M/S. EMERSON PROCESS MANAGEMENT (INDIA) PVT. LTD (SUCESSOR IN INTEREST FOR PENTAIR VALVES AND CONTROLS PVT LTD,MUMBAI vs. ADDL/JT/CIT/DY/ACIT/NFAC, MUMBAI

These are the two appeals filed by the Emerson Process Management (India) Pvt. Ltd. (Successor-in-Interest for Pentair Valves and Controls India Private Limited) for A.Y. 2017-18 and 2018-19.

ITA No.772/Mum/2022 is filed by the assessee for A.Y. 2017-18 against the assessment order passed by the National Faceless Appeal Centre, Delhi (the learned Assessing Officer) dated 24th February, 2022, wherein the total income of the assessee is assessed at ₹33,64,46,601/-, as per normal computation of income

The ground no.1 raised by the assessee is despite intimation to ld AO, Ld. TPO, LD DRP, assessment has been made by the learned Assessing Officer in the name of Emerson Process Management (India) Pvt. Ltd under Section 143(3) read with section 144C (13) of the Act, however, the draft assessment order, Transfer pricing Assessment order and Direction of Dispute Resolution Panel were passed in the name of Pentair Valves and Controls India Private Limited. It was submitted that

The brief fact of the case shows that i National Law Company Tribunal, Ahmadabad, has passed order on 5th December, 2019, by which Pentair Valves and Controls India Private Limited by scheme of amalgamation is amalgamated with M/s Emerson Process Management (India) Pvt. Ltd. Further, NCLT Mumbai order dated 14th November, ii 2019, scheme of merger by absorption has also been passed thereby Pentair Valves and Controls India Private Limited emerged with Emerson Process Management (India) Pvt. Ltd. iii Form No. INC28 [The Companies Act 2013 and Rules there under] in this regard was also filed completing the process of merger of Pentair Valves and Controls India Private Limited with Emerson Process Management (India) Pvt. Ltd. On 31st January, 2020, the Addl. Commissioner of iv Income Tax, Transfer Pricing Officer, Ahmadabad, was intimated about this merger vide Para no.7 of the letter stating that Pentair Valves and Controls

Challenging the above order, the learned Authorized Representative submitted that the draft assessment order, order of the learned Transfer Pricing Officer and the direction of the learned Dispute Resolution Panel were all passed in the name of a non-existing entity and therefore, the final assessment order though passed in the name of correct entity does not survive. The learned Authorized Representative referred to his paper book containing 86 pages on this issue.

The learned Departmental Representative vehemently supported the order of the learned Assessing Officer and submitted that it is only the final assessment order which

We have carefully considered the rival contentions and perused the orders of the lower authorities. The fact clearly shows that with effect from 1st April, 2019, Pentair Valves and Controls India Private Limited, was amalgamated with Emerson Process Management (India) Pvt. Ltd. as per the orders of the National Company Law Tribunal, Mumbai and Ahmadabad benches. Thus after that date Assessee has intimated the fact of amalgamation to the learned Transfer Pricing Officer and learned Assessing Officer. Despite this, LD TPO passed T P Order U/s 92CA 93) and LD AO passed draft assessment order U/s 144C (1) of the Act in the name of a non existing entity. It is not the case of the Revenue that assessee has not intimated the fact of the merger. Despite this, the above two authorities passed the order under Section 92CA (3) of the Act and draft assessment order under Section 144C (1) of the Act in the name of non-existing entity. Before the learned Dispute Resolution Panel assessee filed objection by the Emerson Process Management (India) Pvt. Ltd. In objection no.1 itself, in statement of facts, the fact of merger was intimated. The assessee also submitted that despite this, the transfer pricing order and draft assessment order are passed in the name of non-existing entity. Despite above facts available, before the learned Dispute Resolution Panel on 18th January, 2022, the learned Dispute Resolution Panel also

Therefore, the final order passed under section 144C (13) of the act assessing the total income of the assessee at ₹ 81,843,687/– is also invalid. Therefore, the final assessment order is not sustainable in law and hence quashed.

In view of above finding, without going on the merits of the case, the final assessment order passed by the learned assessing officer dated 28/6/2022 is quashed.

In the result, ITA number 2126/M/2022 filed by the assessee is allowed