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TMI Blog2023 (7) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(3) read with section 144C of the Income-tax Act, 1961 (the Act) dated 22nd March, 2013, assessing the total income of the assessee at Rs.56,05,260/- against the return income of Rs.49,18,44,320/-. This assessment order was passed in the name of Solvay Pharma India Ltd. 3. For both the above appeals assessee has filed additional ground vide letter dated 28th March, 2023, challenging the validity of final assessment order passed under Section 143(3) read with section 144C(13) of the Act. 4. The additional ground raised for A.Y. 2008-09 reads as under:- "On the facts and in the circumstances of the case, the Appellant wishes to raise the following additional ground of appeal which is independent of the other grounds of appeal. 3. Additional Ground No 3-Validity of final assessment order dated 31 October 2012 passed under section 143(3) r.w.s. 144C(13) of the Act 3.1 On the facts and in the circumstances of the case and in law, the Learned Assessing Officer erred in passing the final assessment order dated 31 October 2012 under section 143(3) r.w.s. 1448 of the Act on non-existent company i.e. Solvay Pharma India Limited. 3.2 The learned Assessing Officer erred in not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of admission of the additional grounds are introduced. In view of above, we admit additional ground raised by the assessee. 10. As the additional ground is jurisdictional in nature, we proceed to decide it first for assessment year 2008 - 09. Facts leading to the case shows that assessee Solvay Pharma India Ltd. , engaged in the business of manufacturing and trading in pharmaceuticals, filed its return of income declaring total income of Rs.48,34,49,690/- on 30th September, 2008. As the assessee has entered into international transaction, it was referred to the learned Transfer Pricing Officer to determine the Arm's Length Price of the same. The learned Transfer Pricing Officer passed an order under Section 92CA(3) of the Act proposing an adjustment of Rs.1,64,90,460/-. The learned Assessing Officer also disallowed several expenditure and also made an adjustment under Section 145A of the Act and accordingly, total income was determined in the draft assessment order at Rs.51,67,05,479/-. Objections to the draft assessment order were filed before the learned Dispute Resolution Panel, who gave a direction on 30th July, 2012 and based on that final assessment order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Abbott India Ltd has been approved by the honourable High Court with effect from 1 January 2011. (Page 40 of the paper book) ix on 9 January 2013 in communication to the Additional Commissioner Of Income Tax Transfer Pricing - II (4) Mumbai (the learned TPO) it was also specifically mentioned that Solvay Pharma India Ltd is now known as Abbott India Ltd. (Page 41 of the paper book) x on 5 March 2018 letter was addressed to the Additional Commissioner Of Income Tax - Range (7) (2) Mumbai wherein a specific reference was made that Solvay Pharma India private limited has now been merged with the Abbott India Ltd in terms of scheme of merger between Abbott India Ltd and Solvay Pharma India Ltd approved by the honourable Bombay High Court wide its order dated 15 July 2011. The assessee also submitted the permanent account number of both the entities. (Page number 51 of the paper book) xi on 14 March 2013 once again the same identical information was furnished to the assessing officer placed at page number 55 of the paper book xii when the Dispute Resolution Panel was presented with the objections towards the draft assessment order which was signed by authorized signatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamation of Solvay Pharma India Ltd with Abbott India private limited however, despite above communication, all the orders passed by the learned TPO and the learned assessing officer as well as the learned dispute resolution panel are in the name of Solvay Pharma India limited which should have been passed in the name of Abbott India Ltd and therefore such orders passed are on a nonexistent entity and consequently are invalid and liable to be quashed. The learned authorized representative relied heavily on the decision of the honourable Supreme Court in case of Principal Commissioner Of Income Tax Versus Maruti Suzuki India Ltd [2019] 107 taxmann.com 375 (SC) where it has been held that Where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. He also submitted that there are series of decision of various high courts and coordinate benches which say that where the assessment order is passed in the name of a non existing entity are invalid, if fact of its non existence is communicated to the assessing authorities in ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it void; and iii. The judgment of the Apex Court in the case of Pr. CIT v. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375/265 Taxman 515/416 ITR 613 which held that if despite informing the assessing officer if the jurisdictional notice was issued in the name of erstwhile company, then the basis on which the jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation and the participation in the proceedings by the assessee cannot operate as an estoppel against law. 6. In our view, considering the facts of the present case on the touchstone of the aforestated well settled propositions of law therefore, the Order of assessment u/s 143(3) dated 28th September 2022 and consequential notices u/s 156, 270A, 271AAC(1) issued in the name of a non-existent entity are void." 19. Decision relied upon by the learned departmental representative on case of principal Commissioner of income tax versus Mahagun Realtorts Pvt Limited [2022] 137 taxmann.com 91 (SC) wherein it has been held that Where post amalgamation, no indication was given to AO during search conducted at premises of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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