TMI Blog2019 (10) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... for the A.Y.2010-11. 2. The assessee has raised the following grounds of appeal:- 1. On the facts and in law, the Learned Assistant Commissioner of Income Tax, Circle-8(2)(l), Mumbai ( Ld. AO ) erred in passing the impugned assessment order dated 28 January 2015 pursuant to the directions of the Hon'ble Dispute Resolution Panel ( Hon'ble DRP ) and computing the total income of the Appellant for Assessment Year ( AY ) 2010-11 at ₹ 35,60,31,878 as against the returned income of ₹ 24,07,36,549. 2. On the facts and in law, the Ld. AO erred in proposing and the Hon'ble DRP further erred in confirming the addition of ₹ 1 1 ,52,95,329 to the Appellant's returned income of ₹ 24,07,36,549. 3. On facts and in law, the Ld. AO erred in making a mistake apparent from record by not granting the working capital adjustment already given to the Appellant by the Ld. TPO in the order dated 29 January 2014 passed u/s 92CA (3) of the Income-tax Act, 1961 ('the Act'). The application filed for rectification u/s 1 54 of the Act by the Appellant before the Ld, AO is pending disposal. 4. On facts and in law, Ld. AO/ Ld. Ld. TPO and the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld.AO/ Ld. TPO and Hon'ble DRP grossly erred in not allowing the risk adjustment in accordance with the provisions of Rule 10B(3) of the Rules to account for the differences in the risk profile of the Appellant and the comparable companies. 11. On facts and in law, the Ld. AO / Ld. TPO and Hon'ble DRP erred in disregarding prior years' data used by the Appellant to benchmark the international transactions in its Transfer Pricing documentation for the year and holding that current year (i.e. Financial Year 2009-10) data for comparable companies should be used despite the fact that the same was not necessarily available to the Appellant at the time of preparing its TP documentation, and grossly misinterpreting the requirement of contemporaneous data in the Rule 10B(4) of the Rules, 1962 to necessarily imply current year data, thereby breaching the principles of natural justice and impossibility of performance. 12. On facts and in law, the Appellant submits that the impugned assessment order passed by the learned AO is bad in law as Siemens Power Engineering Limited has ceased to exist on the date of the impugned order on account of its merger with Siemens Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reference was made by the ld. DCIT, Circle-2, Gurgaon to ld. Transfer Pricing Officer - II(1) Circle II(2), New Delhi 12 12/4/2013 Letter addressed by the Siemens Ltd., (successor of SPEPL) to JDIT TPO - II(2), New Delhi in connection with transfer pricing assessment proceedings for A.Y.2010-11 furnishing the requisite details that were called for by the ld. TPO 13 14/5/2013 Letter written by the assessee in the name of Siemens Ltd., (successor in interest to SPEPL)addressed to Commissioner of Income Tax, Gurgaon, intimating the fact of merger of SPEPL with SL and request to transfer the jurisdiction of SPEPL to the jurisdiction of SL. In the said letter, PAN of Siemens Ltd., (SL) was mentioned as AAACS0764L falling under the jurisdiction of Commissioner of Income Tax Range-7, Mumbai through the Additional commissioner of income Tax, Range-7(2), Mumbai through the Dy. Commissioner of Income Tax, Range - 7(2), Mumbai. It was requested by the assessee in the said letter to transfer the pending matters relating to the assessee to the above mentioned jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee filed objections before the ld. DRP-3, New Delhi in the name of SPEPL (now merged with Siemens Ltd.) 23 12/3/2014 Letter written by assessee SPEPL (now merged with Siemens Ltd.) to ld. DRP, New Delhi in connection with filing of objections before the ld. DRP, New Delhi in the A.Y.2010-11 24 18/3/2014 Date of order u/s.154 of the Act in the name of SPEPL passed by the Additional Director of Income Tax, TPO II (2), New Delhi making some minor changes in the comparables 25 31/3/2014 Date of filing of revised form 3CEB together with date of revised return of income which was signed by the Managing Director, Mr. Sunil Mathur of Siemens Ltd., 26 28/8/2014 Date of order u/s.127 for transfer of jurisdiction from Circle-2, Gurgaon to Circle-7, Mumbai vide order under CIT/FBD/127/09/201415 27 9/9/2014 Notice issued u/s.143(2) of the Act by DCIT Circle-2, Gurgaon in the name of SPEPL for A.Y.2012-13 at Gurgaon address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-13 clearly mentioning the name of the assessee as Siemens Ltd. (as the successor in interest to SPEPL). In the said letter it was specifically submitted that SPEPL was amalgamated with SL w.e.f. 01/10/2011. Pursuant to the said merger, the company prepared revised financial statements and revised. Accountant s reports in the Form No.3CEB for the period 01/04/2011 to 30/09/2011, among other details 37 20/10/2015 Letter addressed by the DCIT Circle - 8(2)(1), Mumbai for A.Y.2012-13 to the assessee in the name of SPEPL at Mumbai address calling for various details 38 8/1/2016 Date of order u/s.92CA(3) of the Act passed by JCIT TP-4(1), Mumbai for A.Y.2012-13 in the name of SPEPL (merged with Siemens Ltd.) 39 28/4/2016 Date of filing of objections before the ld. DRP, Mumbai by the assessee in the name of Siemens Ltd.(Successor in interest to SPEPL) for the A.Y.2012-13 40 19/8/2016 Hearing notice issued by DRP-Mumbai for A.Y.2012-13 in the name of Siemens Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/11/2016; in another group company case in the case of Siemens Ltd. vs. ACIT in ITA No.3296/Mum/2015 dated 01/03/2019; decision of Hon ble Jurisdictional High Court in the case of Jitendra Chandralal Navlani Anr. Vs. Union of India in WP No.1069 of 2016 dated 08/06/2016 and also on the decision of Hon ble Delhi High Court in the case of Spice Infotainment vs CIT in IT Appeal Nos. 475 476 of 2011 dated 03/08/2011. We find that this issue is now squarely settled in favour of the assessee by the recent decision of Hon ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd. reported in 416 ITR 613 (SC) wherein it was held as under:- 31. Mr Zoheb Hossain, learned Counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, this Court did not find any infirmity in the decision of the Delhi High Court holding that the issuance of a notice to an erstwhile private limited company which had since been dissolved was only a mistake curable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inues to carry on that business or profession,- (a) the predecessor shall be assesseed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assesseed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assesseed on the predecessor, cannot be recovered from him, the 99[Assessing] Officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tturam v. CIT [1947] 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v. CIT [1943] 11 ITR 202 (Bom.) ( Maharaja of Patiala ). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as His Highness late Maharaja of Patiala . The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. 35. For the above reasons, we find no merit in the appeal. The appeal is accordingly dismissed. There shall be no order as to costs. 3.4. Since the issue is decided by the Hon ble Apex Court there is no need to adjudicate the various case laws of Hon ble High Courts and Tribunals relied upon by both sides. 3.5. In view of our observations in the facts and circumstances of the case and respectfully following the decision of Hon ble Supreme Court supra, we hold that assessment made for the A.Y.2010-11 in the name of non-existent entity is void abinitio and deserves to be quashed as it is passed in the name of non-existent entity. Accordingly, the ground No.12 raised by the assessee is allowed. 3.6. Since ground No.12 rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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