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TMI Blog2023 (1) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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, null and void-ab-initio and as such deserves to be quashed. " 03. The petition states as under:- "In this connection, we are enclosing herewith an additional ground of appeal, in triplicate. We have given below our petition for admission of the additional ground before Yours Honours: 1. "S.S. Oral Hygiene Private Limited‟, incorporated on 5 September, 1989, is engaged in the business of manufacturing and sale of toothpaste. 2. With effect from 1 April 2008, "S.S. Oral Hygiene Private Limited‟ (amalgamating company) was amalgamated into "Colgate-Palmolive (India) Limited‟ (amalgamated company or appellant) pursuant to the scheme of amalgamation sanctioned by the Hon'ble Andhra Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 statutory provision, the appellate authority is vested with all the plenary powers, which the subordinate authority may have in the matter. Is the decision, a three-member bench of the Hon'ble Apex Court while discussing the scope of Section 31(3)(a) of the Indian Income-tax Act, 1999, which is almost identical to section 25(1)(a) the Act, observed as under: The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his powers is conterminous with that of the Income-tax Officer. He can do what the Income-tax Officer can do and can also direct him to do what he has failed to do." CIT vs. S. Nelliap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 ground has not been raised before the lower authorities. 06. We have carefully considered the rival contentions and perused the prayer of the assessee for admission of additional ground. It is a jurisdictional ground and it can be taken at any stage of appeal, it does not require any further investigation of facts, therefore, it is admitted. 07. The fact shows that assessee is a company engaged in the business of manufacture of toothpaste and shaving cream. It filed its return of income on 31 October 2007 at Rs Nil. Subsequently, return was revised on 6th May, 2008 declaring income of Rs. 5,81,04,61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, 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 passed by the Addl. Director of Income tax, Transfer Pricing, Hyderabad, wherein at Para no.2.1, it is mentioned that the company is amalgamated with the Colgate- Palmolive (India) Limited with effect from 1st April, 2008. Despite this, the learned Transfer Pricing Officer passed the order in the name of S.S. Oral Hygiene Private Limited. iii. learned CIT (A) had the order of the learned Transfer Pricing Officer, wherein the above information with respect to the amalgamation is already mentioned, despite that the learned CIT (A) also passed the order in the name of non-existing entity i.e. S.S. Oral Hygiene P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Infotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ength Price. The order under Section 92CA (3) of the Act was passed on 9th September, 2011, proposing an assessment of Rs. 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 mentioned that 'successor in interest as Colgate-Palmolive (India) Limited)'. Draft order was passed under, determining the total income of the assessee at Rs. 8,88,88,738/- on 19th December, 2011. 021. The assessee preferred the objection before the learned Dispute Resolution Panel-2, Mumbai, who recorded the fact in its direction at Para no.3.2 that S.S. Oral Hygiene Private Limited got amalgamated with Colgate-Palmolive (India) Limited with effect from 1st April, 2008. The learned Dispute Resolution Panel, passed the direction on 24th September, 2012 in the name of S.S. Oral Hygiene Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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