2022 (2) TMI 1377

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...., Chennai in F.No.DRP/CHE/05/2013, directions dated 28.11.2013 for the assessment year 2009-10 vide order dated 16.01.2014. 2. At the outset, ld.counsel for the assessee drew our attention to additional grounds raised vide letter dated 25.01.2016. He referred the following additional grounds:- (i) The impugned order, u/s.143 r.w.s 144C of the Income Tax Act, 1961 dated 16.01.2014 on the dissolved Company M/s. Rieter LMW Machinery Limited, is opposed to law and ab initio void. (ii) The learned DRP, ought to have quashed the draft order of the TPO, as the company stood dissolved with effect from 01.04.2012, as per the order of the Hon'ble High Court of Madras dated 26th day of April 2013, a copy of which position was brou....

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....that of the DRP and nothing new is to be brought on record or nothing new is to be adjudicated. Once the facts are available on record of the assessment, the issue being a jurisdictional issue goes to the root of the matter, the additional ground should be admitted at the very first instance and this should be decided first. 4. Per contra, the ld.CIT-DR opposed the admissibility of additional grounds for the reason that this issue was before the AO and the DRP and assessee has specifically raised this issue before DRP during the course of adjudication proceedings vide its letter dated 22.07.2013, whereas the directions of DRP was passed only on 28.11.2013 and in consequence to the same assessment was framed vide order dated 16.01.2014. A....

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.....33 of 2013 dated 26.04.2013. We noted that the TPO passed order in the name of M/s. Reiter LMW Machinery Ltd., having PAN No.AABCR 0309M vide order dated 28.01.2013. The AO passed draft assessment order on a non-existent company i.e., M/s. Reiter LMW Machinery Ltd vide order dated 08.02.2013. The proceedings before DRP started vide its notice issued u/s.144C(11) dated 08.07.2013, which was replied by the assessee vide letter dated 22.07.2013 (which is placed on record) and the relevant text of the letter reads as under:- "We are in receipt of your notice dated 8th July, 2013 dispatched on 15.07.2013 and redirected by Post office and delivered to us on 22.07.2013 to attend hearing on 22.07.2013. Please note that M/s. LMW M....

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....e case law cited by ld.counsel for the assessee of Hon'ble Supreme Court in the case of Maruti Suzuki India Limited, supra. 9. We noted that the assessment order was passed by ACIT, Company Circle 4(2), Coimbatore u/s.143(3) r.w.s. 144C of the Act, dated 16.01.2014 is the base order which was passed on nonexistent company, the subsequent proceedings all will not survive in view of the decision of Hon'ble Supreme Court in the case of PCIT vs. Maruti Suzuki Ltd, 416 ITR 613. The Hon'ble Supreme Court held that "notice u/s.143(2) under which jurisdiction was assumed by the Assessing Officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a proce....