TMI Blog2019 (3) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... INGH, JM AND SRI RAJESH KUMAR, AM For the Appellant : Shri Nitesh Joshi, AR For the Respondent : Shri Manish Kumar Singh, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-58, Mumbai [in short CIT(A)], in appeal No. CIT(A)-58/Curr 287/14-15 vide order dated 13.03.2015. The Assessment was framed by the Asst. Commissioner of Income Tax, Circle-7(2), Mumbai (in short ACIT/ ITO/ AO ) for the A.Y. 2003-04 vide order dated 20.12.2011 under section 143(3) of the Income Tax Act, 1961 (hereinafter the Act ). 2. The first issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in framing assessment on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited with effect from 01.10.2003 and hence no order could have been passed by the AO in the name of the appellant. This contention of the appellant is not acceptable since TPO has passed the order in compliance with the directions of Hon ble ITAT contained in order dated 06.10.2010. Once the issue was set aside by Hon ble ITAT, the current assessment order merged with the original assessment order and since on the date of passing the original order, no merger had taken place, there is no infirmity in the order. Further, such issues have been taken care of by the provisions of sec 292B. Aggrieved, now assessee is in second appeal before Tribunal 4. Before us, the learned Counsel for the assessee stated the fact that Siemens Technol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04, initiating penalty proceedings under section 271(1)(c) of the Act and asking them to respond within 7 days from the date of receipt of the notice. Siemens Building Technologies Pvt. Ltd (SBT) was merged with Siemens Ltd. on 1st October 2003 and hence we are replying to your aforesaid notice as their successor company. In this connection, we wish to inform you that the said company is in the process of filing an appeal before Commissioner of Income Tax (Appeals) XXVI (CIT(A)], against all additions / disallowance made in the assessment order dated 23.03.2008. We therefore request you to kindly the said proceedings pending until the disposal of appeal by CIT(A). Before proceedings in the matter please give us a personal heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h March, 2016, are without jurisdiction. 7. Further, the learned Counsel for the assessee relied on the co-ordinate Bench decision of this Tribunal in assessee s sister concern i.e. Siemens Technology Services Private Limited vs. The Asst. Commissioner of Income Tax, in ITA No. 6313/Mum/2012 for AY 2008-09, wherein various decisions of High Court have been considered and exactly on identical facts and circumstances held that the assessment of non-existence concern is not valid and for this Tribunal observed in para 8 and 8.1 as under: - 8.1 Considering the entirety of facts and circumstances of the case, we set aside the action of the Assessing Officer in framing the impugned assessment against the Siemens Corporate Finance Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imbs of the principles of natural justice that, if in fact, any data is found which goes against the net profit margin declared by the assessee s comparables are not correct. In our opinion, the order of the TPO under section 92CA(3) which has been adopted by the AO suffers from non-application of mind as well as in gross violation of the principles of natural justice. We, therefore, consider fit to remand this issue of the determination of the ALP to file of the AO for fresh adjudication as the AO has mechanically accepted the adjustment made by the TPO. 9. The AO in another round passed an order under section 144(c)(1) read with section 143(3) read with section 254 of the Act vide order dated 20.12.2011. Similarly, in the name of Siem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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