2018 (1) TMI 140 - AT - Income Tax

Validity of assessment against non existent company - assessment in the name of a company which had been amalgamated and had been dissolved with the said amalgamating company - Held that - In the case before us, we find that the returns were filed by the amalgamating company and the notices u/s 143(2) & 142(1) were issued probably to the assessee prior to amalgamation, therefore the scrutiny assessments were validly initiated, but the assessment order is passed on a non-entity. Therefore, in our opinion, the assessment proceedings cannot be held to be invalid ab initio. The AO can proceed with the assessment proceedings, by transposing the amalgamated company as the assessee and issuing fresh notice u/s 142(1) of the Act and complete the assessment proceedings. AO is directed accordingly. Failure to pass a draft assessment order under Section 144C - Held that - We find that when the issues were set aside by the Tribunal, it is not merely for correcting mathematical errors in the calculations, but it is for reconsidering the issue in accordance with the directions of the ITAT. Wherever, the AO/TPO exercise their discretion after verification, and pass an order, it is incumbent upon them to give the assessee an opportunity to present its case or to appeal against such orders. It is for this reason that the statues provide that the AO shall pass a draft assessment order against which the assessee can either choose to file its objection before the DRP or choose to file an appeal before the CIT (A) and after the assessee exercises its option, the AO can pass the final assessment order in accordance with the directions of the DRP or the assessee can file an appeal before the CIT (A). As per section 144C of the Act, the AO first has to pass the draft assessment order and the choice is with the assessee either to approach the DRP or the CIT (A). Only if the assessee chooses to prefer an appeal before the CIT (A), can the AO pass the final assessment order. Similar facts had arisen in the case of JCB India Ltd (2017 (9) TMI 673 - DELHI HIGH COURT) before the Hon ble Delhi High Court and the Hon ble High Court has held that even in the case of a remand by the Tribunal, the AO has to pass a draft assessment order and not the final assessment order

Summary

Issues Involved:
1. Validity of the assessment order passed on a non-existent entity due to amalgamation.
2. Exclusion of certain companies from the list of comparables.
3. Determination of Arm's Length Price (ALP) for international transactions.
4. Procedure for passing the draft assessment order post remand by ITAT.

Detailed Analysis:

1. Validity of the Assessment Order Passed on a Non-Existent Entity Due to Amalgamation:
The assessee company, initially known as "Tele Atlas India Pvt. Ltd" (TATPL), merged with "Infotech Enterprises Ltd" on 1.10.2005. Despite the amalgamation, the AO passed the assessment order in the name of the amalgamating company, which was no longer in existence. The Tribunal, referencing the Hon'ble Supreme Court's decision in NTPC Ltd and the Delhi High Court's rulings in cases like Spice Enfotainment Ltd, CIT vs. Micra India (P) Ltd, and Pr. CIT vs. Maruti Suzuki India Ltd, held that the assessment order is void ab initio. The Tribunal directed the AO to transpose the amalgamated company as the assessee and issue fresh notices under section 142(1) to complete the assessment proceedings.

2. Exclusion of Certain Companies from the List of Comparables:
The assessee challenged the inclusion of Hinduja TMT Ltd and Datamatics Technologies Ltd from the list of comparables, arguing that these companies had related party transactions of more than 25% during the relevant financial year. The Tribunal remanded this issue to the AO/TPO for reconsideration after giving the assessee a fair opportunity of hearing.

3. Determination of Arm's Length Price (ALP) for International Transactions:
For the A.Ys 2006-07 and 2007-08, the Tribunal had previously set aside issues regarding the rate of interest on interest-free loans advanced to AEs and the corporate guarantee fee given by the assessee to its AEs. The TPO, following the Tribunal's directions, suggested adjustments based on LIBOR +2% for the loan interest and a 2% corporate guarantee fee. The Tribunal found that the AO/TPO must give the assessee an opportunity to present its case or appeal against such orders, emphasizing the need for a draft assessment order as per section 144C of the Act.

4. Procedure for Passing the Draft Assessment Order Post Remand by ITAT:
The Tribunal highlighted that, following a remand by ITAT, the AO must pass a draft assessment order before issuing the final assessment order. This procedure ensures the assessee's right to object before the DRP or appeal to the CIT (A). The Tribunal referenced the Hon'ble Delhi High Court's decision in JCB India Ltd vs. DCIT, which held that failure to pass a draft assessment order results in an incurable illegality, rendering the final assessment order void. Consequently, the Tribunal set aside the AO's consequential orders dated 29.5.2015 for A.Ys 2006-07 and 2007-08, directing the AO/TPO to pass draft assessment orders in accordance with the Tribunal's directions dated 16.01.2014.

Conclusion:
The Tribunal's judgment addressed the validity of assessment orders passed on non-existent entities due to amalgamation, the exclusion of certain companies from comparables, the determination of ALP for international transactions, and the procedural requirements for passing draft assessment orders post remand. The appeals were partly allowed for statistical purposes, with directions for fresh proceedings in compliance with legal standards and procedural fairness.