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TMI Blog2025 (4) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Transfer Pricing Officer (TPO) who proposed an upward adjustment of Rs. 3,07,80,000/-. The Assessing Officer, in the draft assessment order, apart from making the above addition, also made addition of Rs. 24,70,183/- on account of health and education cess. Since the income returned at Rs. 25,34,90,210/- was processed u/s 143(1A) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), the Assessing Officer, after adding the TP adjustment of Rs. 3,07,80,000/- and the disallowance of health and education cess at Rs. 24,70,183/- determined the total income at Rs. 29,53,41,873/-. 3. Before the Dispute Resolution Panel (DRP), the assessee apart from challenging the addition on account of TP adjustment as well as disallowance of health and education cess, challenged the validity of assessment being made on a non-existing entity. The relevant ground before the DRP reads as under: "1.3 The Assesses company has ceased to exist pursuant to the merger with Capgemini Technology Services India Limited w.e.f. 1st April, 2020, duly approved by National Company Law Tribunal ('NCLT') order dated 24 June 2021. Accordingly, the draft assessment order u/s 144C(1) issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal by raising the following grounds: That on the facts and circumstances of the case, and in law; Legal Grounds 1. The impugned order of the ld. Assessing officer (AO) to the extent prejudicial to the Appellant, is bad in law, contrary to the facts and circumstances of case and liable to be quashed. Based on the facts and circumstances of the case and in law, the Dispute Resolution Panel (Hon'ble DRP) erred in upholding the adjustment of INR 2,68,72,632 to the taxable income of the Appellant including an adjustment of INR 2,10,10,000/- on account of transfer pricing matters and INR 58,62,632/- on account of corporate tax matters. 2. The Ld AO has erred in not providing a copy of the Central Board of Direct Taxes (Board) approval for transferring the instant case from National Faceless Assessment Centre ('NFAC) to learned AO. The Appellant prays that the learned AO be directed to provide a copy of the Board approval to the Appellant and in case the same is not obtained, the assessment order passed under Section 144C of the Income-tax Act. 1961 (The Act) by the Ld. AD is invalid and bad in law and needs to be quashed 3. On the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant to from its AEs are in the nature of ITES/ BPO services 5.6. not giving enough time to the Appellant to perform the fresh search based on the filters applied by The Lo TPO in its show-cause notice. 5.7. non-sharing of detailed comparability analysis, including search process and accept-reject matrix with the Appellant for the fresh search conducted by the Ld. TPO. 5.8. non-consideration/modification of filters used by the Appellant in the TP documentation and introducing new and inappropriate filters in order to reject the companies used by the Appellant in the TP documentation: 5.9. including functionally dissimilar companies ie. Vitae International Accounting Services Private Limited. Domex E-Data Private Limited and Syngene International Limited as comparables 5.10 rejecting the additional companies identified by the Appellant (being functionally similar and posses al the filters applied by Ld. TPO) le. Sundaram Business Services Limited, Datamatics Business Solutions Ltd. Tech Mahindra Business Services Ltd, Microland Ltd and CES Ltd. Grounds of Appeal with respect to Corporate Tax Adjustment 6 The Ld. AO, while passing the final assessment order, has gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is under-reporting of income done by the Appellant The above grounds are without prejudice to each other The appellant craves leave to alter, amend or withdraw all or any of the grounds herein or add any further grounds as may be considered necessary either before or during the hearing. 7. The Ld. Counsel for the assessee argued only the grounds challenging the validity of the order of the Assessing Officer in making the adjustment on a non- existing company. The Ld. Counsel for the assessee referring to page 28 of appeal set, drew the attention of the Bench to the name and address of the assessee mentioned by the DRP which read as under: 1 Name & Address of the assessee Liquidhub Analytics Private Limited (now merged with Capgemini Technology Services India Limited) A-16/9, Vasant Vihar, New Delhi 110057, Delhi, India 8. Referring to page 61 of the appeal set, he submitted that the assessee vide letter dated 02.09.2022 has filed the following objection before the DRP: "Ground of objection 1.3 10.3. The assessee submits that the impugned draft assessment order is invalid, bad in law and needs to be quashed in light of the reasons discussed below. a) Without preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T & Ors. vide WP Nos.6076 to 6081 of 2023, order dated 29.01.2025 4. Garrett Motion Technologies (India) Pvt. Ltd. vs. DCIT vide ITA No.443/PUN/2015 order dated 07.09.2021 5. Amdocs Development Centre India LLP [TS-514-ITAT-2019(PUN)-TP] 6. Pr. CIT vs. Culver Max Entertainment (P.) Ltd. (2024) 169 taxmann.com 586 (Bom) 12. The Ld. DR on the other hand supported the order of the AO / TPO / DRP. 13. We have heard the rival arguments made by both the sides, perused the order of the Ld. Assessing Officer/ TPO / DRP and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case passed the final order in the name of Liquidhub Analytics Pvt. Ltd. a non-existent company, despite the fact that the assessee company is ceased to exist pursuant to its merger with Capgemini Technology Services India Limited w.e.f. 01.04.2020 which was duly approved by the NCLT vide order dated 24.06.2021 and which fact was also known to the Assessing Officer. Despite this the Assessing Officer has passed the order on a non-existing company. 14. We find the Hon'ble Bombay High Court in the case of PCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 2017, there was a subsequent communication dated 27 January 2017. The Tribunal observed that such factual position as pointed out by the assessee was not assailed by the department. 3. In the aforesaid circumstances, in our view, the findings, as recorded by the Tribunal in paragraph 4 rejecting the Revenue's appeal following the decision of the Supreme Court in Maruti Suzuki India Ltd (supra), cannot be faulted and are in accordance with law. The said findings read thus:- 4. Moreover, on similar issue in an appeal by assessee before coordinate bench vide ITA No. 2130/MUM/2017, dated 19.09.2022 for A.Y. 2012-13, matter adjudicated in favour of assessee on the ground of jurisdictional defect. Respectfully following the decision of coordinate bench mentioned (supra) on similar facts in assessee's own case and law declared by the Hon'ble Apex Court in the case of PCIT v. Maruti Suzuki India Ltd reported in [2019] 107 taxmann.com 375/265 Taxman 515/416 ITR 613 (SC)/Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375/265 Taxman 515/416 ITR 613 (SC)(SC), we are of considered view that assessment made in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), PUNE To AMANORA FUTURE TOWERS PRIVATE LIMITED 917/19A CITY CHAMBERS, F.C. ROAD PUNE PUNE 411004, Maharashtra India PAN : AAKCA3074H A.Y : 2013-14 Dated : 31/03/2023 DIN & Notice No: ITBA/AST/S/148_1/2022- 23/1051822997(1) Notice under section 148 of the Income-tax Act, 1961 Sir/Madam/ M/s. I have information that a search was initiated under section 132 of the Act in your case or in the case of the person in respect of which you are the assessable under the Act on the date 15/02/2023. This notice is being issued after obtaining the prior approval of the PCCIT, PUNE accorded on date vide Reference No. 100000038654133. 2. I, therefore, propose to assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for the Assessment Year 2013- 14 and I, hereby, require you to furnish, within 30 days from the service of this notice, a return in the prescribed form for the Assessment Year 2013-14. GANESH SHAMRAO RAKH CIRCLE 1(1), PUNE" 16. The impugned notices in the connecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : - "4.2. With reference to the contents of Para No. 3 A of the Writ Petition, notice issued u/s. 148 of the Income-tax Act, 1961 (hereinafter referred as 'the Act') dated 31/03/2023 issued by the Respondent No. 1 in the case of the petitioner for A.Υ. 2013-14. I deny that the notice issued by respondent No. 1 is bad-in-law, illegal or unlawful as the same is issued on to a non- existing company which is merged with Amanora Future Tower Private Limited. The petitioner grounds that the notices were issued on non-existent entity. In this regard, it is to submit that the seized material is for assessment years prior to merger of Amanora Future Towers Private Limited (PAN:AAKCA3074H) into City Corporation Limited (PAN:AACCC2820K) i.e. the seized material is showing the transaction in the name of Amanora Future Towers Private Limited (referred hereinafter as 'AFTPL'), the information is related to Amanora Future Towers Private Limited and same were reflected on the PAN of Amanora Future Towers Private Limited on insight portal. The insight portal shows and highlights/flags information as per the PAN and Name of the Party. A search action was conducted on 15/02/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I reiterate my comments in the earlier paragraphs of this reply and agree that the amalgamation of the company was brought to notice of the Department. I say that the notice was issued on the non-existing company due to technical glitch in the system wherein no field in the notice u/s 148 of the Act is editable." 21. The averments in the above paragraphs support the Petitioner's case. In paragraph 4.3, there is a clear admission that the amalgamation of the company was brought to the notice of the Department. The only explanation is that " notice was issued on the non-existing company due to technical glitch in the system wherein no field in the notice u/s 148 of the Act is editable." 22. In paragraph 4.2, the approval obtained from the Principal Commissioner for the issue of impugned notices is emphasised. The affidavit states that files were moved proposing notices in the names of both entities, AFTPL and the Petitioner (CCL). There was a reference to seizure proceedings, the two PAN numbers, and the lack of an editable field on this notice. Therefore, it was submitted that the notice was generated on AFTPL's PAN. 23. In short, the averments in paragraphs 4.2 and 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing company. "This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B". 27. The argument now sought to be raised by Mr Suresh Kumar based on Skylight Hospitality LLP (supra) was considered and rejected by the Gujarat High Court in Anokhi Realty (P) Ltd. Vs. Income-tax Officer5. In Adani Wilmar Ltd. Vs. Assistant Commissioner of Income-tax6, another Division Bench of the Gujarat High Court rejected the Revenue's argument based on lack of inter-departmental coordination or non-application of mind when materials relating to amalgamation were already available with the department. The Court held that based upon such grounds, notices could not have been issued to a non-existent company. 28. The Delhi High Court, in the case of Principal Commissioner of Income Tax - 7, Delhi Vs. Vedanta Limited 7 rejected a contention very similar to that raised by Mr Suresh Kumar, relying on Skylight Hospitality LLP (supra). The Delhi High Court noted that the decision of the Supreme Court in Maruti Suzuki (supra), while enunciating the legal position concerning an order being framed in the name of a non- existent entity, had unequivocally held a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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