2023 (2) TMI 1053 - AT - Income Tax

Assessment u/s 144C - Validity of the draft assessment order passed in the name of the non-existing company - HELD THAT - As in light of the decision of the Hon ble Supreme Court in Maruti Suzuki India Ltd 2019 (7) TMI 1449 - SUPREME COURT the draft assessment order passed in the name of the non-existing company cannot be said to be a valid draft assessment order and therefore is set aside. Further, respectfully following the decision of FedEx Express Transportation and Supply Chain Services (India) (P.) Ltd. 2019 (7) TMI 1554 - ITAT MUMBAI all subsequent proceedings resulting from the invalid draft assessment order are also bad in law, void ab initio, and thus are ordered to be set aside. As a result, additional grounds raised by the assessee, are allowed.

Issues Involved:
1. Addition to total income.
2. Non-compliance with Section 92C(3) conditions.
3. Adjustment for turnkey project function.
4. Rejection of segmental profit and loss account.
5. Rejection of adjustment for extraordinary items.
6. Cherry-picking of additional companies.
7. Rejection of multiple year financial data.
8. Adjustment for intra-group administrative services.
9. Disallowance of expenses for certain services.
10. Non-existent entity's assessment.
11. Initiation of penalty proceedings.
12. Jurisdictional issues regarding the validity of assessment.

Issue-wise Detailed Analysis:

1. Addition to Total Income:
The assessee challenged the addition of Rs. 4,52,41,176 to its total income by the Transfer Pricing Officer (TPO) and the Assessing Officer (AO), which was upheld by the Dispute Resolution Panel (DRP).

2. Non-compliance with Section 92C(3) Conditions:
The assessee claimed that the AO/TPO did not provide reasons showing that the conditions mentioned in clauses (a) to (d) of Section 92C(3) of the Income Tax Act were satisfied before making the adjustment to the total income.

3. Adjustment for Turnkey Project Function:
The assessee contested the adjustment of Rs. 91,27,199 related to international transactions for the turnkey project function, which was upheld by the AO/TPO and the DRP.

4. Rejection of Segmental Profit and Loss Account:
The AO/TPO and the DRP rejected the segmental profit and loss account prepared by the assessee and adopted the entity-level margin for benchmarking analysis, which the assessee claimed was inconsistent with the previous year and lacked cogent reasons.

5. Rejection of Adjustment for Extraordinary Items:
The AO/TPO and the DRP rejected the assessee's claim for adjustment on account of extraordinary items without providing cogent reasons, despite detailed evidence filed by the assessee.

6. Cherry-picking of Additional Companies:
The AO/TPO and the DRP cherry-picked four additional companies for benchmarking analysis, which were previously rejected by the assessee. The assessee argued that this approach was ad-hoc, arbitrary, and inconsistent.

7. Rejection of Multiple Year Financial Data:
The AO/TPO and the DRP rejected the assessee's contention to compute the margin of comparable companies based on multiple year financial data without providing cogent reasons.

8. Adjustment for Intra-group Administrative Services:
The AO/TPO and the DRP made an adjustment of Rs. 3,61,13,977 related to international transactions for availing intra-group administrative services, which the assessee contested.

9. Disallowance of Expenses for Certain Services:
The AO/TPO and the DRP disallowed expenses related to certain services without providing cogent reasons, despite detailed evidence filed by the assessee.

10. Non-existent Entity's Assessment:
The assessee argued that the assessment order was passed under the Permanent Account Number of a non-existent entity, Siemens VAI Metals Technologies Pvt. Ltd., which had merged with Siemens Limited. The Tribunal found that the draft assessment order and subsequent proceedings were void ab initio as they were passed in the name of a non-existing entity, despite the assessee's intimation about the amalgamation.

11. Initiation of Penalty Proceedings:
The assessee contested the initiation of penalty proceedings under Section 271(1)(c) of the Act, requesting that the penalty proceedings be dropped.

12. Jurisdictional Issues Regarding the Validity of Assessment:
The Tribunal addressed the jurisdictional issues raised by the assessee, including the validity of the draft assessment order and directions issued by the DRP in the name of a non-existing entity. The Tribunal noted that the draft assessment order passed in the name of the non-existing entity was invalid, rendering all subsequent proceedings null and void.

Conclusion:
The Tribunal allowed the appeal by the assessee, setting aside the draft assessment order and all subsequent proceedings as void ab initio. The Tribunal did not address the other grounds on merits as they became academic in nature due to the relief granted on the jurisdictional issue.

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