TMI Blog2018 (2) TMI 1759X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeal filed by the assessee is against the order of CIT(A)-13, Pune, dated 21.07.2015 relating to assessment year 2010-11 against order passed under section 143(3) of the Income-tax Act, 1961 (in short the Act ). 2. The assessee has raised the following grounds of appeal:- On the facts and circumstances of the case, and in law; 1. The Ld. Assessing Officer ( AO') erred in ruling that the transactions pertaining to export of certain finished goods and Marketing Support Services (MSS) provided to group companies have not been conducted at arm‟s length, and thereby making a transfer pricing adjustment of ₹ 86,62,514 to the income of the appellant. In doing so, the Ld AO/CIT(A) specifically erred in: Making transfer pricing adjustment for export of certain finished goods of ₹ 78,67,104 by: 1.1 disregarding the underlying transactional differences while considering the prices charged (for certain products) to third parties in India as CUPs for determining the arm‟s length nature of similar products exported to the AE. Making transfer pricing adjustment for Marketing Support Services (MSS) of ₹ 7,95,410 by: 1.2 disregarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of which is placed at pages 1 and 2 of Paper Book-2. He further pointed out that during the course of proceedings before the Transfer Pricing Officer (TPO), specific query in this regard was raised by the TPO and complete details were filed along with copy of the order of Hon ble High Court sanctioning the scheme of amalgamation and also scheme of amalgamation which are placed at pages 268 to 296 of Paper Book along with covering letter at page 261 and 262 of the Paper Book. Our attention was drawn to the para 3 of the said letter. He further referred to the order of TPO which was passed in the name of ANCIL though complete information was available with the TPO of amalgamation of the assessee company. He further referred to the communication dated 03.02.2014 which was filed before the Assessing Officer during the course of assessment proceedings wherein also, it was clearly in the subject itself mentioned that the company has merged with ANIL w.e.f. 01.04.2011. However, the TPO passed order on 15.01.2014, the Assessing Officer passed draft assessment order on 27.02.2014 and final order on 07.04.2014, all in the name of ANCIL. The assessee has challenged the said orders being p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The TPO passed order under section 92CA(3) of the Act on 15.01.2014 in the name of ANCIL. Thereafter, draft assessment order was also passed in the same name on 27.02.2014. The final assessment order was passed on 07.04.2014 in the same name. The CIT(A) has decided the appeal in the name of ANCIL. The grievance of the assessee before us is that despite giving an intimation of amalgamation of ANCIL with ANIL as early as 11.06.2012 to the Assessing Officer and thereafter also to the TPO, who had raised specific query in this regard vide his letter dated 08.08.2013 asking the assessee to file the requisite details with respect to change in the name. In response thereto, the assessee filed letter dated 13.09.2013 along with copy of approval of scheme of amalgamation by the Hon ble Bombay High Court. The said communication is placed at pages 261 to 297 of Paper Book-1. The copy of first intimation dated 11.06.2012 which was filed in the office of the Assessing Officer on 13.06.2012 is placed at pages 1 and 2 of the Paper Book-2. The learned Departmental Representative for the Revenue has pointed out that the said letter is not available on record. However, the copy of letter fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), wherein it was held that framing of assessment against the non-existing entity / person goes to the root of the matter and the same is not just a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person and thereby, the order of the Tribunal is unsustainable. 9. The Hon ble Bombay High Court in Jitendra Chandralal Navlani Anr. Vs. Union of India (supra) has held as under:- 4. Normally we would not have entertained a petition as an alternative remedy to file an appeal is available to the petitioners. However, prima facie, the impugned notice has been issued in respect of a non-existing entity as Addler Security Systems Pvt. Ltd., which stands dissolved, having been struck off the Rolls of the Registrar of Companies much before its issue. Consequently, the assessment has been framed also in respect of the non- existing entity. This defect in issuing a reopening notice to a non-existing company and framing an assessment consequent thereto is a issue which goes to the root of the jurisdiction of the Assessing Officer to assess the non-existing company. Thus, prima facie, both the impugned notice dated 24th March, 2015 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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