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TMI Blog2023 (7) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order passed in the name of nonexistent entity in the name of Solvay Pharma Ltd is void and liable to be quashed. X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of Ahmadabad Electricity Company Ltd. Vs. CIT (1993) 199 ITR 351 (Bom). 7. The learned Authorized Representative reiterated the above submission and requested that additional ground may be admitted. 8. The learned Departmental Representative vehemently opposed the application for admission of additional grounds stating that above grounds were never raised before the learned lower authorities and therefore, at this stage it cannot be admitted. 9. On careful consideration of the additional ground raised and reasons advances for its admission, we find that the additional ground raised by the assessee goes to the root of the matter and does not involve any fresh investigation of facts. Assessee challenges the validity of the final assessment order passed. The various decision of the Hon'ble Supreme Court and decision of the Hon'ble Bombay High Court also support admission of the additional ground. Not raising before the lower authorities a particular issue cannot be ground for not admitted the additional ground. In such circumstances only the provisions of admission of the additional grounds are introduced. In view of above, we admit additional ground raised by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd once again submitted the various communications already addressed to the assessing officer with respect to the above aspect. This letter is in response to notice under section 142 (1) for assessment year 2008 - 09. (Page number 40 of the paper book). v Vide letter dated 17 October 2011 filed before the learned transfer pricing officer placed at page number 45 - 52 of the paper book was furnished by Abbott India Ltd. vi Subsequently all the correspondences were made by Abbott India Ltd before the learned assessing officer/learned TPO and the learned dispute resolution panel. vii The objections in form number 35A was also filed by Abbott India Ltd however the assessee himself mentioned the name of the eligible assessee as Solvay Pharma India Ltd (now merged with Abbott India Ltd). Assessment year 2009 - 10 viii On 17 July 2013 assessee informed the learned assessing officer about the change of address giving the address of Abbott India Ltd and specifically mentioning in the paragraph number 1 of the letter that according to the scheme of merger of Solvay Pharma India Ltd with Abbott India Ltd has been approved by the honourable High Court with effect from 1 January 2011. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted on 9 January 2014 also submits the fact of the amalgamation. 12. For assessment year 2008 - 09 the order under section 92CA (3) of The Income Tax Act 1961 was passed by The Additional Commissioner Of Income Tax Transfer Pricing -II (4), Mumbai (the learned TPO) on 25/10/2011 in the name of Solvay Pharma India Ltd. 13. For assessment year 2008 - 09 draft assessment order was passed by the learned assessing officer on 26/12/2011 in the name of Solvay Pharma India Ltd. 14. Learned DRP Mumbai passed direction on 30/7/2012 in the name of Solvay Pharma India Ltd whereas form number 35A being objections to the draft assessment order clearly mentions the eligible assessee as Solvay Pharma India Ltd (now merged with Abbott India Ltd). It was also verified by the director of Abbott India Ltd. 15. Consequently the final assessment order was passed on 31/10/2012 in the name of Solvay Pharma India Ltd. 16. The claim of the learned authorized representative is that by various correspondence the assessing officer as well as the learned dispute resolution panel was intimated about the amalgamation of Solvay Pharma India Ltd with Abbott India private limited however, despite above commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 149 taxmann.com 380/Order dated 10th February 2022 in Writ Petition No. 2462 of 2022 (passed by the bench of whom one of us viz. Hon'ble Justice Dhiraj Singh Thakur was a member) has held that an active PAN of a non-existent company cannot create an exception in favour of the revenue to dilute in any manner the principles enunciated by the following judgments: i. The judgment of the Apex Court in the case of Saraswati Industrial Syndicate Ltd. v. CIT [1990] 53 Taxman 92/186 ITR 278 which held that when two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another; the amalgamating company loses its entity; ii. The judgment of the Delhi High Court in the case of Spice Entertainment Ltd. v. CST 2012 (280) ELT 43 (Delhi) which held that once the factum of amalgamation of a company had been brought to the notice of the A.O., despite which the proceedings are continued and an order of assessment passed in the name of non-existent company, the order of assessment would not be merely a procedural defect but would render it void; and iii. The judgment of the Apex Court in the case of Pr. CIT v. Maruti Suzuki India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2008 - 09. 21. With respect to assessment year 2009 - 10 also the facts are identical. The assessee has submitted a paper book containing 81 pages wherein the various correspondences also shows that the learned assessing Officer was intimated of the fact of amalgamation of Solvay Pharma Ltd. Solvay Pharma Ltd was a non-existent entity post amalgamation. For assessment year 2009 - 10 the learned transfer pricing officer in order passed under section 92CAl (3) of the act dated 30/1/2013 in the first paragraph itself mentioned about the fact of amalgamation. The transfer pricing officer's order was passed in the name of Solvay Pharma India Ltd. The draft assessment order dated 22/3/2013 is also passed in the name of Solvay Pharma India Ltd and consequently the directions of the learned dispute resolution panel dated 20/12/2013 specifically mentioned in the name of the assessee as Solvay Pharma India Ltd (now Abbot India Ltd). In the paragraph number 2 of the direction of the learned dispute resolution panel the fact of the amalgamation is clearly mentioned. Despite the above facts the final assessment order passed under section 143 (3) read with section 144C (13) of the act dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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