TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1292
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....otal 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 filters. 5. On facts and in law, the Ld. TPO/ Ld. AO and the Hon'ble ....
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....ational 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 raised before us. Accordingly, we proceed to adjudicate the ground No.12 above being the preliminary legal issue. 3. We have hear....
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....etter 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 the fact that SPEPL is merged with Siemens Ltd., (SL) w.e.f. 01/10/2011. 17 21/8/2013 Letter written by the assessee i.e. SPEPL (successor in interest to Siemens Ltd.,) to ACIT - Circle-2, Gurgaon clearly intimating the name of the assessee....
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....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 Mumbai address 34 28/3/2015 Date of passing of draft assessment order by the DCIT 8(2)(1) Mumbai for A.Y.2012-13 u/s.143(3) r.w.s. 144C(1) of the Act in the name of M/s. Siemens Ltd., (successor in interest to SPEPL) 35 10/7/2015 Another hearing notice issued by JCIT, TP-4(1), Mumbai for A.Y.201213 to the assessee in the name of SPEPL at M....
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....d. (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 23/08/2017 in support of his contentions. Per contra, the ld. AR placed reliance on the co-ordinate Bench decision of this Tribunal in group company case of Siemens Technology Services Private Limited vs. ACIT in ITA No.6313/Mum/2012 dated 16/11/2016; in another group company case in the case of Siemens Ltd. vs. ACIT in ITA No.3296/Mum/2015 dated 01/03/2019; decision of Hon'ble Jurisdictional High Court in the case of Jitendra Chandralal ....
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....eturn 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 follows: "170. (1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- (a) the predecessor shall be assesseed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) t....
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.... 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 assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v. CIT [1947] 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sect....
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....me. 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 has relied on the decision in Spice Enfotainment (supra). 34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observ....