TaxTMI 
TaxTMI 
2020 (8) TMI 599
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.... circumstances of the case and in law, the learned TPO erred and the Hon'ble DRP further erred in upholding / confirming the action of the learned TPO in rejecting all the seven functionally comparable companies selected by the Appellant without pointing out any deficiency in the detailed benchmarking analysis conducted by the Appellant in its transfer pricing report ('TP report'). 3. On the facts and in the circumstances of the case and in law, the learned TPO erred and the Hon'ble DRP further erred in upholding / confirming the action of the learned TPO in cherry picking additional companies without considering the detailed submission filed by the Assessee in support of rejection of the alleged comparable companies. 4. On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in rejecting the Appellant's contention to exclude Kitco Ltd. and TCE Consultation Engineers Ltd. from the set of alleged comparable companies selected by the learned TPO. 5. On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in rejecting the Appellant's contention to grant the working capital adjustment / other ....
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....s of the case and in law, the learned AO erred in initiating penalty proceedings under section 271(1)(c) of the Act. The Appellant prays that the penalty proceedings may please be dropped. 12. The Appellant submits that the above grounds are independent and without prejudice to one another. 13. The Appellant craves leave to add, alter, amend or withdraw all or any of the grounds of appeal herein above and to submit such statements, documents and papers as may be considered necessary either at or before the hearing of this appeal as per the law." Apart from that, the assessee has raised an additional ground of appeal before us, which reads as under: "On the facts and in the circumstances of the case, and in law, without prejudice to the earlier grounds, the learned Assessing Officer (AO) has erred by assuming jurisdiction and issuing notice u/s 143(2) of the Income tax Act, 1961 (the Act) to a non-existent company, i.e Siemens Power Engineering Private Limited ('SPEL'), even after the AO was informed that SPEL has been amalgamated as a result of approved scheme of amalgamation with Siemens Limited with effect from 1st October 2011 and ceased to exist as on the date of issuanc....
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.... odds with the legal principle that the amalgamating entity had ceased to exist upon the approved scheme of amalgamation, the participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. Accordingly, it was submitted by the ld. A.R that participation by the assessee in the assessment proceedings would not validate the assessment which was framed de hors issuance of a notice u/s 143(2) to the amalgamated company. 2. We have heard the authorized representatives for both the parties on the issue pertaining to the admission of the aforesaid additional ground of appeal. In our considered view, the assessee by raising the aforesaid additional ground of appeal has sought an adjudication of a legal issue on the basis of the facts already borne on record. In other words, the adjudication of the legal issue raised by the assessee would not require looking into any such fact which is not available on record. As submitted by the ld. A.R, the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT (1998) 229 ITR 383 (SC), had observed, that the Tribunal has jurisdiction to examine a question of law which arises from the ....
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....urse of the assessment proceedings the A.O referred the matter u/s 92CA(1) to the Transfer Pricing Officer (for short "TPO") for determining the Arm's Length Price (for short 'ALP') of the International transactions of the assessee. The TPO vide his order passed u/s 92CA(3),dated 08.01.2016 proposed an adjustment of Rs. 11,88,37,454/- as regards the international transactions entered into by the assessee with its AEs. After receiving the order passed by the TPO u/s 92CA(3), dated 08.01.2016, the A.O passed a draft assessment order u/s 144C(1) r.w.s 143(3), dated 28.03.2016, proposing to assess the income of the assessee at Rs. 26,74,77,219/-. The assessee objected to the draft assessment order before the Disputes Resolution Panel-2, Mumbai (for short 'DRP'). However, the DRP after deliberating on the objections raised by the assessee was not inclined to accept the same, and vide its order passed u/s 144C(5), dated 29.11.2016, except for taking cognizance of the claim of the assessee as regards an arithmetical error in the computation of the adjustments carried out by the TPO, found no infirmity in the additions/disallowances proposed by the A.O in his draft assessment order. The A.....
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....ce u/s 143(2), dated 07.08.2013 was the solitary notice issued to the assesse, the ld. A.R took us through the assessment order. In the backdrop of the aforesaid facts, it was submitted by the ld. A.R that in absence of any notice u/s 143(2) having been issued by the A.O to the amalgamated company viz. M/s Siemens Limited, PAN No. AAACS0764L, the assessment framed u/s 143(3) r.w.s 144C(13), dated 30.01.2017 was null and void. To sum up, it was the claim of the ld. A.R that de hors issuance of a valid notice u/s 143(2) to the amalgamated company viz. M/s Siemens Limited, PAN No. AAACS0764L, the assessment framed in the latters hand could not be sustained and was liable to be struck down. In support of its aforesaid contention the ld. A.R had relied on the judgment of the Hon'ble Supreme Court in the case of Pr. CIT Vs. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC). Taking us through the said judicial pronouncement, it was submitted by the ld. A.R that in the said case also the A.O despite having been intimated on 02.04.2013 about the amalgamation of the assessee company, had thereafter issued the notice u/s 143(2), dated 26.09.2013 in the name of the amalgamating company, which t....
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.... that the assessee had vide letters dated 04.05.2013 and 14.05.2013 had informed the A.O i.e DCIT, Circle-2, Gurgaon, that pursuant to the orders of the High Court of Punjab & Haryana dated 23.11.2012, and that of the High Court of Bombay dated 02.11.2012, issued under Sec. 391 to Sec. 394 of the Companies Act, 1956, it was with effect from 01.10.2011 amalgamated with M/s Siemens Limited, PAN No. AAACS0764L, Registered office: 130, Pandurang Budhkar Marg, Worli, Mumbai. Also, it is a fact borne from the record that the assessee vide its letter dated 14.05.2013 addressed to the Commissioner of Income-tax, Gurgaon, had brought the aforesaid fact of its amalgamation with M/s Siemens Limited, PAN No. AAACS0764L to his notice, alongwith a request that its case may be transferred to the Commissioner of Income-tax-Range-7,Mumbai, who exercised the requisite jurisdiction over the case of the amalgamated company i.e M/s Siemens Limited. Despite having been informed about the fact that the assessee company pursuant to the orders of the High Court of Punjab & Haryana dated 23.11.2012, and that of the High Court of Bombay dated 02.11.2012, issued under Sec. 391 to Sec. 394 of the Companies Ac....
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....te participation on part of the assessee, but then, the same does not save complete absence of notice. It was concluded by the Hon'ble Apex Court that Sec. 292BB only seeks to cure the infirmities in the manner of service of notice, and is not intended to cure complete absence of notice itself. 9. In the backdrop of the aforesaid settled position of law, we shall now look into the repercussions of non-issuance of a notice u/s 143(2) by the A.O to the amalgamated company on the validity of the assessment therein framed. It is not the case before us that the A.O had issued a notice u/s 143(2) in the name of assessee i.e the amalgamated company, the validity of which is assailed by the assessee on the ground of an improper service of the same. Admittedly, as observed by us hereinabove, no notice u/s 143(2) was ever issued by the A.O in the name of the amalgamated company, viz. M/s Siemens Limited, PAN No. AAACS0764L. As per the records, the revenue cannot be allowed to canvas that the fact that the assessee company pursuant to the orders of the High Court of Punjab & Haryana dated 23.11.2012, and that of the High Court of Bombay dated 02.11.2012, issued under Sec. 391 to Sec. 394 of....
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....ise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity." (Emphasis supplied by us) In fact, we find that the Hon'ble Supreme Court in the case of CIT Vs. M/s Spice Infotainment Ltd. (Civil appeal No....