AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (4) TMI 830
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.... final assessment order in the name of erstwhile entity (i.e. Fairfield Atlast Limited, PAN AAACA4439Q) which is no longer in existence, in spite of the fact that the same has been merged with the Graziano Transmission India Private Limited with effect from 1 April, 2022 and duly intimated to officer during respective proceedings, accordingly, the same is a nullity in eyes of law and hence liable to be quashed.; 3. Referring to above ground No.3 of grounds of appeal Ld. Counsel for the assessee, at the outset, submitted that the assessee (erstwhile known as Fairfield Atlas Limited in short "FAL") filed its return of income on 14.03.2022 declaring income of Rs. 37,33,53,252/- for the A.Y. 2021-22. The case of the assessee was selected for scrutiny as per scrutiny selection norms under CASS and a notice under section 143 (2) of the Act was issued on 28.06.2022 by the AO in Pune Jurisdiction in the name of Fairfield Atlas Limited (FAL). The relevant notice is at pages 2092 to 2094. The Ld. Counsel submitted that based on a reference made u/s. 92CA(1) of the Act transfer pricing assessment proceedings were initiated by the TPO in the name of Fairfield Atlas Limited (FAL). 4. The ....
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.... the TPO in Delhi jurisdiction vide submissions dated 05.09.2023 which were placed at pages 336 of the paper book that FAL was amalgamated with GTIPL enclosing scheme of merger, order of NCLT and intimation letter to registrar of companies alongiwth all the annexures enclosing PAN numbers of both the entities GTIPL and FAL. The Ld. Counsel further submitted a show caused notice dated 12.10.2023 which is placed at page 376 to 384 of the paper book was too issued in the name of FAL by the TPO in Delhi and even against this show cause notice the assessee filed its detailed submissions which were placed at pages 388 to 375 of the paper book, dated 20.10.2023 in the name of GTIPL (successor of a FAL) and also mentioned both PAN numbers separately for clarity. Ld. Counsel submitted that despite all the intimations given by the assessee to the TPO the TPO passed an order u/s. 92CA(3) of the Act manually on 30.10.2023 which is placed at pages 64 to 98 of the appeal set, in the name of FAL mentioning its PAN number which is non-existent entity. 8. The Ld. Counsel for the assessee, therefore, submitted that it is evident from the above narrated facts, post the order passed by NCLT on 30.0....
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....2. The Ld. DR also placed reliance on the decision of Skylite LLP Vs. ACIT (90 taxmann.com 413) and submitted that in the present case no prejudice has been caused to the assessee, all the notices were properly served upon it and assessee cooperated throughout the proceedings and made submissions which are on record. The Ld. DR also made the following written submissions :- "2. On the Ground of Appeal argued by the AR of the Assessee on which the c was taken as heard: 2.1 During the course of hearing on 17.02.2026. AR of the assessee only pressed one of the grounds of appeal which was ground no. 3 taken by the assessee before the Hon'ble ITAT: 3. Erred in passing the Transfer Pricing assessment order, draft assessment order and final assessment order in the name of erstwhile entity (i.e. Fairfield Atlas Limited PAN: AAACA44390) which is no longer in existence. in spite of the fact that the same has been merged with the Graziano Trasmissioni India Private Limited with effect from 1 April 2022 and duly intimated to officer during respective proceedings, accordingly, the same is a nullity in eyes of law and hence liable to be quashed. 2.2 It is ....
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....te Limited vide order dated 30-05-2023 passed by NCLT. The TP proceedings initiated in ITBA Systems much prior to this date when the assessee company M/s Fair Field Atlas Limited was in existence. Therefore, TPO was to complete the proceedings which was created in the name of Fair Field Atlas Limited in ITBA Systems. However, in the body of this give effect order name of both amalgamated and amalgamating companies are mentioned and order is passed in the name of M/s Graziano Transmissioni India Private Limited (Successor of Fairfield Atlas Limited). 2.6 The above order makes it clear that the contention raised by the assessee are not just wrong but are also mischievous as he has misled the Hon'ble Court on the issue of jurisdiction. Since the TP proceedings were initiated in ITBA Systems much prior to the date of amalgamation and when the assessee company M/s Fair Field Atlas Limited was in existence, therefore, TPO was to complete the proceedings which was created in the name of Fair Field Atlas Limited in ITBA Systems, 2.7 Furthermore, following directions of Hon'ble DRP, the final assessment order mentions both the names Fair Field Atlas Limite....
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....formity with or according to the intent and purpose of the Act. 8. It was contended that the amalgamating or transferor company was duly represented by the amalgamated company and no prejudice was caused to any of the parties by the assessment order. It is further urged by the revenue that in Maruti Suzuki, this court rejected the revenue's appeal on the ground that the final assessment order referred only to the name of the amalgamating company and there was no mention of the resulting company, whereas in this case, In both the draft and the final assessment orders, the names of both the amalgamating and amalgamated company were mentioned, (emphasis supplied). 2.10 The Hon'ble Court had settled the issue in favour of the Revenue. The matter of amalgamation was laid to rest by Hon'ble Supreme Court in favour of Revenue; The analysis and conclusions reached by the Hon'ble Court are mentioned as under: 16. The relevant provision of the Act is section 170. It inter alia, provides that where a person carries on any business or profession and is succeeded (to such business) by some other person (i.e.. the successor), the predecessor sh....
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....tion, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall. 19. This court, in CIT v. Hukamchand Mohanlal 1972 (1) SCR 786 noticed that section 159 of the Act related to a legal representative's tax liability. It casts liability upon a legal representative in the event of death of her or his predecessor, to pay tax, in effect saying that where a person dies his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died. The corresponding provision in the old Income Tax Act (of 1922) was section 248. The court in CIT v. Amarchand N. Shroff 1963 Supp (1) SCR 699 held that the provision did not authorise levy of tax on receipts by the legal representative of a deceased person in the year of assessment succeeding the year of account, being the previous year in which such person died. The assessee ordinarily had to be a living person and could not be a dead person. By section 24B the legal personality of the deceased assessee was extended for the duration of the entire previous year in the course of which he died. The income received by him before his death....
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....any or one is absorbed into one or blended with another, the amalgamating company loses its entity. In M/s General Radio and Appliances Co Ltd v M.A.. Khader (dead) by Lrs.. [1986] 2 S.C.C. 656, the effect of amalgamation of two companies was considered. M/s. General Radio and Appliances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to anyone without the consent of the landlord. M/s. General Radio and Appliances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under sections 391 and 394 of Companies Act. 1956. Under the amalgamation scheme, the transferee company, namely. M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorised sub-letting ....
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....hen amalgamation was not separately defined under the Income Tax Act. By an amendment of 1967, this term was for the first time defined in the form of section 2(1A). That provision reads as follows: "(1A) "amalgamation", in relation to companies, means the merger of one or more companies with another company or the merger of two or more companies to form one company (the company or companies which so merge being referred to as the amalgamating company or companies and the company with which they merge or which is formed as a result of the merger, as the amalgamated company) In such a manner that- (0 all the property of the amalgamating company or companies immediately before the amalgamation becomes the property of the amalgamated company by virtue of the amalgamation: (1) all the liabilities of the amalgamating company of companies immediately before the amalgamation, become the liabilities of the amalgamated company by virtue of the amalgamation: shareholders holding not less than ninetenths in value of the shares in the amalgamating company or companies (other than shares already held therein immediately before the amalgamation by, or by a nom....
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....onsequences. It is equally relevant to notice that the Courts have not only sanctioned the scheme in this case but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income Tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the Transferor Company (Subsidiary Company) should be deemed to have been carried on for and on behalf of the Transferee Company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the Court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. The Bank of....
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....xistent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved". 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns. It became Incumbent upon the Income tax authorities to substitute the successor in place of the sald dead person. When notice under section 143(2) war sent. the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of Ws Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 12. Once it is found that assessment is framed in the name of non-existing entity. it do....
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.... decision, McDowell & Company Ltd. v. CIT [2017] 80 taxmann.com 101/247 Taxman 101/393 ITR 570 this court had occasion to consider the effect of amalgamation of two companies, and the rights and liabilities in relation to claim for depreciation, under the Act. The assessee had taken over a sick company-HPL by amalgamation: HPL ceased to have any identity after amalgamation. The relative rights, however, were determined in terms of the scheme of amalgamation. The benefit of interest accrued after the company ceased to exist was availed of by the assessee (the successor) company. The assessee was allowed to set off the amalgamated losses of the company amalgamated with it. i.e.. HPL This benefit accrued to the assessee under section 72A of the Act. The court held that when the assessee was allowed the benefit of the accumulated loss, while computing those losses, the income which accrued to it had to be adjusted and only thereafter net loss could have been allowed to be set off by the assessee company. The AO had made those calculations. The assessee was given the benefit of the accumulated loss of the amalgamated company. Its effect was that though those losses were suffered by the ....
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....ompanies amalgamate and merge into one, the transferor company loses its identity as it ceases to have its business. However, their respective rights and liabilities are determined under the scheme of amalgamation, but the corporate identity of transferor company ceases to exist with effect from the date the amalgamation is made effective.; 30. The combined effect, therefore, of section 394(2) of the Companies Act, 1956 section 2(IA) and various other provisions of the Income Tax Act. is that despite amalgamation, the business, enterprise and undertaking of the transferee or amalgamated company which ceases to exist, after amalgamation. is treated as a continuing one, and any benefits, by way of carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee. Therefore, unlike a winding up, there is no end to the enterprise, with the entity. The enterprise in the case of amalgamation, continues. 31. In Maruti Suzuki (supra), the scheme of amalgamation was approved on 29-1-2013 w.e.f. 1-4- 2012, the same was intimated to the AO on 2-4-2013, and the notice under section 143(2) for AY 2012-13 was issued to amalgamating company o....
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....t taken into account. Further, the tax treatment in the various provisions of the Act were not brought to the notice of this court, in the previous decisions. 2.11 The conclusion drawn by the Hon'ble Supreme Court is extremely important in the present case. The Hon'ble Court had observed: 42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case, 2.12 In the present case, no prejudice has been caused to the assessee, All notices were properly served upon him. Further, he has cooperated throughout the proceedings and made submissions which are on record, 2.13 Even in the case of Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax, Circle 28(1), New Delhi [2018] 90 taxmann.com 413 (Delhi) Hon'ble High Court of Delhi has observed that re-assessment notice issued in name of erstwhile private limited company despite company ceasi....
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.... the Hon'ble High Court was also confirmed by the Hon'ble Supreme Court of India in Sky Light Hospitality LLP v. Assistant Commissioner of the Act after following the procedure as set out in Section 148A of the Act and in terms of the decisions of the Supreme Court in Ashish Agarwal (supra). The said notice is in the name of the petitioner and, therefore, cannot be faulted on account of the Impugned notice having been issued in the name of a non-existent company. 11. The reassessment proceedings in respect of AY 2014-15 are now being continued pursuant to the notice dated 29.07.2022 Issued under Section 148 of the Act and not the impugned notice, which is to be construed as a notice under Section 148A(b) of the Act. 12. In view of the above, the contention that the proceedings are vitiated on account of the fact that the Impugned notice was issued in the name of a non-existent company (Nokia Siemens Networks India Private Limited), is unmerited. 2.20 In view of the above facts and case laws, it is absolutely clear that neither any prejudice has been caused to assessee nor there is any illegality in the order. The case of the assessee is squarely c....
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....29 to 330 of the factual paper-book). Relevant extract is reproduced below for easy reference. Intimation of merger facts to Ld. AO in Kolhapur jurisdiction: 10. Following the NCLT order, the Appellant conveyed the fact of above-mentioned merger to the learned AO in Kolhapur jurisdiction (tax jurisdiction of FAL) vide letter dated 10 August 2023 (Refer pages 283 to 330 of the factual paper-book). In this letter-filed under the correct name i.e. GTIPL (successor of FAL) the Appellant notified the amalgamation, mentioned the PAN of old entity as well as PAN of new entity in the letter, enclosed a complete set of merger documents as under, and requested transfer of jurisdiction for both corporate tax and TP proceedings from Pune to Delhi (the tax jurisdiction of GTIPL): i. Copy of scheme of merger (Refer pages 289 to 320 of the factual paper-book) ii. Copy of order of NCLT approving the scheme (Refer pages 321 to 328 of the factual paper-book) iii. Copy of intimation letter to registrar of companies with respect of filing of Form INC-28 (Refer pages 329 to 330 of the factual paper-book) Intimation of merger facts to Ld. TPO in Pune....
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.... and also mentioned both the PANs separately for clarity. 17. Despite this, learned TPO issued the order under section 92CA(3) manually on 30 October 2023 (Refer pages 64 to 98 of the appeal set) in the name and PAN of FAL Le. non-existent entity. 18. It is evident from the above that, following the order passed by the Hon'ble NCLT on 30 May 2023, the Appellant duly informed the learned TPOs in both Pune and Delhi jurisdictions regarding the merger of FAL into GTIPL Further, following the NCLT order, the Appellant has repeatedly and consistently filed all submissions before both the learned TPOs in Pune and Delhi jurisdictions, in the name of GTIPL, being the successor of FAL 19. The detailed sequence of events (enclosed vide pages 2439 to 2440) clearly demonstrates that the Appellant repeatedly disclosed the fact of merger and furnished all relevant supporting documents on multiple occasions. Despite this, the learned TPO in the Delhi jurisdiction proceeded to issue the impugned transfer pricing order in the name and PAN of the non-existent predecessor entity. 20. Thus, the transfer pricing order passed in the name of non-existent entity is ....
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....mitted that had there been a genuine technical glitch or any system-driven constraints which prevented the Income-tax Department from issuing the order in the correct name, the Department ought to have reported the same somewhere in the notices or orders of assessment. The same view is supported by the decision of Hon'ble Bombay High Court in case of Paras Defence and Space Technologies Ltd. [Writ Petition No.4934 OF 2022 dated 27 January 2026 (Bombay HC)] (Refer pages 2230 to 2251 of the legal paper-book). Relevant extract of the decision is reproduced below for ease of reference: "13. We have heard both the parties at length and have also perused the records produced before us and also the affidavit in reply filed by the Respondents. It is an undisputed fact that the Petitioner had made Respondent No. 1 aware about the amalgamation of Concept Shapers And Electronics Private Limited with the Petitioner during the course of the assessment proceedings for AY 2018-19 as well as during the assessment proceedings for the relevant Assessment Year 2020-21. Despite the aforesaid, Respondent No. 1 issued the Notice under Section 142(1) In the name of Concept, proceeded to issu....
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....the para 10 above and also mentioned both the PANs separately for clarity (Refer pages 2102 to 2105 of the legal paper-book) 26. Further, show cause notice (enclosed vide pages 2441 to 2442) dated 26 December 2023 was, too, issued incorrectly in the name and PAN of FAL, by the learned AO in Delhi. 27. In response to this notice, the Appellant filed its submission (enclosed vide pages 2443 to 2444) dated 27 December 2023 in the name of GTIPL (successor of FAL) and also mentioned both the PANs separately for clarity. 28. Despite the above, learned AO in Delhi jurisdiction passed the draft assessment order (Refer pages 61 to 63 of the appeal set) dated 27 December 2023 in the name and PAN of FAL. 29. It is evident from the above that, following the order passed by the Hon'ble NCLT on 30 May 2023, the Appellant duly informed the learned AOs in both Kolhapur and Delhi jurisdictions, as well as to the Assessment Unit, regarding the merger of FAL into GTIPL. Further, following the NCLT order, the Appellant has repeatedly and consistently filed all submissions before all the learned AOs (including Assessment unit), in the name of GTIPL, being the suc....
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....un Realtors (P) Ltd. (supra) is concerned, as observed hereinabove, the Court, once again, noticed the judgment rendered in Spice Enfotainment Ltd. (supra). As regards Maruti Suzuki India Ltd. (supra), the Court in Mahagun Realtors (P.) Ltd. (supra) made the following crucial observations: 22. As is evident upon a perusal of the aforementioned extracts from Mahagun Realtors the Court distinguished the judgment rendered in Maruti Suzuki India Ltd. (supra), on account of the following facts obtaining in that case (i) There was no intimation by the assessee regarding amalgamation of the concerned company. (ii) The return of income was filed by the amalgamating company, and in the "Business Reorganization column, curiously, it had mentioned "not applicable". (iii) The intimation with regard to the fact that the amalgamation had taken place was not given for the assessment year in issue. (iv) The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated company. (v) More crucially, while participating in proceedings before the concerned authorities, it was repre....
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....icial precedents on the issue where draft assessment order is framed in the name of non-existent entity 34 In this regards the Appellant would like to place reliance on the following judicial precedents wherein it is held that if the draft order is framed in the name of a non-existent entity, it is bad in law and liable to be quashed, thereby leading to subsequent proceedings and final assessment order being invalid and liable to be quashed * Hon'ble Delhi Tribunal in BOEING India Private Limited vs. ACIT ITA No. 9765/DEL/2019 dated 17 August 2020 (Delhi - Trib.) (Refer page nos. 2319 to 2325 of the legal paperbook) * Hon'ble Mumbai Tribunal in the case of India Medtronic Private Limited (ITA No. 7262/MUM/2018 dated 27 January 2023 (Mumbai - Trib.) (Refer page nos. 2332 to 2347) * Further, Hon'ble Mumbai Tribunal in the case of Aptar Pharma India Private Limited [ITA No. 632/MUM/2022 dated 16 August 2023 (Mumbai -Trib.) (Refer page nos. 2383 to 2387 of the legal paperbook) * Hon'ble Mumbai Tribunal in the case of Siemens Limited (2023) 199 ITD 470 (Mumbal -Trib.) (Refer page nos. 2388 to 2395 of the legal paperbook) ....
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....0025, Delhi,India Form 35A dated 24 January 2024 Graziano Transmissioni India Private Limited (Successor of Fairfield Atlas Limited) 511, 5th Floor DLF Tower, B Jasola, New Delhi 110025, Delhi, India DRP Directions dated 28 September 2024 Graziano Transmissioni India Private Limited (Successor of Fairfield Atlas Limited) 511, 5th Floor DLF Tower, B Jasola, New Delhi 110025, Delhi, India Final Assessment Order dated 30 October 2024 Fairfield Atlas Limited Graziano Transmissioni India Private Limited successor of Fairfield Atlas Limited, Survey No. 157, Devarwadi Village, Off. Belgaum Vengurla Road, Tal. Chandgad, Kolhapur 416507, Maharashtra, India *Note : It is respectfully submitted that in the Final Assessment has been mentioned in the address line. An identical issue came before the Hon'ble Supreme Court in PCIT v. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) (refer pages 2133 to 2147 of the legal paper book), wherein the assessment was framed in the name of a non-existent entity, despite the name of the amalgamated company being mentioned in address. The Hon'ble Court held such proceedings to be invalid. Applying the ratio laid do....
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....that once the Assessing Officer is informed of the amalgamation, any notice or order issued in the name of supreme the amalgamating company is a nullity, participation by the assessee notwithstanding. This principle was applied after noting that had ceased to exist. Relevant extract is reproduced below for your Honour's easy reference : "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 against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leav....
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.... of BTL Industries Ltd (merged with and now known as M/s BTL Holding Co. Ltd.) (ITA No. 7430/Del/2019 dated 20 August 2025 (Delhi ITAT)) (Refer page nos. 2261 to 2289 of the legal paperbook); * Hon'ble Mumbai Tribunal in the case of Zee Entertainment Enterprises Ltd. [Successor entity of M/s. ETC Network Ltd.), (ITA No.6788/MUM/2016 and CO No. 74/MUM/2018 dated 15 May 2019 (Mumbai ITAT) (Refer page nos. 2412 to 2428 of the legal paperbook) Prayer 48. The Appellant respectfully submits that given this comprehensive factual record and the uniform judicial position, the jurisdictional defect in the impugned TP order, draft assessment order, and final assessment order is incurable. 49. The aforesaid orders were issued to an entity that had legally ceased to exist, despite multiple written intimations and despite the tax administration's own authority (i.e. Hon'ble DRP) recognizing the successor entity. For these reasons, it is respectfully submitted that all three impugned orders (i) the Transfer Pricing order under section 92CA(3), (ii) the draft assessment order under section 144C(1), and (iii) the final assessment order under section 1....