TaxTMI 
TaxTMI 
2023 (1) TMI 1359
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.... and the circumstances of the case and in law, the learned Assessing Officer (AO), Ld. Transfer Pricing Officer (Ld.TPO) and the Commissioner of Income-tax (Appeals) (CIT (A)) erred in passing order in the name of "S.S. Oral hygiene Private Limited, an entity which is not in existence on the date of passing the impugned orders on account of its amalgamation with the Appellant. It is the humble prayer of the Appellant that the transfer pricing order, assessment order and CIT (A)‟s order be held as bad in law, illegal, null and void-ab-initio and as such deserves to be quashed. " 03. The petition states as under:- "In this connection, we are enclosing herewith an additional ground of appeal, in triplicate. We have given below our petition for admission of the additional ground before Yours Honours: 1. "S.S. Oral Hygiene Private Limited‟, incorporated on 5 September, 1989, is engaged in the business of manufacturing and sale of toothpaste. 2. With effect from 1 April 2008, "S.S. Oral Hygiene Private Limited‟ (amalgamating company) was amalgamated into "Colgate-Palmolive (India) Limited‟ (amalgamated company or appellant) p....
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..... At the sake of repetition, we crave leave of Your Honours to rely upon the following decisions in support of our plea for admission of additional ground and adjudication of the enclosed additional ground of appeal: Jute Corporation of India Ltd. [187 ITR 688 (SC)] In this case, the Hon'ble Apex Court at page 693, observed as under: "Even otherwise, an appellate authority while hearing the appeal against the order of a subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers, which the subordinate authority may have in the matter. Is the decision, a three-member bench of the Hon'ble Apex Court while discussing the scope of Section 31(3)(a) of the Indian Income-tax Act, 1999, which is almost identical to section 25(1)(a) the Act, observed as under: The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his powers is co....
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....me as the powers of the assessing authority and hence additional grounds can be entertained so long as they relate to the subject-matter of the proceedings which were before the assessing officer or the appellate authority. It further held that, the Tribunal had jurisdiction to permit additional grounds to be raised even though these did not arise out of the order of the Appellate Assistant Commissioner. In light of the above decisions and in the interest of substantial justice, we pray that the Hon'ble Members be pleased to admit the additional ground and adjudicate the same for which we shall remain most grateful. Thank you. 04. The learned Authorized Representative reiterated the contentions raised in the application. 05. The learned Departmental Representative vehemently objected the same stating that same ground has not been raised before the lower authorities. 06. We have carefully considered the rival contentions and perused the prayer of the assessee for admission of additional ground. It is a jurisdictional ground and it can be taken at any stage of appeal, it does not require any further investigation of facts, therefore, it is admitted. ....
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....as intimated the fact of amalgamation to the lower authorities well in advance and prior to the Assessment order was passed, The learned Authorized Representative i. Submitted a copy of letter dated 22 April 2009, addressed to the Commissioner of Income Tax-3, Hyderabad, wherein the details of the amalgamation was submitted. It was stated that assessee company has amalgamated with Colgate-Palmolive (India) Limited with effect from 1 April 2008 and PAN number allotted to that company was surrendered. It was also submitted to register this fact in the record and take necessary action. Copy of such letter was also given to Dy. Commissioner of Income Tax, Circle-3(2), Hyderabad. He submitted that the intimation was available to the learned Assessing Officer before he passed the assessment order on 31 January 2011. ii. Referred to the order passed by the Addl. Director of Income tax, Transfer Pricing, Hyderabad, wherein at Para no.2.1, it is mentioned that the company is amalgamated with the Colgate- Palmolive (India) Limited with effect from 1st April, 2008. Despite this, the learned Transfer Pricing Officer passed the order in the name of S.S. Oral Hygiene Private Li....
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.... assessee company with Colgate-Palmolive (India) Limited with effect from 1st April,2008. Despite this, the learned Transfer Pricing Officer passed order in the name of S.S. Oral Hygiene Private Limited and same the learned Assessing Officer passed an order in the name of non-existing entity. The issue is squarely covered by the order of the Hon'ble Supreme Court in PCIT , New Delhi V Maruti Suzuki India Limited [2019] 107 taxmann.com 375 (SC) has been held that assessment order passed in the name of non-existing entity pursuant to amalgamation in the name of amalgamating company instead in the name of amalgamated company is illegal order. It held that:- "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 ....
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....ct) on 26th November, 2012. The assessee filed its return of income on 26th September, 2008, declaring total income of Rs. 5,56,81,732/-. The return was picked up for scrutiny. Assessee has entered into international transaction as per form no. 3CEB, reference was made to the learned Transfer Pricing Officer to determine the Arms Length Price. The order under Section 92CA (3) of the Act was passed on 9th September, 2011, proposing an assessment of Rs. 3,32,07,006/-. The Transfer pricing officer in his order in paragraph no. 2.1. has categorically mentioned that the above company has amalgamated with Colgate-Palmolive (India) Limited effective from 1st April, 2008. Despite the above fact, the order was passed by the learned Transfer Pricing Officer in the name of S.S. Oral Hygiene Private Limited. The assessment order was passed in the name of S.S. Oral Hygiene Private Limited and (the learned Assessing Officer also mentioned that 'successor in interest as Colgate-Palmolive (India) Limited)'. Draft order was passed under, determining the total income of the assessee at Rs. 8,88,88,738/- on 19th December, 2011. 021. The assessee preferred the objection before the learned D....