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TMI Blog2022 (9) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 - Shri Chandra Poojari, AM And Shri George George K, JM For the Appellant : Sri.Padam Chand Khincha, CA For the Respondent : Sri.Manjunath Karkihalli, CIT-DR ORDER PER GEORGE GEORGE K, JM : This appeal at the instance of the assessee is directed against final assessment order dated 26.02.2022 passed u/s 143(3) r.w.s. 144C(13) of the I.T.Act. The relevant assessment year is 2017-2018. 2. The brief facts of the case are as follows: The assessee, namely, Biocon Biologics Limited [successor. to Biocon Research Limited with appointed date 01.04.2019] is engaged in the carrying out Research and Development ( R D ) of drugs and drug delivery systems. For the relevant Assessment Year ( AY ) 2017-18, the return of income was filed on 30.11.2017, declaring `Nil income under the normal provisions of the I.T.Act and book losses as per the provisions of section 115JB of the I.T.Act. After considering the taxes deducted at source, the assessee had claimed refund of INR 4,68,29,020 in the return of income. 3. The return of income was selected for scrutiny and notice u/s 143(2) of the I.T.Act was issued. During the course of assessment proceedings, refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and therefore, are bad in law. 2. The Ld. AO/ DRP erred in making additions amounting to Rs. 1,11,67,553 to the income of the Appellant. 3. Validity of assessment proceedings on non-existent entity For that upon facts and circumstances of the case, 3.1 the Ld. AO was not justified in passing the final assessment order and the draft assessment order in the name and PAN of a non-existent entity despite having knowledge of the merger, rendering the final assessment order and the draft assessment order void. 3.2 the Ld. DRP was not justified in holding that the defect in passing the draft assessment order was curable and in directing the Ld. AO to substitute the name of the amalgamated company in the final order since the draft assessment order was void ab initio. 3.3 the Ld. AO has erred in not referring to the various submissions filed by the Appellant with respect to the merger of BRL with the Appellant and passing the order without any application of mind which is in violation of law. 3.4 the Order passed by the Ld. AO is beyond jurisdiction and should be quashed as the learned AO has no jurisdiction to pass the assessment order assessing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and passing the impugned Order, which is in violation of proceedings under the Faceless Assessment Scheme and in violation of the principles of natural justice. 5.2. not providing any reasons for disallowing the foreign exchange loss and without providing any opportunity of being heard to the Appellant. 5.3. disallowing the foreign exchange loss on fixed assets amounting to Rs.1,36,423, without appreciating the fact that the Appellant has disallowed the aforesaid amount in the tax computation, thereby resulting in double disallowance of the same amount. 5.4. Without prejudice to ground 5.1 to 5.3 above, the Ld. AO/ DRP has erred, in law and on facts, in not granting corresponding relief under section 10M of the Act on the enhanced profits arising due to disallowance of foreign exchange loss on fixed assets. The Appellant submits that each of above grounds is independent and without prejudice to one another. The Appellant craves leave to add, alter, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal, so as to enable the Hon'ble Tribunal to decide on the appeal in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment order was still issued in the name of Biocon Research Limited. The assessee summarized the detail of communication in a chronological order with regard to the merger. For ready reference, the same is reproduced below:- Particulars Date of order / submission Filed with NCLT approval 04.02.2020 AO and DRP Email intimation 15.05.2020 Jurisdictional AO Submission before the AO 19.02.2021 NFAC Submission before the AO 08.03.2021 NFAC Submission before the AO 15.04.2021 NFAC Objection with the DRP 27.05.2021 DRP 11. The Hon ble Apex Court in the case of Maruti Suzuki India Limited (supra), after referring to various judicial pronouncements, had concluded that the assessment order passed on a non-existing company, i.e., the amalgamated company having ceased to exist as a result of approval scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) and Spice Infotainment (supra) for the following reasons:- Mahagun Realteors (P.) Ltd. (MRPL) did not intimate the fact of amalgamation prior to the issue of the assessment order. Mahagun Realtors (P.) Ltd. did intimate Tax Authorities about amalgamation, it was for subsequent assessment years and not for the assessment year under consideration. Mahagun Realtors (P.) Ltd. itself undertook various compliances such as furnishing of tax returns, correspondences with the Tax Authority, filing of appeal before appellate authorities etc. in the name of the amalgamating company, which had ceased to exist. 13. The Hon ble Apex Court further held that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on bare application of corporate law provisions but would depend on the terms of amalgamation and the facts of each case. It was further held that the assessment order was issued in the name of Mahagun Realtors (P.) Ltd. represented by amalgamated company and it was only for the first time before the Tribunal that the objection was raised on validity of assessment in the name of the tax payer in v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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