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TMI Blog2025 (5) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... dia under section 9(1) of the Income Tax Act, 1961, without appreciating the fact that business operation was being carried out in a continuing manner through Multi Screen Media P. Ltd? 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the assessee does 3 not have a Permanent Establishment within the meaning of Article 5(4) of the India - USA DTAA, in the form of Multi Screen Media P. Ltd?" 4. Whether on facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that Multi Screen Media P. Ltd. was an independent agent of the assessee in India u/s 9(1)(i) r.w. Article 5(5) of Indo-USA DTAA?" 5. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that as no TP adjustments have been made in the orders of TPO, the transactions between the assessee and Multi Screen Media P. Ltd. were at arm's length and therefore, no further profits could be attributed to Multi Screen Media P. Ltd. (previously known as SET India P. Ltd.) without considering the fact that the arm's length price had not been determined or accepted for the functions undertaken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts reads as under:- Date Event Name indicated 28 August 2015 Notice under Section 143(2) of the Act SPE Networks-India Inc (SPENI) 09 June 2016 Notice under Section 142(1) of the Act SPE Networks-India Inc (SPENI) 01 July 2016 HC order approving merger with SPNI (w.e.f. 1April 2015) 16 December 2016 Notice under Section 92CA(2) r.w.s 92D(3) Of the Act SPE Networks India Inc (SPENI) 2 January 2017 Letter intimating AO and TPO about the merger with SPNI SPE Networks India Inc (SPENI) 25 October 2017 Transfer Pricing order SPE Networks India Inc (SPENI) 07 December 2017 Draft assessment order SPE Networks India Inc (SPENI) 12 February 2018 Final assessment order SPE Networks India Inc (Now merged with Sony Pictures Networks India Private Limited) 22 March 2018 Appeal filed before Hon'ble CIT(A) Sony Pictures Network India Private Limited [SPNI] (SPNI as a successor to SPENI which has merged into SPNI with effect from appointed date of 1 April 2015) 5. Later on the name of Sony Pictures Network India Pvt. Ltd. was changed to Culver Max Entertainment Private Limited. However, the ld. AO still proceeded to pass the assessment order in the name of amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We have heard both the parties and also the decision of the Tribunal in the case of the assessee for earlier years. It is not in dispute that assessee had duly intimated the fact of amalgamation of erstwhile SPNI with Sony Pictures Network India Pvt. Ltd. later on name changed to Culver Max Entertainment Private Limited. Even the judgment of the Hon'ble Bombay High Court dated 01/07/2015 sanctioning the scheme of amalgamation with an appointed date of 01/04/2015 was also filed alongwith letter dated 02/01/2017 requesting the ld.AO to drop the assessment proceedings initiated in the name of non- existing entity and issue a fresh notice in the name of amalgamated entity. Once this fact was brought on record, ld. AO was bound to pass the order in the name of amalgamated entity which he has failed to do so. Under these facts, the assessment order passed in the case of non-existing entity cannot be sustained. For the sake of ready reference, the judgment of Hon'ble Bombay High Court in the earlier years is reproduced hereunder:- "This appeal filed under Section 260-A of the Income Tax Act, 1961 is directed against an order dated 13 March 2023 passed by the Income Tax Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i India Ltd. (supra), cannot be faulted and are in accordance with law. The said findings read thus:- "4 Moreover, on similar issue in an appeal by assessee before coordinate bench vide ITA No. 2130/MUM/2017, dated 19.09.2022 for A.Y. 2012-13, matter adjudicated in favour of assessee on the ground of jurisdictional defect. Respectfully following the decision of coordinate bench mentioned (supra) on similar facts in assessee's own case and law declared by the Hon'ble Apex Court in the case of PCIT vs. Maruti Suzuki India Ltd. reported in 416 ITR 613(SC), we are of considered view that assessment made in the name of a non-existing entity is without jurisdiction, hence null and void ab initio. As such type of order suffers from "jurisdictional defect and not from "procedural defect", hence same can't be cured even by section 292B, even if, the assessee has participated in the assessment proceedings." 4 We may also observe that in a recent decision of this Court in Uber India Systems Private Limited vs. Assistant Commissioner of Income & Ors. [Writ Petition (L.) No. 23562 of 2024], in similar circumstances, this Court has allowed the writ petition filed by the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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