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TMI Blog2022 (12) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee has raised various issues on the transfer pricing adjustment made in respect of the international transactions between assessee and its AE. 3. However, in ground no. 2, assessee challenges the validity of impugned order as it is passed on a non-existing entity i.e. erstwhile Marlabs Software Pvt. Ltd. The relevant grounds reads as under: "2. That on facts and circumstances of the case, the LAO has erred in passing the order on a non-existing entity i.e. erstwhile Marlabs Software Private Limited." 4. The Ld.AR relied on decision of Hon'ble Supreme Court in case of PCIT vs. Maruti Suzuki India Ltd. reported in (2019) 107 taxmann.com 375 wherein the Hon'ble Supreme Court has held that an income that was sought to be subjected to the charge of tax for the year was the income of the erstwhile entity prior to amalgamation. Under an approved scheme of amalgamation Hon'ble Supreme Court held that the transferee has assumed the liabilities of the transferor company, including tax liabilities. The consequence of the scheme of amalgamation approved u/s. 394 of the Companies Act, 1956 was that the amalgamating company ceased to exist. Hon'ble Supreme Court has held that upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will explain the facts of the Assessee's case and the facts of the case decided by the Hon'ble Supreme Court in the case of M/s.Maruti Suzuki India Limited (supra): Facts in the case of Maruti Suzuki India Ltd. Facts in the case of Assessee * Suzuki Powertrain India Limited (SPIL or amalgamating company) had amalgamated with Maruti Suzuki India Limited (MSIL or amalgamated company) by a scheme of amalgamation approved by the High Court (HC) on January 29, 2013, with effect from fiscal year commencing on April 1, 2012. * The scheme provided that all the assets, liabilities and duties of the amalgamating company be transferred to the MSIL and that the SPIL would stand dissolved without winding up. * On April 2, 2013 - the Assessee informed the AO that SPIL has amalgamated with MSIL. * On September 26, 2013 , the AO issued notice u/s.143(2) for AY 2011-12. * On September 4, 2015, the AO issued letters to the Assessee with the following description:- "The Principal Officer M/s Suzuki Powertrain India Limited (Now known as M/s Maruti Suzuki India Limited)" * On March 11, 2016, the AO passed draft assessment order in the name of SPIL. * On April 12, 2016, the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t operate as estoppel. 11. The facts of the Assessee's case is identical to the facts of the case decided by the Hon'ble Supreme Court in the case of M/s.Maruti Suzuki India Ltd.(supra). Since the assessee company ceased to be in existence as on the date when the AO passed the order of assessment, assessment so framed is not sustainable in the eyes of law, being a nullity. The Hon'ble Supreme Court in the case of M/s.Maruti Suzuki India Ltd. (supra), also dealt with the decision of the Hon'ble Delhi High Court in case of Sky Light Hospitality LLP vs. ACIT reported in (2018) 405 ITR 296 observed as under: "27. The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon'ble Mr Justice A K Sikri and Hon'ble Mr Justice Ashok Bhushan33. In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of this Court: "In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused." 28. The decision in Spice Entertainment was distinguished with the following observations: "19. Petitioner relies on Spice Infotainment Ltd. v. Commissioner of Service Tax, (2012) 247 CTR 500.Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. After notice under Section 147/148 of the Act was issued and received in the name of Spice Corp. Ltd., the Assessing Officer was informed about amalgamation but the Assessment Order was passed in the name of the amalgamated company and not in the name of amalgamating company. In the said situation, the amalgamating company had filed an appeal and issue of validity of Assessment Order was raised and examined. It was held that the assessment order was invalid. This was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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