2023 (4) TMI 690

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....ferred to as "the Act") as per the grounds of appeal on record. 2. In this case, the assessee has raised both grounds on merits as well as legal grounds. First we would be adjudicating the legal ground and if therein the assessee succeeds all other grounds on merits shall become academic in nature. The legal ground raised as an additional ground of appeal is as follows: "On the facts and in the circumstances of the case and in law, the transfer pricing order dated 26.01.2021 under section 92CA(3) of the Act, draft assessment order dated 30.03.2021 under section 143(3) read with section 144C of the Act and DRP directions dated 20.12.2021 under section 144C(5) of the Act passed/issued in the name of 'Berco Undercarriages India....

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.... of the Act and draft assessment order dated 30-3-2021 u/s 143(3) r.w.s. sec. 144C of the Act were still passed in the name of erstwhile company which was before amalgamation i.e. in the name of M/s. Berco Undercarriages India Pvt. Ltd. which was not in existence as on the date of passing of the said orders. That, both the A.O and the T.P.O though aware of the fact of amalgamation which is evident from the fact that the same is noted in the body of T.P.O‟s order as well as draft assessment order, still the respective orders have been passed in the name of M/s. Berco Undercarriages India Pvt. Ltd., a non-existent entity at that point of time. The assessee filed objections before the ld. D.R.P against draft assessment order in the name ....

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.... entity that had emerged after the said amalgamation is M/s. Rothe Erde (I) Pvt. Ltd. Admittedly, the incident of amalgamation dated 25-10-2018 has been communicated by the assessee to the department. Inspite of that, the TP.O passed order dated 26-1-2021 which was passed in the name of M/s. Berco Undercarriage India Pvt. Ltd. which was not in existence on the date of passing of the said order. Similarly, the draft assessment order also dated 30- 3-2021 was again passed in the name of M/s. Berco Undercarriage India Pvt. Ltd. which was a non-existent entity at that relevant point of time. Even the ld. D.R.P had issued directions dated 20-12-2021 again in the name of M/s. Berco Undercarriage India Pvt. Ltd. a non-existent entity as on the dat....