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2. The order of the AO is beyond the limitation vested in the AO under section 153(2A) of the Act and hence barred by limitation.
3. That without prejudice the directions of the Dispute Resolution Panel are also barred by limitation since the same were not passed within the period prescribed under section 144C of the Act and consequently the final assessment order passed is bad in law on this count also.
4. The AO grossly erred in making the assessment on the basis of return of income ("ROI") of Adobe Systems India Pvt. Ltd. and not on the basis of ROI of Adobe Software India Pvt. Ltd. (now amalgamated with Adobe Systems India Pvt. Ltd.) in gross violation of the provisions of section 170 of the Act.
5. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that the assessee M/s Adobe Software India Pvt. Ltd., amalgamated w.e.f. 01.04.2006 with M/s Adobe Systems India Pvt. Ltd. vide order dated 06.09.2007 of the Hon'ble Jurisdictional High Court. It was further stated that the assessee intimated the AO vide letter dated 18.09.2008 that the assessee company i.e. M/s Adobe Software India Pvt. Ltd. merged with M/s Adobe Systems India Pvt. Ltd. and also requested to transfer the relevant records of M/s Adobe Software India Pvt. Ltd. to the Assistant Commissioner of Income Tax, Circle, Noida, Adobe Software India Pvt. Ltd.
Adobe Software India Pvt. Ltd. may be withdrawn as DCIT Bangalore was seized of assessment proceedings for the assessment year 2006-07 for a period prior to merger. It was further stated that the second round of letter was addressed by the AO in March 2013 to the assessee i.e. Amalgamating Company M/s Adobe Systems India Pvt. Ltd. who responded, therefore, the matter stands fortified with provisions of Section 292B of the Act, particularly when the second round and first round of DRP order was in the name of M/s Adobe Systems India Pvt. Ltd. i.e. Amalgamating Company. It was further stated that the notices issued by the AO having the jurisdiction of M/s Adobe Systems India Pvt. Ltd. were responded and the said assessee participated in the proceedings before the AO in respect of tax liability of the Amalgamated Company i.e. M/s Adobe Software India Pvt. Ltd.. It was further stated that the AO specifically mentioned about the fact of amalgamation of M/s Adobe Software India Pvt. Ltd. with M/s Adobe Systems India Pvt. Ltd. at page no. 1 of the draft assessment order dated 30.12.2009 passed u/s 144C of the Act. It was contended that mentioning of words 'now amalgamated with Adobe Systems India Pvt. Ltd.' in order dated 30.12.2009 was procedural irregularities and the assessment framed by the AO was valid assessment. The reliance was placed on the following case laws:
12. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the Adobe Software India Pvt. Ltd.
present case, it is an admitted fact that the assessee company i.e. M/s Adobe Software India Pvt. Ltd. amalgamated with M/s Adobe Systems India Pvt. Ltd. w.e.f 01.04.2006 vide order dated 06.09.2007 of the Hon'ble Allahabad High Court. In the present case, this was the contention of the ld. Counsel for the assessee that the intimation of amalgamation was sent to the AO vide letter dated 18.09.2008. However, the contention of the ld. DR was that no evidence was furnished by the assessee as to whom the intimation of amalgamation was given by the assessee. In the present case, it is not clear as to whether, this fact that M/s Adobe Software India Pvt. Ltd. was not in existence was considered at the time of passing the order u/s 92CA(3) of the Act dated 26.10.2009 by the TPO or the draft assessment order dated 30.12.2009 u/s 144C of the Act by the AO. In the present case, it is true that this issue was not raised before the DRP, as such no findings have been given by the DRP. However, being a legal issue, it can be raised at any stage but the opportunity is required to be given to the department also. Since the facts need verification, we therefore, deem it appropriate to set aside this issue back to the file of the DRP to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee, the cases relied by the ld. Counsel for the assessee are also to be considered.