TaxTMI 
TaxTMI 
2019 (10) TMI 1292
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....on Panel ("Hon'ble DRP") and computing the total income of the Appellant for Assessment Year ("AY") 2010-11 at Rs. 35,60,31,878 as against the returned income of Rs. 24,07,36,549. 2. On the facts and in law, the Ld. AO erred in proposing and the Hon'ble DRP further erred in confirming the addition of Rs. 1 1 ,52,95,329 to the Appellant's returned income of Rs. 24,07,36,549. 3. On facts and in law, the Ld. AO erred in making a mistake apparent from record by not granting the working capital adjustment already given to the Appellant by the Ld. TPO in the order dated 29 January 2014 passed u/s 92CA (3) of the Income-tax Act, 1961 ('the Act'). The application filed for rectification u/s 1 54 of the Act by the Appellant before the Ld, AO is pending disposal. 4. On facts and in law, Ld. AO/ Ld. Ld. TPO and the Hon'ble DRP erred in rejecting the economic analysis and filters applied by the Appellant in the Transfer Pricing documentation maintained by the Appellant under section 92D of the Act read with Rule 10D of the Income-tax Rule, 1962 ('the Rules') without providing any cogent reason and arbitrarily applying additional filter....
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.... Ld. TPO and Hon'ble DRP erred in disregarding prior years' data used by the Appellant to benchmark the international transactions in its Transfer Pricing documentation for the year and holding that current year (i.e. Financial Year 2009-10) data for comparable companies should be used despite the fact that the same was not necessarily available to the Appellant at the time of preparing its TP documentation, and grossly misinterpreting the requirement of "contemporaneous" data in the Rule 10B(4) of the Rules, 1962 to necessarily imply current year data, thereby breaching the principles of natural justice and "impossibility of performance. 12. On facts and in law, the Appellant submits that the impugned assessment order passed by the learned AO is bad in law as Siemens Power Engineering Limited has ceased to exist on the date of the impugned order on account of its merger with Siemens Limited with effect from 1 January 2012, thereby the entire assessment proceedings be regarded to be void ab initio." We find that adjudication of Ground No.12 is very crucial as it goes to the root of the matter as it would have a strong bearing on adjudication of other grounds rai....
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.... of Income Tax Range-7, Mumbai through the Additional commissioner of income Tax, Range-7(2), Mumbai through the Dy. Commissioner of Income Tax, Range - 7(2), Mumbai. It was requested by the assessee in the said letter to transfer the pending matters relating to the assessee to the above mentioned jurisdiction of Siemens Ltd., This letter is enclosed in pages 504 and 505 of the paper book. Copy of this letter was also marked to the following persons:- (a) DCIT Cirlce-2, Gurgaon (b) Chief Commissioner of Income Tax-Range (II), Mumbai (c)Commissioner of Income Tax - 7, Mumbai (d) Additional Commissioner of Income Tax - Range - 7(2), Mumbai (e) DCIT, Range-7(2), Mumbai 14 6/8/2013 Letter written by the authorised representative of the assessee to JDIT TPO-II(2), New Delhi in the name of Siemens Ltd., (successor of SPEPL) with PAN No.AACCS5323F in connection with transfer pricing assessment proceedings for A.Y.2010-11 15 07/08/2013 Date of issue of notice u/s.143(2) for A.Y.2012-13 in the name of SPEPL at Gurgaon address which was served on assessee on 14/08/2013 16 21/8/2013 Letter filed by the assessee to ACIT, Circle-2, Gurgaon intimating th....
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....CIT Circle-2, Gurgaon that it's case has been tranferred to Circle-2, Gurgaon to Circle-7(2)(1), Mumbai pursuant to the order passed by the ld. Commissioner of Income Tax- Faridabad u/s.127(2) of the Act in F NoCIT/FBD/127/09/2014-15 dated 28/08/2014. It was also pleaded in the said letter that the relevant records and files for A.Y.2012-13 may kindly be transferred to the Jurisdictional Assessing Officer in Mumbai 29 27/11/2014 Date of Directions of ld. DRP-3, New Delhi u/s.144C(5) of the Act in the name of SPEPL for A.Y.2010-11 30 31/12/2014 Date of order u/s.92CA(3) of the Act by TPO Mumbai in the name of SPEPL (merged with Siemens Ltd.) for A.Y.2011-12 31 8/1/2015 Date of issue of fresh notice u/s.142(1) of the Act by ACIT Circle- 8(2)(1), Mumbai to the assessee which was duly served for the A.Y.2010-11 32 28/1/2015 Date of final assessment order passed by ACIT Circle-8(2)(1), Mumbai u/s.143(3) r.w.s. 144C(13) of the Act in the name of SPEPL 33 26/3/2015 Notice issued by Joint Commissioner of Income Tax Transfer Pricing 4(1) Mumbai, issuing notice u/s.92CA(2) of the Act for A.Y.2012-13 to the assessee in the name of SPEPL at Mumb....
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....ions to the ld. AO/ld.TPO vide its directions dated 27/11/2014 in the name of SPEPL. e) We find that the final assessment order pursuant to the directions of the ld. DRP was passed by the ld. AO on 28/01/2015 in the name of SPEPL. 3.2. From the aforesaid facts, it could be safely concluded that the entire proceedings were made in the name of SPEPL, which is a nonexistent entity, as SPEPL stood amalgamated with Siemens Ltd. (SL) with appointed date of 01/10/2011. This scheme of merger was duly approved by Hon'ble Bombay High Court vide its order dated 02/11/2012 and Hon'ble Punjab and Haryana High Court vide its order dated 23/11/2012. All these facts of merger together with the relevant documents of approval by the Hon'ble High Courts were duly placed before the lower authorities and despite the same, the orders were passed in the name of SPEPL, which is a non-existent entity. 3.3. The ld. DR placed reliance on the decision of Hyderabad Tribunal in the case of Cyient Ltd. vs. DCIT in ITA Nos. 1052 to 1054/HYD/2016 dated 29/12/2017 and the decision of Bangalore Tribunal in the case of Corio India Infotech Services P. Ltd. vs DCIT in IT(TP) No.1221/BANG/2011 dated 23/0....
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.... other hand. It is of relevance to refer to Section 292B of the Income Tax Act which reads as follows: "292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B. In this context, it is necessary to advert to the provisions of Section 170 which deal with succession to business otherwise than on death. Section 170 provides as fo....
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....bmitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment. 32. On behalf of the Revenue, reliance has been placed on the decision of this Court in CIT v. Jai Prakash Singh [1996] 85 Taxman 407/219 ITR 737. That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessmen....
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....essing officer. Similarly, the decision in Maharaja of Patiala (supra) was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court ....