, however, point out that the returns were filed by M/s Spice on the day when it was in existence it would be permissible to carry out the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice under Section 143 (2) of the Act. In these circumstances, it would be incumbent upon the AO to first substitute the name of the appellant in place of M/s Spice and then issue notice to the appellant. However, such a course of action can be taken by the AO only if it is still permissible as per law and has not become time barred." 18.1 We find the SLP filed by the Revenue in the case of Spice Entertainment Ltd. (supra) has been dismissed by the Hon'ble Supreme Court vide Civil Appeal No.285 of 2014 order dated 02.11.2017. 18.2. We find the Hon'ble Delhi High Court in the case of CIT vs. Dimension Apparels (P.) Ltd. reported in 370 ITR 288 following its earlier decision in the case of Spice Entertainment Ltd. (supra) has observed as under :- "19. The question of whether an assessment upon an amalgamated company is a mistake within the meaning of Section 292B was r....
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....g (P.) Ltd. (supra) had also reached the same conclusion. 23. It is thus clear that all contentions sought to be urged by the revenue are in respect of familiar grounds, which have been ruled upon, against it, consistently in two decisions of this court. Therefore, no substantial question of law arises in this appeal. 24. Accordingly, there is no merit in the appeals; they are accordingly dismissed along with the pending applications without any order as to costs." 19. The various other decisions relied by the Ld. Counsel for the assessee also support his case. So far as the various decisions relied by the Ld. DR are concerned these decisions in our opinion are distinguishable and not applicable to the facts of the present case. Since the final assessment in the instant case has been made on a non-existent company, therefore, following the decisions cited (supra) we hold that the assessment framed by the Assessing Officer on a non-existent company is a nullity in the eyes of law and void and the provisions of section 292 B cannot rescue the department. Therefore, the order is unsustainable and accordingly the same is quashed. The additional ground raised by the....