TMI Blog2020 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri Akhter ORDER Per Shamim Yahya, AM This appeal filed by Revenue is directed against the final order passed by the Assessing Officer dated 31.01.2017 under Section 143(3) r.w.s. 144C(13) of Income Tax Act, 1961 (hereinafter the Act ) and it relates to A.Y. 2012-13. 2. The assessee has raised the following grounds of appeal: - 1. Ground No. 1 - Transfer pricing ( TP') adjustment in relation to provision of software development services 1.1. On the facts and circumstances of the case and in law, the Hon'ble Dispute Resolution Panel 1 ('Hon'ble DRP') erred in upholding the action of the Deputy Commissioner of Income Tax, Circle - i4(i)(i), Mumbai ('Ld, AO')/ Additional Commissioner of Income Tax, Transfer Pricing - 1(1), Mumbai (Ld. TPO') in making an adjustment of ₹ 6,01,99,278 in relation to the international transaction of provision of software development services. In doing so, the Hon'ble DRP erred in : 1.1.1. upholding the action of the Ld. AO/ Ld, TPO in rejecting the TP documentation maintained by the Appellant; 1.1.2. upholding the action of the Ld. AO/ Ld. TPO in including companies in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to allow the deduction of excess provisions for earlier year written back amounting to ₹ 5,87,78,387. 5. Ground No. 5 - Denial of deduction of project risk expenses written back On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in confirming the action of the Ld. AO in disallowing the deduction of provision of project risk expenses written back amounting to ₹ 70,35,549 on the alleged ground that no documentary evidence in support of the claim has been furnished. The Appellant therefore prays that the Ld. AO be directed to allow the deduction of provision of project risk expenses written back amounting to ₹ 70, 35,549. 6. Ground No. 6 - Denial of deduction of preliminary expenses On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in confirming the action of the Ld. AO in disallowing the deduction of preliminary expenses under section 350 of the Act amounting to ₹ 1,96,333 on the alleged ground that the impugned expenditure do not fall within the ambit of Section 350 of the Act, The Appellant therefore prays that the Ld. AO be directed to allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) During the year under consideration, Siemens Pte. Ltd, Singapore transferred its shareholding in Siemens IT Solutions and Services Pvt Ltd to Siemens IT Solutions Services GMBH, Germany and accordingly, the assessee became wholly owned subsidiary of Siemens IT Solutions Services GMBH, Germany, whose ultimate holding company was Siemens AG. Before filing the return of income, the ultimate holding company was changed from Siemens AG to Atos SA, France. Consequently, the name of the company was changed to Atos IT Solutions and Services Pvt Ltd. c) The assessee filed its return of income for the Asst Year 2011-12 on 30.11.2011 in the name of Atos IT Solutions and Services Pvt Ltd declaring total income of ₹ 14,53,98,874/- which was subsequently revised to ₹ 4,64,70,033/-. Subsequently, Atos IT Solutions and Services Private Ltd got merged into Atos India Private Ltd in view of scheme of amalgamation which was duly approved by the Hon ble Bombay High Court dated 21.12.2012 enclosed in pages 1335 to 1350 of the Paper Book filed before us. d) The assessee s case was picked up for scrutiny and notice u/s 143(2) of the Act was issued on 29.8.2013 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the additional ground raised by the assessee is hereby admitted and taken up for adjudication. 6. We find that the learned DR vide letter dated 25/10/2019 submitted the written submissions of the learned AO with regard to the additional ground by seeking report from the learned AO. We find that the assessee had pleaded that the copy of fact of merger of Atos IT Solutions and Services Pvt. Ltd. with Atos India Pvt. Ltd., pursuant to the scheme of amalgamation duly approved by the Hon ble Bombay High Court vide order dated 21/12/2012 was indeed submitted to the learned AO during the course of assessment proceedings vide letters dated 31/01/2014 and 03/02/2014. The Bench directed the learned DR to verify the availability of these letters from the assessment folder. Accordingly, the report dated 15/10/2019 was submitted by the learned AO through the learned CIT(DR) wherein the learned AO had agreed to the fact that the letters dated 31/01/2014 and 03/02/2014 were indeed available in the case records of the assessee but the enclosures are not available thereon. We find that the entire objections of the learned AO vide letter dated 15/10/2019 had already been addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of learned DRP was passed u/s.143(3) r.w.s. 144C(13) of the Act dated 27/01/2016 in the name of Atos IT Solutions and Services Pvt. Ltd. 7. From the aforesaid facts, it could be seen that even after the learned DRP taking into account the fact of merger and passing order by giving directions to the learned AO in the name of the merged entity i.e. Atos India Pvt. Ltd, the learned AO continued to frame the final assessment order in the name of erstwhile amalgamating company. Hence, it could be safely concluded that the learned AO had passed draft assessment order as well as the final assessment order in the name of non-existent entity despite having due intimation of the fact of merger duly approved by the Hon ble Bombay High Court vide order dated 21/12/2012. The law is now very well settled that assessment framed on an non-existent entity deserves to be declared as void ab initio by the recent decision of the Hon ble Supreme Court in the case of PCIT vs. Maruthi Suzuki India Ltd., reported in 416 ITR 613 wherein it was held that where during pendency of assessment proceedings, assessee company was amalgamated with another company and thereby lost its existence, the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting all the particulars along with the unchanged PAN. The Departmental Representative submitted that assessee is not aggrieved by the old PAN in the assessment order as it is due to the mistake of the assessee itself that it did not change. The Departmental Representative submitted that the particulars in the name used by the Assessing Officer capture all the particulars and there is no reason to hold the assessment illegal. 12. Per contra learned counsel of the assessee submits that in identical circumstances ITAT in assessee s own case has quashed assessment hence the same should be duly followed. As regards the issue of getting the particulars of PAN changed by application and other due course and the issue of filing of revised return, learned counsel of the assessee submitted that these might have been done. 13. Upon careful consideration we find that honourable Supreme Court in the case of Honda CIEL (295 ITR 466) has held that non-consideration of the order of the ITAT in assessee s own case can render the order of another bench of the ITAT containing mistake apparent from record. Since the above said order of the ITAT in assessee s own case has not been reversed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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