TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1803
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....'ACIT/ ITO/ AO') for the A.Y. 2003-04 vide order dated 20.12.2011 under section 143(3) of the Income Tax Act, 1961 (hereinafter 'the Act'). 2. The first issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in framing assessment on a non-existing entity. For this assessee has raised the following ground No. 1: - "1. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) [CIT(A)] has erred in rejecting the ground that the impugned assessment order passed on a non-existent entity, i.e. Siemens Building Technologies Private Limited, a company which ceased to exist from 1 October 2003, arising out of merger with Siemens Limited with effect from ....
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....place, there is no infirmity in the order. Further, such issues have been taken care of by the provisions of sec 292B." Aggrieved, now assessee is in second appeal before Tribunal 4. Before us, the learned Counsel for the assessee stated the fact that Siemens Technologies Limited (SBT) merged with Siemens Limited with effect from 01.10.2003 and thus SBT has ceased to exist from 01.10.2003 on account of merger. According to the learned Counsel, once SBT has become non-existent, the AO cannot be passed the order in the name of the Successor Company i.e. Siemens Limited but the AO proceeded to assess income of the relevant assessment in the hands of the predecessor company i.e. SBT. He argued that as can be seen that the SBT has merged with ....
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....A)], against all additions / disallowance made in the assessment order dated 23.03.2008. We therefore request you to kindly the said proceedings pending until the disposal of appeal by CIT(A). Before proceedings in the matter please give us a personal hearing." 6. The learned Counsel for the assessee stated that the AO while framing assessment of set aside order by the ITAT and framed assessment under section 144C(1) read with section 143(3), read with section 254 of the Act dated 20.12.2011 despite the fact that information regarding merger was available with the assessing officer. The learned Counsel for the assessee first of all relied on the decision of Hon'ble Bombay High court in the case of Jitendra Chandralal Navlani & Anr.....
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....this Tribunal observed in para 8 and 8.1 as under: - "8.1 Considering the entirety of facts and circumstances of the case, we set aside the action of the Assessing Officer in framing the impugned assessment against the Siemens Corporate Finance Pvt. Ltd. on 16/08/2012, because on the said date, it was a non-existing concern on account of its amalgamation with Siemens Technology and Services Pvt. Ltd. w.e.f. 01/10/2011 following the scheme of amalgamation approved by the Hon'ble Bombay High Court on 26/08/2011(supra). As a consequence, the assessment order dated 16/08/2012 is held to be as invalid and void-ab-initio. Since we have upheld the preliminary plea of the assessee, which goes to the root of the jurisdiction and the assessment....
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....he AO has mechanically accepted the adjustment made by the TPO." 9. The AO in another round passed an order under section 144(c)(1) read with section 143(3) read with section 254 of the Act vide order dated 20.12.2011. Similarly, in the name of Siemens Technologies Limited. We find from the facts of the case that even this fact was before CIT(A) in the first round of the order and in that order dated 23.01.2008 in appeal No. CIT(A)-XXXII/IT-135/07-08 of PB 79 at para 5.7 and the relevant portion of the Para reads as under: - "5.7 First of all, I am not in agreement with the appellant that Net Profit Margin has been affected due to change in accounting policy on account of its merger with M/s Siemens Ltd. during the current year. The fact....