2020 (11) TMI 116 - AT - Income Tax

Assessment framed in the name of non-existing entity - scheme of amalgamation conceived - DR submitted that notice u/s 143(2) was validly served on the amalgamating company - HELD THAT - The amalgamating company i.e. Genpact India was not in existence at the time of conducting assessment proceedings as well as on the date of passing Assessment Order. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Thus, in light of the decision of the Maruti Suzuki 2019 (7) TMI 1449 - SUPREME COURT is relevant in the present case as well and hence additional ground is allowed. Hence, the Assessment order itself is void ab initio. Therefore, assessment order is set aside. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order passed on a non-existent entity.
2. Enhancement of income by the Assessing Officer (AO) based on Transfer Pricing adjustments.
3. Imputation of interest on outstanding receivables from Associated Enterprises (AE).
4. Levy of interest under sections 234A, 234B, and 234C of the Income Tax Act.
5. Disregard of judicial pronouncements by the AO in undertaking Transfer Pricing adjustments.

Detailed Analysis:

1. Validity of the Assessment Order:
The primary issue was the validity of the assessment order passed on a non-existent entity, Genpact Infrastructure (Hyderabad) Pvt. Ltd., which had amalgamated with Genpact India w.e.f. April 1, 2010. The AO was informed about the amalgamation through a letter dated January 24, 2011. Despite this, the assessment order was passed in the name of the erstwhile company. The Tribunal relied on the Supreme Court's decision in Maruti Suzuki India Ltd., which held that an assessment order passed on a non-existent entity due to amalgamation is void ab initio. Consequently, the Tribunal set aside the assessment order, deeming it void and bad in law.

2. Enhancement of Income Based on Transfer Pricing Adjustments:
The AO enhanced the income of the appellant by INR 83,857,011, holding that the international transactions did not satisfy the arm's length principle. The AO's errors included:
- Not appreciating that the conditions in section 92C(3) were not satisfied.
- Imputing a markup on reimbursement of expenses, treating them as core transactions.
- Rejecting adjustments for unutilized capacity.
- Disregarding the Transfer Pricing documentation maintained by the appellant.
- Using only current year data for comparables and rejecting multiple year data.
- Conducting a fresh comparability analysis with revised filters, including the exclusion of certain companies based on various criteria.
- Including high-profit companies and those with significantly higher turnover in the comparables set.
- Arbitrarily rejecting low-profit/loss-making companies and excluding certain comparable companies on frivolous grounds.
- Violating natural justice principles by not sharing information obtained under section 133(6) with the appellant.

3. Imputation of Interest on Outstanding Receivables from AE:
The AO enhanced the income by INR 8,551,748, treating outstanding receivables from AE as a loan facility and imputing interest at 17.26%. The appellant argued that:
- Outstanding receivables are not independent transactions and should be examined with the commercial transaction.
- The credit period provided was within the RBI guidelines.
- Working capital adjustment already accounted for the impact of outstanding receivables.
- If interest imputation was necessary, the LIBOR rate should be applied instead of an ad-hoc rate.
- The appellant, being a non-investment company, would park funds in short-term risk-free schemes rather than risky loan deals.

4. Levy of Interest under Sections 234A, 234B, and 234C:
The AO levied interest under sections 234A, 234B, and 234C mechanically without recording satisfactory reasons. The appellant contended that the levy of interest was erroneous and lacked proper justification.

5. Disregard of Judicial Pronouncements:
The appellant argued that the AO disregarded various judicial pronouncements in India while undertaking Transfer Pricing adjustments, which led to an erroneous enhancement of income.

Conclusion:
The Tribunal allowed the appeal, setting aside the assessment order as void ab initio due to it being passed on a non-existent entity. Consequently, there was no need to address the merits of the case related to Transfer Pricing adjustments and other issues. The appeal was allowed in favor of the assessee.