CAPGEMINI TECHNOLOGY SERVICES INDIA LIMITED ( SUCCESSOR OF ARICENT TECHNOLOGIES HOLDINGS LIMITED),PUNE V. ASSISTANT COMMISSIONER OF INCOME TAX - CIRCLE 1(1), PUNE

ITA 2804/PUN/2024

AI Insights

The case involves Capgemini Technology Services India Limited, the successor in interest of Aricent Technologies (Holdings) Limited, which appealed against the assessment order for the assessment year 2021-22. The primary contention was that the TPO had passed an order under section 92CA(3) of the Income Tax Act, 1961, in the name of Aricent Technologies (Holdings) Limited, a non-existent entity post-amalgamation. The Tribunal noted that despite multiple notifications to the TPO about the merger, the order was still passed in the name of the non-existent entity. The Tribunal referenced a similar case involving the same parties for the previous assessment year, where it was held that such an order is a nullity and cannot be sustained.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 669370 (ITAT-PUNE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2021-2022
• Other Referred Cases: Capgemini Technology Services India Ltd vs. ACIT-1(1), Pune, M/s. Allscripts (India) LLP vs. NFAC
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATHADE
• Assessee Lawyers: NIKHIL PATHAK
• Keywords: Set aside; Transfer pricing; International transaction; Notional interest
• Section: 143(3); 15

Judgement Text

" आयकर अपीलीय अिधकरण ”सी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “C” :: PUNE BEFORE MS.ASTHA CHANDRA, JUDICIAL MEMBER, AND DR.DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.2804/PUN/2024 िनधाᭅरण वषᭅ / Assessment Year: 2021-22 Capgemini Technology Services India Limited[as successor in interest of erstwhile Aricent Technologies (Holdings) Limited-since amalgamated], Plot No.14, Rajiv Gandhi Infotech Park, Hinjewadi, Phase-III, MIDC SEZ, Village Man, Taluka Mulshi, District- Pune – 411057. Maharashtra. V s The Assistant Commissioner of Income Tax-1(1)(1), Pune. PAN: AACCK8280B Appellant/ Assessee Respondent / Revenue Assessee by Shri Nikhil Pathak – AR Revenue by Shri Prakash L Pathade –CIT(DR) Date of hearing 19/06/2025 Date of pronouncement /06/2025 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee against the Assessment Order under section 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 dated 29.10.2024 for the A.Y.2021-22, emanating from the ITA No.2804/PUN/2024 [A] 2 order of the Dispute Resolution Panel u/s.144C(5) of the Act, dated 23.09.2024. The Assessee has raised the following grounds of appeal : “1. The learned Assessing Officer (\"AO\") erred in passing the final assessment order dated 29 October 2024 under Section 143(3) read with Section 144C(13) of the income Tax Act, 1961 (\"the Act\") beyond the time limit prescribed under Section 153 of the Act making the proceedings bad in law and liable to be quashed. 2. The learned Dispute Resolution Panel (\"DRP\")/Transfer Pricing Officer (TPO)/ AO have erred, in law and on facts and circumstances of the case, in proposing an upward adjustment to the total income of the appellant as under a. Adjustment of INR 1,082,726,663 in respect of international transaction pertaining to provision of software development services (\"subject transaction\") entered into with its Associated Enterprises (\"AES\"); and b. Adjustment of INR 14,273,824 in respect of interest on delayed realisation of inter-company receivables. 3. The appellant company submits that the order passed by the learned TPO u/s. 92CA(3) dated 29.10.2023 is bad in law since the same has been passed in the name of Aricent Technologies (Holdings) Ltd. which has been amalgamated into Capgemini Technology Services India Ltd. and accordingly, as the said order has been passed in the name of an nonexistent entity, the order passed by the learned TPO and the consequential final assessment order be declared null and void. 4. The learned 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. 5. The learned AO grossly erred both on facts and circumstances of the case and in law in proposing to initiate penalty proceedings under section 270A of the Act. 6. The learned AO grossly erred on facts and in law in charging interest under section 234A, 2348 & 234C of the Act. ITA No.2804/PUN/2024 [A] 3 7. Without prejudice to the other grounds, the learned AO erred in law and facts in not disposing off Appellant's rectification application filed on 07th Nov, 2024 for mistakes apparent from records in the final assessment order dated 29th October 2024 Grounds Relating to Transfer Pricing Adjustment: 8. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by not accepting the economic analysis undertaken by the Appellant in accordance with the provisions of the Act read with the Income Tax Rules, 1962 (The Rules\"), and modifying the same for determination of arm's length price (\"ALP\") of the subject transaction and holding that the same are not at arm's length. 9. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by considering only those companies for which data is available for FY 2018-19, FY 2019-20 and FY 2020-21. 10. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by wrongfully adding certain functionally dissimilar companies as mentioned below to the final set of comparable companies for benchmarking the subject transaction on an ad-hoc basis, thereby resorting to cherry picking of comparable for benchmarking the subject transaction: Hotcocoa Software Private Limited Nihilent Limited Sagarsoft (India) Limited TVS Infotech Limited Entab Infotech Private Limited Digital Mesh Softech India Private Limited Maventic Innovative Solutions Pvt Ltd. Envecon Global Solutions Pvt Ltd Cybage Software Pvt Ltd. TTEC India Customer Solutions Pvt Ltd Softlink Global Pvt Ltd. ITA No.2804/PUN/2024 [A] 4 11. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by wrongfully rejecting \"Hurix Systems Private Limited from the final set of comparable companies for benchmarking the subject transaction on an ad-hoc basis. 12. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by not considering below functionally comparable companies additionally proposed by the Appellant in the course of transfer pricing assessment proceedings Kals Information Systems Private Limited Kcube Consultancy Services Private Limited Indianic Infotech Limited 13. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by inappropriately considering companies earning supernormal profit as comparable companies in respect of subject transaction. 14. Without prejudice, the learned DRP/TPO/AO passed an order under Section 92CA(3) of the Act which suffers from several computational errors in margins of the companies considered comparable by the learned TPO, for determination of arm's length margin, and consequently, erred in computing the amount of adjustment to be made in respect of the subject transaction of the Appellant. 15. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by failing to make appropriate adjustments to account for differences in working capital employed by the appellant vis-à-vis comparable companies in respect of the subject transaction. 16. The learned DRP/TPO/AO have erred, in law and on facts and circumstances of the case, by not making suitable adjustments to account for differences in the risk profile of the appellant vis-à-vis the comparable companies. 17. The learned DRP/TPO/AO grossly erred, in law and on facts and circumstances of the case, in charging interest on delayed realisation of receivables from the AEs, by: a. Delinking the inter-company receivables arising from the main international transaction ie. provision of software development services and proceeding to benchmark the same on a standalone basis without any methodical application of any most appropriate method; ITA No.2804/PUN/2024 [A] 5 b. Failing to consider that adjustment cannot be made on hypothetical/ notional income, c. Re-characterising outstanding receivables as unsecured loan advanced to AEs: d. Determining ALP without giving due consideration to the price charged under uncontrolled (third-party) scenario i.e. no interest is recoverable from AEs since no interest is charged/recovered on delayed recoveries from Non-AE's also; and e. In not appreciating the submissions of the appellant that they are fully funded by equity (i.e. Debt free company) and the receivables do not bear working capital risk, which may require charging of notional interest. 18. Without prejudice to the above, the learned DRP/TPO/AO grossly erred, in law and on facts and circumstances of the case, in applying the rate of interest on the gross outstanding receivables instead of net outstanding receivables i.e. after setting off interest on Trade Payables for determination of ALP The Appellant submits that the above grounds of appeal are mutually exclusive of and without prejudice to each another. The Appellant craves leave to add to, withdraw or modify any of the grounds of objections at the time of hearing. Submission of ld.AR : 2. Ld.AR for the Assessee filed paper book containing 189 pages along with case law paper book. Ld.AR invited our attention to Ground No.3. Ld.AR submitted that the Transfer Pricing Officer has passed the order u/s.92CA(3) of the Act, on 29.10.2013 in the name of Aricent Technologies (Holdings) Limited. Ld.AR submitted that Aricent Technologies (Holdings) Limited merged with Capgemini Technology Services India Limited with an appointed date of 1st ITA No.2804/PUN/2024 [A] 6 October, 2021. Ld.AR submitted that this fact was brought to the notice of the TPO vide letter dated 30.06.2023 which is at page no.1 of the paper book. Ld.AR further submitted that in response to the show cause notice issued by TPO, Assessee filed a reply dated 26.10.2023, wherein Assessee again clarified regarding the merger. Ld.AR invited our attention to page 2 to 157 of the paper book. Ld.AR therefore, pleaded that the order passed by TPO is bad in law. Ld.AR invited our attention to the order passed by the ITAT in assessee’s own case for A.Y.2020-21 wherein, identical issue has been decided by the ITAT in assessee’s own case. 2.1 Written submission filed by the Assessee is as under : “1] In this case, the assessee has raised Ground No. 3 which reads as under \"The appellant company submits that the order passed by the learned TΡΟ 92CA(3) dated 23. 10. 2023 is bad in law since the same has been passed in the name of Aricent Technologies (Holdings) Ltd. which has been amalgamated into Capgemini Technology Services India Ltd. and accordingly, as the said order has been passed in the name of an nonexistent entity, the order passed by the learned TPO and the consequential final asst order be declared null and void\" 2] The assessee submits that in the present case, the learned TPO has passed the order in the name of Aricent Technologies (Holdings) Ltd. The order of the TPO is dated 29.10.2023. 3] It is submitted that Aricent Technologies (Holdings) Ltd got amalgamated with Capgemini Technology Services India Ltd. by way of order passed by NCLT, Mumbai dated 23.12.2022 w.e.f. 01.10.2021 ITA No.2804/PUN/2024 [A] 7 4] It is submitted that the assessee had informed regarding the merger of Aricent Technologies (Holdings) Ltd. with Capgemini Technology Services India Ltd. to the learned A.O. vide letter 30.06.2023 The copy of the said letter is placed on page 1 of the Paper Book. Similarly, the said fact was also informed to the Assessing Officer vide letter dated 27.06.2023 which is given on page 158 of the Paper Book 5] It is also to be noted that during the course of proceeding before the learned TPO, the assessee had filed a letter dated 26.10.2023 in reply to the show cause notice wherein in the reference it is clearly mentioned Capgemini Technology Services India Ltd. (a successor in interest of erstwhile Aricent Technologies (Holdings) Ltd. Copy of the said letter is on page 2 of the paper book. 6] The assessee would further like to clarify that Aricent Technologies Private Ltd. had amalgamated with Aricent Technologies (Holdings) Ltd. wet 01.04 2020 and thereafter, Aricent Technologies (Holdings) Ltd. had amalgamated with Capgemini Technology Services India Ltd. vide NCLT order dated 23 12.2022 wc.f01.10.2021 9] The assessee submits that the learned TPO was aware of the fact that Aricent Technologies (Holdings) Ltd. had merged with Capgemini Technology Services India Ltd. However, in spite of the said fact being known to him, still the Id. TPO has passed the order in the namPre of Aricent Technologies (Holdings) Ltd. Accordingly, it is submitted that the order of the TPO dated 29.10.2023 is invalid in law since it has been passed in the name of non-existing company. 10] In this context, reliance is placed on the decision of Hon'ble ITAT, Pune in the case of Capgemini Technology Services India Ltd for [Erstwhile Aricent Technologies Private Limited] for AY. 2020-21 wherein also the learned TPO had passed the order in the name of non- existing company [Erstwhile Aricent Technologies Private Limited which was amalgamated with Aricent Technologies (Holdings) Ltd wef 01.04.2020 and thereafter, Aricent Technologies (Holdings) Ltd had amalgamated with Capgemini Technology Services India Ltd. vide NCLT order dated 23.12.2022 wef 01.10.2021 Hon'ble ITAT has held that since the TPO has passed the order in the name of non-existing company the said order of the TPO is a nullity and the upward adjustment proposed by the TPO cannot be sustained. The relevant observations are as under 22. We find some force in the arguments of the Ld. Counsel for the assessee that the TPO is not given any concession under the Act to pass any order as per his choice and once he fails to do so, it is a nullity. The provisions of section 29288 of the Act in our ITA No.2804/PUN/2024 [A] 8 opinion cannot come to the rescue of the TPO this being a jurisdictional issue Since in the instant case, despite number of letters addressed by the assessee to the TPO to drop the proceedings on the ground that the same are being proposed on a non-existing company, the TPO passed the order in the name of a non-existent company, therefore, respectfully following the decision of the Ahmedabad Bench of the Tribunal in the case of M/s. Aliscripts (India) LLP (As a successor in interest of Allcripts India Pvt. Ltd.) (supra), we hold that such order of the TPO passed in the name of a non-existing company is a nullity. Once the order of the TPO is held to be a nullity, the upward adjustment proposed by the TPO cannot be sustained. Therefore, we direct the Assessing Officer to delete the transfer pricing adjustment proposed by the TPO. The additional ground raised by the assessee is accordingly allowed.” Submission of ld.DR : 3. Ld.DR for the Revenue relied on the order of the Dispute Resolution Panel(DRP). However, ld.DR accepted that in assessee’s own case, for earlier year, ITAT Pune has decided against the Revenue. Findings & Analysis : 4. We have heard both the parties and perused the records. We will decided the Ground No.3 first. 4.1 The question before us is, a legal question. In this case, the Transfer Pricing Officer(TPO) has passed an order u/s.92CA(3) of the Act, for A.Y.2021-22 on 29.10.2023 in the name of Aricent Technologies (Holdings) Limited. Ld.AR invited our attention to the ITA No.2804/PUN/2024 [A] 9 fact that Aricent Technologies (Holdings) Limited has already merged with Capgemini Technologies Service India Limited with an appointed date of 01.10.2021, as per the approval granted by National Company Law Tribunal(NCL). We have perused the page no.1 of the paper book which is a letter written on the letter head of Capgemini on 30.06.2023 informing the Deputy Commissioner/Assistant Commissioner of Income Tax(Transfer Pricing) regarding the merger of Aricent Technologies (Holdings) Limited with Capgemini Technology Services India Limited. The said letter dated 30.06.2023 bears the Acknowledgment Stamp of the Office of Deputy Commissioner of Income Tax(Transfer Pricing)- 1(1)(1), New Delhi dated 30.06.2023. 5. We have perused the page no.2 of the paper book which is a letter written by Capgemini Technology Services India Limited on 26.10.2023 to the Deputy Commissioner of Income Tax(TPO)- 1(1)(1), New Delhi with reference to the show cause notice issued u/s.92CA for A.Y.2021-22. The said letter is scanned and reproduced here as under : ITA No.2804/PUN/2024 [A] 10 5.1 Thus, it is a fact that Assessee had informed the Transfer Pricing Officer regarding the merger well in advance of passing the order. The reply filed to the show cause notice was also filed by Capgemini Technology Services India Limited as a successor to Aricent Technologies (Holdings) Limited. Inspite of that the Transfer Pricing Officer passed an order u/s.92CA(3) on 29.10.2023 in the name of Aricent Technologies (Holdings) Limited. 5.2 The issue is already settled in favour of assessee. ITA No.2804/PUN/2024 [A] 11 5.3 ITAT Pune in assessee’s own case for A.Y.2020-21 in ITA No.1947/PUN/2024 has held as under : “15. We have heard the rival arguments made by both the sides, perused the orders of the 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 assessee in the instant case has filed the return in the name of Aricent Technologies Pvt. Ltd. The only question that has to be decided in the instant appeal is as to whether the order passed by the TPO in the name of a non-existing company is a valid one or not. We find the TPO in the instant case has passed the order on 24.07.2023.We find from page 3 of the paper book that the assessee vide its letter dated 11.04.2022 addressed to the TPO has mentioned as under: “B. Notice issued in the name of non-existing company–Invalid In this regard, it is respectfully submitted that since the appointed date of merger of ATPL and ATHL, as laid down in the approved scheme is 1 April 2020, ATPL has legally ceased to exist from the said date. 16. Relying on various decisions it was submitted that the reference made by the Assessing Officer and issuance of captioned notice thereof in the name and against the PAN of ATPL (a non-existent entity) is bad / invalid in law and viod-ab-initio. 17. e find from page 26 of the paper book that the TPO again issued notice in the name of Aricent Technologies Pvt. Ltd. on 26.08.2022 to which the assessee vide its reply dated 10.01.2023 has again requested the TPO to drop the proceedings on the ground that the same have been initiated in the name of PAN of a non-existing company. The relevant reply of the assessee reads as under: “We request your office to drop the captioned proceedings as the same have been initiated in the name/ PAN of a non-existing company as elaborated in our earlier submissions. Strictly without prejudice to above, for the purpose of making compliance (under protest) with the captioned notice, the assessee hereby, as successor of ATPL, submits the following documents further to our submission dated 11 April 2022.” 18. We find again the TPO vide notice dated 27.02.2023 issued to Aricent Technologies Pvt. Ltd. asking for certain details to which the ITA No.2804/PUN/2024 [A] 12 assessee vide reply dated 15.03.2023 again requested the Assessing Officer to drop the proceedings on the ground that the same have been initiated in the name / PAN of non-existing company. The relevant reply of the assessee at page 33 of the paper book reads as under: “We request your office to drop the captioned proceedings as the same have been initiated in the name/ PAN of a non-existing company as elaborated in our earlier submissions. Strictly without prejudice to above, for the purpose of making compliance (under protest) with the captioned notice, the assessee hereby, as successor of ATPL, submits the following documents…” 19. We find again the assessee vide letter dated 06.07.2023 addressed to the TPO requested to drop the proceedings on the ground that the same have been initiated in the name / PAN of non-existing company, the details of which are asunder: “We request your office to drop the captioned proceedings as the same have been initiated in the name/ PAN of a non-existing company as elaborated in our earlier submissions. Strictly without prejudice to above, for the purpose of making compliance (under protest) with the captioned notice, the assessee hereby, as successor of ATPL submits the following for your favourable consideration:….” 20. We find despite all these letters to the TPO, he passed the order in the name of Aricent Technologies Pvt. Ltd. vide order dated 24.07.2023.Under these circumstances, we have to see as to whether the order of the TPO passed in the name of a non-existing company is a valid one and therefore such upward adjustment proposed by the TPO can be sustained. 21. We find an identical issue had come up before the Ahmedabad Bench of the Tribunal in the case of M/s. Allscripts (India) LLP (As a successor in interest of Allcripts India Pvt. Ltd.) vs. NFAC (supra) wherein the Tribunal while deciding the issue of validity of the order passed by the TPO on a non-existing company. The Tribunal after relying on the various decisions held that the order passed on a non-existing company is a nullity. The relevant observations of the Tribunal from para 4 onwards read as under: “4. At the outset, the Ld. Counsel for the assessee challenged the validity of order passed by DRP on the ground that the TPO had passed order on a non-existent entity. The Ld. Counsel for the assessee submitted that All scripts India Private Limited (AIPL) was a Private Limited company incorporated in 1988. During Financial Year 2016-17 relevant to assessment year 2017-18, AIPL was ITA No.2804/PUN/2024 [A] 13 converted into Limited Liability Partnership (LLP) on 21 March 2017. The assessee had brought this fact to the notice of the Ld. Assessing Officer (ACIT Circle-1(1)(1), Vadodara) vide letter dated 12 August 2019 in response to notice issued u/s142(1) of the Act. Further to the above, again in submission filed by the assessee before the DCIT Transfer Pricing-1, Vadodara, the assessee intimated the fact that AIPL had been converted into a LLP. However, despite the aforesaid intimations to the Ld. Assessing Officer and the TPO, the Transfer Pricing Order was passed u/s 92CA(3) of the Act by the TPO in the name of AIPL- which was a nonexistent entity. Further, the assessee filed submission dated 31 March 2021 before the NEAC, Delhi i.e. the Assessing Officer intimating the fact of conversion of AIPL into LLP. However, the Ld. Assessing Officer passed draft assessment order in the name of AIPL, which is a non-existent entity. The Ld. Counsel for the assessee placed reliance on several judicial in support of the contention that once the order passed by TPO and draft assessment order passed by the Ld. Assessing Officer have been passed in the name of a non- existent entity, then the subsequent orders passed by DRP and final assessment order are also bad in law. Accordingly, the issue may be adjudicated in favour of the assessee on this ground of jurisdiction alone. 4.1 In response, the Ld.DR submitted that the DRP order and the final assessment order, against which the present appeal has been filed have been passed in the name of the correct entity i.e. LLP and therefore the final assessment order, against which the present appeal has been filed has been passed in the name of the correct entity and hence the order is not bad in law. 5. We have heard the rival contentions and perused the material on record. In the case of FedEx Express Transportation v. DCIT 108 taxmann.com 542 (Mumbai - Trib.), the ITAT held that where draft assessment order under section 144C was passed in name of amalgamating company, which was an on-existent entity in eyes of law on date of passing of such order, it became an illegal order and, thus, entire assessment proceedings based on such an invalid draft assessment order were void ab initio and deserved to be quashed. In the case of Siemens Ltd. v. DCIT 147 taxmann.com 118 (Mumbai - Trib.), the ITAT held that where draft assessment order under section 144C was passed in name of amalgamating company, which was a non-existent entity on date of passing of such order, it became an illegal order and thus, entire assessment proceedings based on such an invalid draft assessment order were void ab initio and deserved to be quashed. In the case of BOEING India (P.) Ltd. v. ACIT 121 taxmann.com 276 (Delhi - Trib.), the ITAT held that where draft ITA No.2804/PUN/2024 [A] 14 assessment order under section 144C was passed in name of amalgamated company which was non-existent company, said order was void ab initio. In the case of PCIT v. Maruti Suzuki India Ltd107taxmann.com 375 (SC), the Hon'ble Supreme Court held that where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. In the case of Dimension Data Asia Pacific PTE Ltd. v. DCIT 96 taxmann.com 182 (Bombay), the Hon'ble High Court held that where in case of foreign assessee, Assessing Officer passed final assessment order under section 144C(13), read with section 143(3) without passing a draft assessment order under section 144C(1), said order being violative of provisions of section 144C(1), deserved to be set aside. In the case of Vedanta Ltd. v. ACIT 126 taxmann.com 283 (Delhi - Trib.), the ITAT held that Draft/final assessment order framed in name of non-existent entity is void ab initio and such order is not curable defect under section 292(b). 6. Now in the instant facts, we observe that the assessee had filed a formal intimation before the DCIT, Transfer Pricing on 11 September 2019 intimating that AIPL has been converted into LLP w.e.f. 21 March 2017 (copy of the same has been placed on record for our perusal). Further, the assessee had also filed letter dated 12 August 2019 before the ACIT, Circle 1(1)(1), Vadodara intimating him about the conversion of AIPL into LLP (copy of the letter has been placed on record for our perusal). Therefore, we observe that the fact of conversion of AIPL into LLP was intimated to both the Ld. Assessing Officer and the TPO much before passing of their respective orders, yet both the TPO and the Ld. Assessing Officer passed the Transfer Pricing Order and the draft assessment order in the name of a nonexistent entity. In our view, the view of the Courts and Tribunals on this issue is unanimous that once the draft assessment order and Transfer pricing order itself are bad in law, having been passed in the name of a non-existententity, then the final assessment order based on the above orders is void ab initio as well. In view of the above settled position of law, we are of the view that the final assessment order sought to be appeal against is void and hence liable to be set aside. 6. In the result, Ground Number 2 of the assessee’s appeal challenging the validity of the order passed in the name of the non- existent entity is allowed.” 22. We find some force in the arguments of the Ld.Counsel for the assessee that the TPO is not given any concession under the Act to pass any order as per his choice and once he fails to do so, it is a nullity. The ITA No.2804/PUN/2024 [A] 15 provisions of section 292BB of the Act in our opinion cannot come to the rescue of the TPO this being a jurisdictional issue. Since in the instant case, despite number of letters addressed by the assessee to the TPO to drop the proceedings on the ground that the same are being proposed on a non-existing company, the TPO passed the order in the name of a non-existent company, therefore, respectfully following the decision of the Ahmedabad Bench of the Tribunal in the case of M/s. Allscripts (India) LLP (As a successor in interest of Allcripts India Pvt. Ltd.) vs. NFAC(supra)(supra), we hold that such order of the TPO passed in the name of a non-existing company is a nullity. Once the order of the TPO is held to be a nullity, the upward adjustment proposed by the TPO cannot be sustained. Therefore, we direct the Assessing Officer to delete the transfer pricing adjustment proposed by the TPO. The additional ground raised by the assessee is accordingly allowed. 23. Since the assessee succeeds on this legal ground, therefore, the other grounds being academic in nature are not being adjudicated. 24. In the result, the appeal filed by the assessee is allowed.” 5.4 Thus, the facts of the present case and the facts of the ITA No.1947/PUN/2024 are exactly same. Hence, respectfully following the decision of ITAT Pune in Capgemini Technology Services India Limited[as successor of Aricent Technologies (Holdings) Limited] vs. ACIT-1(1), Pune, we hold that the order passed by the Transfer Pricing Officer against the non-existing company is a nullity. Once the order passed by the Transfer Pricing Officer is held to be a nullity, the adjustment proposed cannot be sustained. Hence, we direct the Assessing Officer to delete the Transfer Pricing Adjustment proposed by the TPO. Accordingly, Ground No.3 raised by the assessee is allowed. ITA No.2804/PUN/2024 [A] 16 6. Since we have adjudicated the legal ground in favour of assessee, the Ground No.2 to 18 becomes academic in nature and accordingly, dismissed. 7. Ground No.1 : This Ground is regarding the validity of the final assessment order qua time limit. We do not intend to adjudicate this ground as we have already adjudicated Ground No.3 in favour of assessee. Accordingly, Ground No.1 is left open. 8. In the result, appeal of the assessee is partly allowed. Order pronounced in the open Court on 27 June, 2025. Sd/- Sd/- (ASTHA CHANDRA) (Dr.DIPAK P.RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 27 June, 2025/ SGR आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “सी” बᱶच, पुणे / DR, ITAT, “C” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune. "