TaxTMI 
TaxTMI 
2025 (3) TMI 1422
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.... to the Transfer Pricing Officer (TPO) for determining the arm's length price of the same. The TPO vide order dated 24.07.2023 proposed an upward adjustment of Rs.228,66,345/-. The Assessing Officer in the draft assessment order made addition of the same. 3. The assessee approached the Dispute Resolution Panel (DRP) who vide order dated 18.06.2024 gave part relief to the assessee. 4. Aggrieved with such order of the Assessing Officer / TPO / DRP, the assessee is in appeal before the Tribunal by raising the following grounds: General Grounds 1. The learned Assessing Officer ("AO") erred in passing the final assessment order dated 23 July 2023 under Section 143(3) read with Section 144C(13) of the Income Tax Act 1961 (the Act) beyond the time limit prescribed under Section 153 of the Act making the proceedings bad in law and liable to be quashed. 2 The learned Dispute Resolution Panel (DRP)/Transfer Pricing Officer (TPO) AO have erred, in law and on facts and circumstances of the case, in proposing an upward adjustment to the total income of the appellant as under a. Adjustment of INR 65,26,040 in respect of international transaction pert....
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....e, by wrongfully rejecting certain similar companies selected by the Appellant in its Transfer Pricing Study Report namely 'Batchmaster Software Private Limited, TVS Infotech Limited, Infomile Technologies Limited, Evoke Technologies Private Limited and Issumation Technologies Private Limited without appreciating that these companies are also engaged in rendering similar software development services and hence, are functionally comparable to the activities undertaken by the Appellant with respect to the subject international transaction. 9. The learned DRP/TPO/AO passed an order under Section 92CA(3) of the Act which suffers from several computational errors in margins of the companies considered comparable by the learned TPO, for determination of arm's length margin, and consequently, erred in computing the amount of adjustment to be made in respect of the subject transactions of the Appellant. Further, the Ld. DRP has erred in not adjudicating the rectification application filed by the Appellant dated 13 Oct 2023 under section 154 of the Act. 10. The DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by falling to make appropriate ....
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....the same has been passed in the name of Aricent Technologies Pvt. Ltd. which has been amalgamated with Aricent Technologies (Holdings) Ltd. which in turn has been amalgamated into Capgemini Technology Services India Ltd. and accordingly, as the said order has been passed in the name of non existent entity, the order passed by the learned TPO and the consequential final assessment order be declared null and void. 6. Referring to the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) and in the case of Jute Corporation Of India Ltd vs Commissioner Of Income Tax And Anr (1991) 187 ITR 688, the Ld. Counsel for the assessee submitted that the said additional ground raised is purely legal in nature which goes to the root of the matter and all necessary facts are already available on record and no new facts are required to be investigated. Therefore, the additional ground raised by the assessee should be admitted. 7. After hearing both the sides and considering the fact that the additional ground raised by the assessee is purely legal in nature and all the material facts are already available on record and no new f....
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....e Ld. Counsel for the assessee drew the attention of the Bench to the reply dated 10.01.2023 by the assessee to the Assessing Officer wherein the assessee has requested the TPO to drop the proceedings since the same have been initiated in the name of non-existing company and non-existing PAN. Referring to page 32 of the paper book, he submitted that the notice issued by the Assessing Officer dated 27.2.2023 to the assessee wherein he has again issued the notice in the name of Aricent Technologies Pvt. Ltd. Referring to page 33 of the paper book, he drew the attention of the Bench to the letter dated 15.03.2023 by the assessee to the Assessing Officer wherein it was again requested to drop the proceedings which have been initiated in the name / PAN of a non-existing company. Referring to page 35 of the paper book, he drew the attention of the Bench to the letter addressed to the Assessing Officer on 06.07.2023 wherein it was specifically brought to the notice of the Assessing Officer that Aricent Technologies Pvt. Ltd. has already amalgamated into Capgemini Technology Services India Pvt. Ltd. 10. Referring to the draft order u/s 144(1) dated 26.09.2023, he submitted that the Asse....
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....y, even though order u/s 104 came to be made after order of amalgamation and after dissolution of amalgamating company. 15. We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer / TPO / DRP and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee in the instant case has filed the return in the name of Aricent Technologies Pvt. Ltd. The only question that has to be decided in the instant appeal is as to whether the order passed by the TPO in the name of a non-existing company is a valid one or not. We find the TPO in the instant case has passed the order on 24.07.2023. We find from page 3 of the paper book that the assessee vide its letter dated 11.04.2022 addressed to the TPO has mentioned as under: "B. Notice issued in the name of non-existing company - Invalid In this regard, it is respectfully submitted that since the appointed date of merger of ATPL and ATHL, as laid down in the approved scheme is 1 April 2020, ATPL has legally ceased to exist from the said date." 16. Relying on various decisions it was submitted that the reference made b....
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....able consideration:...." 20. We find despite all these letters to the TPO, he passed the order in the name of Aricent Technologies Pvt. Ltd. vide order dated 24.07.2023. Under these circumstances, we have to see as to whether the order of the TPO passed in the name of a non-existing company is a valid one and therefore such upward adjustment proposed by the TPO can be sustained. 21. We find an identical issue had come up before the Ahmedabad Bench of the Tribunal in the case of M/s. Allscripts (India) LLP (As a successor in interest of Allcripts India Pvt. Ltd.) vs. NFAC (supra) wherein the Tribunal while deciding the issue of validity of the order passed by the TPO on a non-existing company. The Tribunal after relying on the various decisions held that the order passed on a non-existing company is a nullity. The relevant observations of the Tribunal from para 4 onwards read as under: "4. At the outset, the Ld. Counsel for the assessee challenged the validity of order passed by DRP on the ground that the TPO had passed order on a non-existent entity. The Ld. Counsel for the assessee submitted that Allscripts India Private Limited (AIPL) was a Private Limited company ....
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....case of Siemens Ltd. v. DCIT 147 taxmann.com 118 (Mumbai - Trib.), the ITAT held that where draft assessment order under section 144C was passed in name of amalgamating company, which was a non-existent entity on date of passing of such order, it became an illegal order and thus, entire assessment proceedings based on such an invalid draft assessment order were void ab initio and deserved to be quashed. In the case of BOEING India (P.) Ltd. v. ACIT 121 taxmann.com 276 (Delhi - Trib.), the ITAT held that where draft assessment order under section 144C was passed in name of amalgamated company which was non-existent company, said order was void ab initio. In the case of PCIT v. Maruti Suzuki India Ltd107 taxmann.com 375 (SC), the Hon'ble Supreme Court held that where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. In the case of Dimension Data Asia Pacific PTE Ltd. v. DCIT 96 taxmann.com 182 (Bombay), the Hon'ble High Court held that where in case of foreign assessee, Assessing Officer passed final assessment or....