TaxTMI 
TaxTMI 
2022 (2) TMI 280
X X X X Extracts X X X X
X X X X Extracts X X X X
....issioner of Income-Tax (Appeals) in so far it is prejudicial to the interests of the appellant is bad and erroneous in law and against the facts and circumstances of the case. 2. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in justifying the action of the assessing officer in passing an order against M/s. Solectron EMS India Ltd. even though the said entity does not exist on the date of the passing the order. 3. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in upholding the action of the assessing officer in passing an assessment order against a non-existing person. 4. That the order u/s. 147 is without jurisdiction. 5. That the learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reight expenditure of Rs. 10,23,619 are expenses incurred by EHTP unit is perverse as not supported by any materials on record and is in fact contrary to the materials on record. 11 That the learned Commissioner of Income Tax (Appeals) ought to have reduced the profits of EHTP unit by a sum of Rs. 45,23,178 (Rs. 34,99,559 + 10,23,619). 12. That the learned Commissioner of Income Tax (Appeals) ought to have reduced the subcontracting charges, travelling expenses and the bank charges from export turnover for the purpose of calculation of deduction u/s. 10B of the Act. 13. That the learned Commissioner of Income Tax (Appeals) ought to have reduced the freight from export turnover while calculating deduction u/s. 10B ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2.1. It was stated that when the assessment order was passed, M/s. Solectron EMS India Ltd. merged with M/s. Centum Electronics Ltd., as per the order of the Hon'ble Karnataka High court by order dated 16.7.2010. Therefore, the appeals were filed in the name of Centum Electronics Ltd. When the matter stood thus, the Ld. DCIT, Circle 11(2), Bangalore issued notice/s 148 of the Act to M/s. Centum Electronics Ltd. M/s. Centum Electronics Ltd. filed a letter dated 25.3.2013 wherein it was stated that the return in response to sec. 148 has been filed on 20/03/2013. It also sought a copy of the recorded reasons. The Ld. AO furnished the copy of the recorded reasons vide his letter dated 3.4.2013. M/s. Centum Electronics Ltd. filed its obje....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Solectron EMS India Ltd. The facts stated above prove that M/s. Solectron EMS India Ltd. does not exist as an entity w.e.f. 1.4.2009 being the appointed date as per the decision of the Hon'ble Karnataka High Court dated 16.7.2010. He submitted that it is now well settled that assessment order cannot be passed in the name of amalgamating/transferor-company. The Ld. AR has relied on the following decisions: a) Marshall Sons & Co. (India) ltd. Vs. ITO reported in 223 ITR 809 (SC) b) CIT & Another Vs. Intel Technology India (P) Ltd. reported in 380 ITR 272 (Kar) c) Principal CIT Vs. Nokia Solutions & Network India Pvt. Ltd. reported in 402 ITR 21 (Del) d) Emerald Company Ltd. Vs. ITO reported in 46 IT....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me of merged company, the Ld. AR referred to paragraph No. 1 of the order of the Hon'ble Delhi High Court in case of Spice Infotainment Ltd(supra) and, therefore, submitted that the impugned assessment order does not stand the test of the law. Hon'ble Court also held that mere participation in assessment proceedings by the appellant would be of no effect as there is no estoppel against law. 3. We have perused the submissions advanced by both sides in light of records placed before us. We find that the 'Solectron EMS India Ltd.,' was merged with 'Centrum Electronics Ltd' vide order of the Hon'ble Karnataka High Court dated 16/07/2010, wherein the scheme of merger under sections 391 to 394 of the Companies....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cts remains that the assessment order has been passed by the assessing officer in the name of a nonexistent company. Hon'ble Supreme court held as under:- "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 ....