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TMI Blog2023 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Assessment Year ('A.Y.' for short) 2017-18 on the ground that the draft assessment order passed u/s. 143(3) r.w.s. 144C(1) and 144B of the Act and the transfer pricing order u/s. 92CA(3) of the Act was passed in the name and PAN of Aptar Beauty and Home India Pvt. Ltd., which was a non- est company on the date of passing of the said orders and the final assessment order passed u/s. 143(3) r.w.s. 144C(13) r.w.s. 144B of the Act was in the name of the amalgamated company without mentioning that it was the successor to Aptar Beauty and Home India Pvt. Ltd. in the PAN of non-existing entity was void-ab-initio. 2. The assessee has challenged the other grounds on the transfer pricing adjustment made by the A.O/TPO. 3. The brief facts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,24,13,346/-. The ld. TPO/A.O. vide an order dated 21.01.2021 revised the TP adjustment to Rs. 8,24,13,346/- and passed the final assessment order dated 16.02.2021 u/s. 143(3) r.w.s. 144C(13) r.w.s. 144B of the Act whereby the total income was determined at Rs. 6,03,44,796/-. 4. Aggrieved, the assessee is in appeal before us, challenging the impugned addition along with the ground that the assessment order was passed on a non est company. 5. It is observed that the assessee vide its submission dated 04.11.2022 filed an additional ground of appeal that the final assessment order dated 16.02.2022 is beyond the time limit prescribed u/s. 153 of the Act and, hence, barred by limitation. We hereby admit the additional ground filed by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Home India Pvt. Ltd. amalgamated with Aptar Pharma India Pvt. Ltd. which was a sister concern, by the approval of NCLT w.e.f. 01.04.2017. The ld. AR brought our attention to the chronology of events along with the dates to substantiate the fact that the draft assessment order and the TPO's order was passed post amalgamation in the name of the amalgamating company. The same is tabulated hereunder for ease of reference: Event Date Notice issued by ld. AO on Aptar Beauty under section 143(2) of the Act for the assessment proceedings 09 August 2018 Date of merger of Aptar Beauty and Home India Private Limited with Aptar Pharma India Private Limited (surviving entity) 30 November 2018 Notice issued by Learned TPO on Aptar Beauty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts in a plethora of judgments. This makes the position clear that no assessment shall continue in the name of a non existing company nor shall any order be passed in the name of the amalgamating company post merger. The relevant extract of the decision of the Hon'ble Apex Court in the case of Maruti Suzuki (supra) is cited hereunder for ease of ready reference: 33 In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. The present case in hand pertains to the draft assessment order and the transfer pricing order passed in the name of the amalgamating company, we would like to place our reliance on the decision of the coordinate bench in the case of FedEx Express Transporation and Supply Chain Services (India) Private Limited 108 taxmann.com 542 (Mumbai-ITAT)., wherein on identical facts, the Tribunal has held that the transfer pricing order u/s. 92CA(3) of the Act and the draft assessment order u/s. 143C(1) of the Act passed in the name of the amalgamating company which was non existing on the date of the passing of such order was illegal and bad in law and the Tribunal in this case had quashed the entire assessment proceeding to be illegal. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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