2020 (8) TMI 599 - AT - Income Tax

Notice u/s 143(2) to the amalgamating company i.e a non-existent entity - Validity of assessment - HELD THAT - Hon ble Supreme Court in the case of Pr. CIT Vs. Maruti Suzuki India Ltd. 2019 (7) TMI 1449 - SUPREME COURT had observed, that where the A.O despite being informed of the fact that the amalgamating company had ceased to exist as a result of the approved scheme of amalgamation, had issued the notice u/s 143(2) in the name of the amalgamating company, the very basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceased to exist upon the approved scheme of amalgamation. Participation in the proceedings by the assessee cannot operate as an estoppel against law. On the basis of our aforesaid observations, we are of the considered view that neither the issuance of the notice u/s 143(2) to the amalgamating company i.e a non-existent entity be construed as a notice issued to the amalgamated company, nor the same be validated by bringing it within the realm of a procedural irregularity within the meaning of Sec. 292B. A strong conviction that non-issuance of a notice u/s 143(2) to the amalgamated company, which forms the very foundation for framing of a valid assessment would divest the A.O of his very jurisdiction to frame such assessment. We would mince no words in concluding that the non-issuance of a notice u/s 143(2) to the amalgamated company viz. M/s Siemens Limited, PAN No. AAACS0764L, would therein render the impugned assessment framed by the A.O u/s 143(3) r.w.s 144C(13), dated 30.01.2017 as invalid and void ab initio. Accordingly, the impugned assessment framed by the A.O de hors issuance of any notice u/s 143(2) to the amalgamated company cannot be sustained, and is thus quashed for want of jurisdiction. The additional ground of appeal raised by the assessee is allowed.

Issues Involved:
1. Addition to total income.
2. Rejection of functionally comparable companies.
3. Selection of additional companies by TPO.
4. Inclusion of Kitco Ltd. and TCE Consultation Engineers Ltd. as comparable companies.
5. Denial of working capital adjustment.
6. Treatment of foreign exchange gain/loss.
7. Profitability impact due to the period of assessment.
8. Assessment order issued to a non-existent entity.
9. Non-compliance with Section 92C(3) conditions.
10. Use of multiple year financial data for margin computation.
11. Initiation of penalty proceedings under section 271(1)(c).
12. Independent and without prejudice nature of grounds.
13. Right to add, alter, amend, or withdraw grounds of appeal.

Detailed Analysis:

1. Addition to Total Income:
The assessee challenged the addition of ?8,14,89,376 to its total income, upheld by the TPO, AO, and DRP. The tribunal examined the validity of this addition based on the legal and factual matrix presented.

2. Rejection of Functionally Comparable Companies:
The TPO and DRP rejected all seven functionally comparable companies selected by the assessee without identifying deficiencies in the benchmarking analysis. The tribunal scrutinized the rejection process and the criteria used by the TPO.

3. Selection of Additional Companies by TPO:
The TPO cherry-picked additional companies without considering the assessee's detailed submissions for rejecting these companies. The tribunal evaluated whether the TPO's selection process was justified and aligned with the principles of comparability.

4. Inclusion of Kitco Ltd. and TCE Consultation Engineers Ltd.:
The DRP rejected the assessee's contention to exclude Kitco Ltd. and TCE Consultation Engineers Ltd. from the set of comparable companies. The tribunal assessed the functional comparability of these companies with the assessee.

5. Denial of Working Capital Adjustment:
The DRP denied the assessee's request for working capital adjustment as per Rule 10B(3) of the Income-tax Rules, 1962. The tribunal reviewed the justification for this denial and its impact on the comparability analysis.

6. Treatment of Foreign Exchange Gain/Loss:
The TPO treated foreign exchange gain/loss as non-operating, contrary to its treatment in previous assessment years (AY 2010-11 and AY 2011-12). The tribunal considered the consistency and rationale behind this treatment.

7. Profitability Impact Due to Period of Assessment:
The assessee argued that its profitability for the six months ended 30 September 2011 was significantly impacted compared to the full financial year (1 April 2011 to 31 March 2012). The tribunal examined if this period-specific impact justified any adjustment to the international transactions.

8. Assessment Order Issued to a Non-Existent Entity:
The AO issued the assessment order under the PAN of Siemens Power Engineering Private Limited, which had ceased to exist due to its merger with Siemens Limited effective from 1 October 2011. The tribunal found that the notice u/s 143(2) was issued to the non-existent entity, rendering the assessment void ab initio. Citing the Supreme Court's judgment in PCIT Vs. Maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC), the tribunal quashed the assessment for lack of jurisdiction.

9. Non-Compliance with Section 92C(3) Conditions:
The AO/TPO did not state reasons to show that conditions in clauses (a) to (d) of Section 92C(3) were satisfied before making an adjustment. The tribunal evaluated the procedural compliance and its implications on the assessment.

10. Use of Multiple Year Financial Data for Margin Computation:
The AO/TPO rejected the assessee's contention to use multiple-year financial data for computing margins of comparable companies. The tribunal assessed the appropriateness and necessity of using such data.

11. Initiation of Penalty Proceedings Under Section 271(1)(c):
The assessee requested the dropping of penalty proceedings initiated under section 271(1)(c). The tribunal considered the grounds for initiation and the merits of continuing such proceedings.

12. Independent and Without Prejudice Nature of Grounds:
The assessee's grounds of appeal were stated to be independent and without prejudice to one another. The tribunal acknowledged this declaration while addressing each ground.

13. Right to Add, Alter, Amend, or Withdraw Grounds of Appeal:
The assessee reserved the right to modify the grounds of appeal. The tribunal noted this right but did not find it necessary to address it further due to the quashing of the assessment.

Conclusion:
The tribunal quashed the assessment framed by the AO for want of jurisdiction due to the issuance of a notice u/s 143(2) to a non-existent entity, rendering the assessment void ab initio. Consequently, other grounds of appeal were left open and not adjudicated. The appeal of the assessee was allowed based on the tribunal's observations.

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