TaxTMI 
TaxTMI 
2022 (9) TMI 1113
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovisions of section 115JB of the I.T.Act. After considering the taxes deducted at source, the assessee had claimed refund of INR 4,68,29,020 in the return of income. 3. The return of income was selected for scrutiny and notice u/s 143(2) of the I.T.Act was issued. During the course of assessment proceedings, reference was made to the Transfer Pricing Officer (TPO) for determination of Arm's Length Price ("ALP") of international transactions with its AE's. The TPO passed order u/s 92CA(3) of the I.T.Act (order dated 19.01.2021) proposing TP adjustment of Rs.2,31,00,871 on interest on delayed trade receivables. The AO issued the Draft Assessment Order ("Draft Order") dated 23.04.2021 as per the provisions of section 143(3) read with section 144C of the I.T.Act incorporating the TP adjustment proposed by the TPO. 4. Aggrieved, the assessee filed objections before the Dispute Resolution Panel (DRP). The DRP granted partial relief to the assessee. Consequent to the DRP's directions, the TP adjustment of Rs.2,31,00,871 was reduced to Rs.1,10,31,130. Further, the DRP also directed the AO to set off the TP adjustment with the brought forward losses as provided in the CFL Schedul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ring to the various submissions filed by the Appellant with respect to the merger of BRL with the Appellant and passing the order without any application of mind which is in violation of law. 3.4 the Order passed by the Ld. AO is beyond jurisdiction and should be quashed as the learned AO has no jurisdiction to pass the assessment order assessing the income of a non-existent entity. 3.5 the assessment is bad in law as the same is on a non-existent entity and is void ab initio Grounds relating to Transfer Pricing matters 4. Adjustment on account of imputation of notional interest on outstanding receivables from Associated Enterprises Without prejudice to the ground 3 above, the Ld. AO/ TPO/ DRP has erred, in law and on facts: 4.1 in making an addition of INR 1,10,31,130 to the total income of the Appellant on account of notional interest imputed on outstanding receivables from Associated Enterprises ("AEs"). 4.2 in considering the outstanding dues from AE to be in the nature of loan and not considering the business/commercial expediency of the arrangement. 4.3 in treating the outstanding dues from AE as a separa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ising due to disallowance of foreign exchange loss on fixed assets. The Appellant submits that each of above grounds is independent and without prejudice to one another. The Appellant craves leave to add, alter, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal, so as to enable the Hon'ble Tribunal to decide on the appeal in accordance with the law." 7. The learned AR submitted that the assessment has been completed on a non-existing entity, inspite of repeated intimation to the Assessing Officer, and therefore, the same is bad in law. In this context, the learned AR relied on the following case laws:- (i) Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) (ii) Intel Technology India (P) Ltd. 380 ITR 272 (Kar.) (iii) eMudhra Ltd. v. ACIT (2020) 117 taxmann.com 550 (Kar.) 8. The learned Departmental Representative, on the other hand, relied on the judgment of the Hon'ble Apex Court in the case of PCIT v. Mahagun Realtors (P.) Ltd. reported in (2022) 443 ITR 194 (SC) and the finding of the DRP. 9. In the rejoinder, the learned AR submitted that the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessment order passed on a non-existing company, i.e., the amalgamated company having ceased to exist as a result of approval scheme of amalgamation, is a substantive illegality and void. It was concluded by the Hon'ble Apex Court that this nullity cannot be rectified u/s 292B of the I.T.Act, even if the concerned assessee had participated in the said proceedings. Similar view has been taken by the following judicial pronouncements:- (i) Intel Technology India (P) Ltd. 380 ITR 272 (Kar.) (ii) eMudhra Ltd. v. ACIT (2020) 117 taxmann.com 550 (Kar.) (iii) Spice Enfotainment reported in 247 CTR 500 (SC). 12. The learned DR strongly relied on the judgment of the Hon'ble Apex Court in the case of PCIT v. Mahagun Realtors (P.) Ltd. (supra). In the case of relied on by the learned DR, the assessee, namely, Mahagun Realtors Private Limited (MRPL) was amalgamated with other group companies, i.e., Mahagun India Private Limited (MIPL) with appointed date on 01.04.2006 and the Hon'ble Delhi High Court approved the said scheme on 10.09.2007. The Revenue authorities issued notice on 02.05.2009 for filing the return of income pursuant to a search operation and in re....