TMI Blog2023 (1) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... Mishra, CIT DR/Ms. Samruddhi Dhananjay Hande, SR AR ORDER PER BENCH: 01. ITA No. 5677/Mum/2012 is filed by SS Oral Hygiene Products Private Ltd merged with Colgate Palmolive (India) Ltd. for A.Y. 2007-08, against the appellate order passed by the learned Commissioner of Income tax (Appeals)-15, Mumbai dated 11 June 2012. ITA No.5538/Mum/2012 for AY 2007-08, is filed by the Dy. Commissioner of Income Tax, Circle 10(3), Mumbai [the learned Assessing Officer] against the same appellate order. 02. At the time of hearing of the appeal an additional ground was put to our attention which was filed by the assessee on 9th June, 2023, stating as under:- 1. On the facts and the circumstances of the case and in law, the learned Assessing Officer (AO), Ld. Transfer Pricing Officer (Ld.TPO) and the Commissioner of Income-tax (Appeals) (CIT (A)) erred in passing order in the name of S.S. Oral hygiene Private Limited, an entity which is not in existence on the date of passing the impugned orders on account of its amalgamation with the Appellant. It is the humble prayer of the Appellant that the transfer pricing order, assessment order and CIT (A) ‟s order be held as bad in law, illegal, nul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal in nature and does not require any verification of facts and, hence the Appellant humbly submits that the ground of appeal should be admitted in the interest of justice. 11. The wishes to rely on the Hon'ble Supreme Court decision in the case of NTPC Ltd. vs. CIT (1998) 229 ITR 383 (SC) (NTPC') wherein it was held that a question of law can be raised before the Tribunal for the first time which has a bearing on the tax liability of an assessee notwithstanding the fact that the same was not raised before the lower authorities. At the sake of repetition, we crave leave of Your Honours to rely upon the following decisions in support of our plea for admission of additional ground and adjudication of the enclosed additional ground of appeal: Jute Corporation of India Ltd. [187 ITR 688 (SC)] In this case, the Hon'ble Apex Court at page 693, observed as under: Even otherwise, an appellate authority while hearing the appeal against the order of a subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner Ashok Vardhan Birla vs. CWT [208 ITR 958 (Bom)] In this case, following its decision in case of Ahmedabad Electricity Co. Ltd. (supra) and the decision of the Apex Court in case of Jute Corporation of India Ltd. (supra), the Hon'ble Mumbai High Court, in the context of the Wealth-tax Act, 1957, observed that the powers of the appellate authorities are the same as the powers of the assessing authority and hence additional grounds can be entertained so long as they relate to the subject-matter of the proceedings which were before the assessing officer or the appellate authority. It further held that, the Tribunal had jurisdiction to permit additional grounds to be raised even though these did not arise out of the order of the Appellate Assistant Commissioner. In light of the above decisions and in the interest of substantial justice, we pray that the Hon'ble Members be pleased to admit the additional ground and adjudicate the same for which we shall remain most grateful. Thank you. 04. The learned Authorized Representative reiterated the contentions raised in the application. 05. The learned Departmental Representative vehemently objected the same stating that same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the appellate order was also passed in the name of S.S. Oral Hygiene Private Limited. 011. The assessee has submitted that Hon'ble Supreme Court has categorically held that assessment passed in the name of non-existing amalgamating company, which ceased to exist from the date of amalgamation, it is illegal and invalid. To show that assessee has intimated the fact of amalgamation to the lower authorities well in advance and prior to the Assessment order was passed, The learned Authorized Representative i. Submitted a copy of letter dated 22 April 2009, addressed to the Commissioner of Income Tax-3, Hyderabad, wherein the details of the amalgamation was submitted. It was stated that assessee company has amalgamated with Colgate-Palmolive (India) Limited with effect from 1 April 2008 and PAN number allotted to that company was surrendered. It was also submitted to register this fact in the record and take necessary action. Copy of such letter was also given to Dy. Commissioner of Income Tax, Circle-3(2), Hyderabad. He submitted that the intimation was available to the learned Assessing Officer before he passed the assessment order on 31 January 2011. ii. Referred to the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, 2010, placed at page no.173 of the Paper Book as well as letter dated 12th April, 2010, placed at page no.328 of the Paper Book. Further, the learned Transfer Pricing Officer in his order dated 30th April, 2010, at paragraph no.201 at page no.2 has categorically stated the fact of amalgamation of the assessee company with Colgate-Palmolive (India) Limited with effect from 1st April,2008. Despite this, the learned Transfer Pricing Officer passed order in the name of S.S. Oral Hygiene Private Limited and same the learned Assessing Officer passed an order in the name of non-existing entity. The issue is squarely covered by the order of the Hon'ble Supreme Court in PCIT , New Delhi V Maruti Suzuki India Limited [2019] 107 taxmann.com 375 (SC) has been held that assessment order passed in the name of non-existing entity pursuant to amalgamation in the name of amalgamating company instead in the name of amalgamated company is illegal order. It held that:- 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 For A.Y. 2008-09 020. ITA No. 774/Mum/2013, is filed by the assessee for A.Y. 2008-09 against the assessment order passed by the Dy. Commissioner of Income Tax, 10(3), Mumbai, under Section 143(3) read with section 144(13) of the Income-tax Act, 1961 (the Act) on 26th November, 2012. The assessee filed its return of income on 26th September, 2008, declaring total income of ₹ 5,56,81,732/-. The return was picked up for scrutiny. Assessee has entered into international transaction as per form no. 3CEB, reference was made to the learned Transfer Pricing Officer to determine the Arms Length Price. The order under Section 92CA (3) of the Act was passed on 9th September, 2011, proposing an assessment of ₹ 3,32,07,006/-. The Transfer pricing officer in his order in paragraph no. 2.1. has categorically mentioned that the above company has amalgamated with Colgate-Palmolive (India) Limited effective from 1st April, 2008. Despite the above fact, the order was passed by the learned Transfer Pricing Officer in the name of S.S. Oral Hygiene Private Limited. The assessment order was passed in the name of S.S. Oral Hygiene Private Limited and (the learned Assessing Officer also m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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