TMI Blog2016 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer ) passed under section 144C(1) r.w.s 143(3) of the Income Tax Act, 1961 ( in short the Act) dated 16/08/2012, which is in conformity with the direction of the Dispute Resolution Pannel-2, Mumbai dated 27/07/2012. 2. In this appeal, assessee has raised the following Grounds of appeal:- That on the facts and circumstances of the case, and in law: 1. That the assessment order dated August 16, 2012 passed in pursuance to the directions issued by the Learned Dispute Resolution Panel ('Ld. DRP') is a vitiated order as the Ld. DRP erred both on facts and in law confirming the addition proposed by the Ld. Assessing Officer ('Ld. AO)') to the Appellant's income. 2. The Ld. DRP erred both on facts and in law in confirming the addition of ₹ 1,12,46,145 to the income of the Appellant by holding that its international transaction of 'Provision of Business Support Services' does not satisfy the arm's length principle envisaged under the Income-tax Act, 1961 ('the Act'). 3. The appellant filed a return of income for assessment year 2008-09 on 21/09/2008 declaring a total income of ₹ 51,54,659/-, which was subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the course of assessment proceedings, assessee vide its communication dated 6/12/2011 (duly acknowledged in the office of ACIT, Cir. 7(2) dated 14/12/2011) intimated to the Assessing Officer the fact of its amalgamation with Siemens Technology and Services Pvt. Ltd. in pursuance to order passed by the Hon'ble Bombay High Court dated 26/08/2011, a copy of such communication has also been placed on record. Now, the grievance of the assessee is that the subsequent assessment finalized by the Assessing Officer on 16/08/2012 is in the name of Siemens Corporate Finance Pvt. Ltd., which is a non-existent assessee as on the date of passing of such assessment order and, therefore, the assessment order is voidab- initio. It has also been pointed out that after passing of the draft assessment order under section 144C(1) of the Act dated 22/11/2011 assessee had raised objections before the DRP also wherein, the fact of the merger stood disclosed. For this, reliance has been placed on the decision of the Mumbai Tribunal in the cases of Ambuja Cement Rajasthan Ltd., WTA No.11/Mum/2014 dated 24/02/2016 and M/s. Instant Holdings Ltd., ITA No.4593/Mum/2011 dated 09/03/2016 wherein, under sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on that date, since it stood amalgamated with IHL w.e.f. 1.4.2007 and stood dissolved and struck-off from the records of the Registrar of Companies on 5.2.2008 consequent to the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007. 8. In the case of Spice Infotainment Ltd. (supra), the facts were that a return was filed for Assessment Year 2002-03 on 30.10.2002 by M/s. Spice Corp Ltd., i.e., the amalgamating company. Subsequently, vide order dated 11.2.2004 passed by the Hon'ble High Court, the said company stood amalgamated with M/s. MCorp Private Ltd., i.e., the amalgamated company w.e.f. 1.7.2003. The return so filed was picked up for scrutiny assessment vide notice u/s. 143(2) of the Act dated 18.10.2003 in the name of M/s. Spice Corp Ltd., i.e., the amalgamating company. In the course of assessment proceedings, the factum of M/s. Spice Corp Ltd. having been dissolved as a result of amalgamation with M/s. MCorp Private Ltd. was brought to the notice of the Assessing Officer. However, the Assessing Officer vide order dated 28.3.2005 passed u/s. 143(3) of the Act framed the assessment on M/s. Spice Corp Ltd., i.e., the amalgamating compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the predecessor amalgamating company, i.e., M/s. SSS Ltd. This assessment order was sought to be challenged on the ground that as on 27.3.2006, i.e., the date of passing of assessment order, the said concern had ceased to exist upon its amalgamation with the successor company. In this factual background, the Hon'ble Karnataka High Court, following the judgement of the Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. (supra), answered the following questions of law in favour of the assessee and against the Revenue. (1) Whether the Tribunal was correct in holding that the order passed by the Assessing Officer on M/s Software Silicon Systems India Pvt. Ltd., after being intimated about the merger with M/s Intel Technology India Pvt. Ltd., was without jurisdiction against the said company and null and void ? (2) Whether the Tribunal was correct in holding that the provisions of section 292B of the Act will not make the assessment valid as a defect/omission to incorporate the name of M/s Intel Technology India Pvt. Ltd., in the assessment order as the same is not in substance and effect in confirmative with or according to the intend and pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand of the Revenue as well as the CIT(A) on this aspect is clearly untenable having regard to the aforesaid discussion. 13. In the result, we set-aside the action of the Assessing Officer in framing the assessment against ITICL on 19.12.2008 as the said company was non-existent as it stood amalgamated with IHL w.e.f. 1.4.2007, following the scheme of amalgamation approved by the Hon'ble Bombay High Court on 14.12.2007 To the similar effect is the decision of the Mumbai Tribunal in the case of Ambuja Cements Rajasthan (supra). The Hon'ble Bombay High Court in the case of Jitendra Chandralal Navlani Anr. (surpa) also upholds the proposition that no assessment can be made in respect of non-existent entity. In fact, the judgment of the Hon'ble Bombay High Court also brings out that framing of assessment in respect of a non-existent entity goes to the root of the jurisdiction of the Assessing Officer to assess the non-existent concern and, thus, said decision also clearly answers the objection of the Revenue in the present case that the plea of the assessee is merely hyper-technical. 8.1 Considering the entirety of facts and circumstances of the case, we s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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