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TMI Blog2015 (9) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that pursuant to amalgamation, the amalgamating company gets dissolved without winding up and ceases to exist in the eyes of the law and no assessment can be validly framed in the name of such entity. 2. That the Commissioner of Income Tax (Appears) erred on facts and in law in confirming disallowance of Rs. 35,31 ,0001- made by' the assessing officer in respect of provision for warranty made in respect of domestic sales, on the ground that appellant failed to establish that such provision was based on scientific data and/or actuarial study. 2.1 That the Commissioner of Income Tax (Appeals) erred on facts and in law in alleging that there was no basis for applying the data of international group company for the earlier years for cornputation of provision for warranty by the appellant for the relevant previous year. 2.2 That the Commissioner of Income Tax (Appeals) erred on facts and in law in not appreciating that provision for warranty made in succeeding assessment year was allowed by the DRP on the ground that he same was based on scientific estimate." 3. Briefly stated the facts giving rise to this appeal are that the original assessee Samsung Telecommunication India Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second appeal. It is also pertinent to note that the revenue has also filed cross appeal challenging the deletion of addition made by the AO on account of royalty expenses and advertisement and sales promotion expenses. 5. We have heard arguments of both the sides and perused the relevant material available on record. Ld. Counsel of the assessee submitted that despite letter dated 3.10.2008 filed before the AO during the course of assessment proceedings informing the claim of amalgamation sanctioned by Hon'ble High Court vide order dated 20.8.2008 w.e.f. 1/4/2008 that the amalgamating company STIPL has ceased to exist pursuant to filing such amalgamation order before the ROC but the AO passed impugned assessment order on 30.11.2009 u/s 143(3) of the Act in the name of non-existent amalgamating company, therefore, the assessment order is without jurisdiction, illegal and void ab initio. Ld. Counsel also pointed out that during the assessment proceedings the appellant vide letters dated 17.11.09 and 24.11.2009 repeatedly informed the AO disclosing the fact of amalgamation and subsequent dissolution of amalgamated company but the AO ignored this important legal situation and passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment. The A. R. has relied upon certain judicial pronouncements where facts are different and the company had been dissolved or the individual or HUF was not in existence. However, in the present case M/s STIPL had got amalgamated into another company along with its assets, liabilities, rights and legal obligations. It is pertinent to note that just because a company had amalgamated with another company would not result in all legal obligations to cease to exist. The assessing officer had completed the assessment based on the return of income filed by the assessee and the A.R. of the appellant has nowhere pointed out that through its order of amalgamation, the Hon'ble Delhi High Court had passed any such order where any existing liabilities and obligations of any STIPL were allowed to lapse while the amalgamation was carried out. Therefore, it is absurd to accept the argument only because M/s STIPL were merged with M/s Samsung India Electronics P. Ltd. there would be no obligation or legal follow up of the income tax provisions to complete the assessment u/s 143(3) of the I. T. Act. Keeping in view the above observations, I do not find any merit in the arguments of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns after taking the proceedings afresh from the stage of issuance of notice u/s 143(2) of the Act. It was also held that in substitute the name of the appellant/amalgamated company in the place of amalgamating company may be given and then notice may be issued as per provisions of the Act. 10. In the light of ratio of decision of Hon'ble High Court, when we analyse the facts and circumstances of the present case, we clearly observe that undisputedly and admittedly, the return was filed by STIPL amalgamating company on 30.11.2006. The AO issued notices u/s 143(2) and 142(1) of the Act in the name of amalgamating company. Subsequently, letter dated 3.10.2008 was filed before the AO during the course of assessment proceedings informing the scheme of amalgamating sanctioned by the Hon'ble High Court vide order dated 22.8.2008 and the amalgamating company i.e. STIPL ceased to exist in pursuance to filing of such order before the Registrar of Companies w.e.f. 1.4.2008. Letters dated 17.11.2009 and 24.11.09 were also filed before the AO duly disclosing the factum of amalgamation and subsequent dissolution of the amalgamating company STIPL with the amalgamated company SIEPL. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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