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2023 (12) TMI 459 - ITAT DELHITP Adjustment - draft assessment order without making a reference to the Ld. TPO u/s 92 CA(3) and relying upon the findings of the TP Order issued in relation to different assessee [merged with the assessee pursuant to a scheme of merger] - HELD THAT:- Upon careful consideration, we note that assessee was incorporated on 9th March, 2017 i.e. during FY 2016-17. It has not undertaken any business operation during the year. There was no reference to TPO in this case. AO took the TPO’s order in the case of Boeing Corporation India Ltd. (BCIL) and made an identical addition in this regard in the hands of the assessee. Thus, it is amply clear that there was no reference to TPO in the case of the assessee and the TPO in this case relates to BCIL. The BCIL merged with the assessee pursuant to a scheme of merger on appointed date of 1st April 2017. Thus, since BCIL merged with the assessee in AY 2018-19, it was an independent entity until March 31, 2017. Hence, any adjustment in the case of BCIL has nothing to do with the assessment of the assessee. The assessee’s submissions has sufficient cogency that impugned international transaction referred to in TP order has not been entered by the assessee for the subject year and thus, does not pertain to the assessee. The said TPO’s order which has been referred in the assessment order is in the case of BCIL, thus, the TP order pertains to BCIL rather than the assessee. In this factual background, when the assessee has not entered said transaction and there was no TPO reference in the case of assessee and the transaction of BCIL, which has merged with the assessee company on 01.04.2017, has been taken as assessee’s transaction, the assessment order in this case is liable to be quashed. Ld. DR for the Revenue could not refute any submission of the assessee. Hence, we set aside the orders of the authorities below and direct that the transfer pricing adjustment is deleted. Appeal of the assessee is allowed.
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