2025 (11) TMI 656 - HC - Income Tax

Reassessment under s.148 invalid where notice issued to non-existent company that ceased before the assessment year

Erangal Comtrade and Consultancy LLP (as successor in interest of Erangal Comtrade and Consultancy Private Limited) Versus Assistant Commissioner of Income Tax, Circle 2 (1) (1), Mumbai, Joint Commissioner of Income Tax, Range 2 (1), Mumbai, National Faceless Assessment Centre, New Delhi.

HC held the reassessment invalid where a notice under s.148 was issued to a non-existent company for the relevant assessment year. The court found the ... Reopening of assessment u/s 147 - notice u/s 148 was issued against a non-existent entity - HELD THAT:- We find that from the facts of the present case, the erstwhile company ceased to exist with effect from 17th March 2016. This is an undisputed position. Yet the notice under section 148 has been issued to the erstwhile company, and that too for A.Y. 2017-18, when the said company was not in existence. The only ground on which the reassessment proceedings are sought to be initiated against the erstwhile company is that it failed to file its return of income. We fail to understand how a company, which was not in existence in A.Y. 2017-18, can file its return of income for the said assessment year. Be that as it may, we find that the issue regarding the invalidity of a notice issued to a non-existent entity is no longer res-integra and is covered by the decision of Maruti Suzuki India Ltd. [2019 (7) TMI 1449 - SUPREME COURT] - Assessee appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether a notice under section 148 of the Income Tax Act can be validly issued to an entity that ceased to exist prior to the relevant assessment year as a result of conversion into another legal form. 2. Whether an assessment order passed consequent to a section 148 notice issued to a non-existent entity can stand. 3. Whether the Assessing Officer was obliged to dispose of the objections to the reasons for reopening before passing the final assessment order (i.e., procedural regularity in reopening and final assessment). 4. Whether there was any escapement of income justifying reassessment in the facts where the income alleged to have escaped assessment was disclosed and assessed in the successor entity's return for the relevant year (issue of substantive escapement of income). 5. Consequence and practical sequencing where the litigant withdraws an appeal before the Commissioner (Appeals) in light of the High Court's quashing, and restoration mechanism if the higher court later sets aside the High Court order. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of section 148 notice issued to a non-existent entity Legal framework: Section 148 empowers issuance of notice to reopen assessment where the Assessing Officer has reason to believe income chargeable to tax has escaped assessment. Conversion of a company into an LLP under the LLP Act and LLP Rules results in the company ceasing to exist with effect from the date of registration of conversion. Precedent treatment: The Court follows binding precedent of the Supreme Court holding that notices issued in the name of an entity that has ceased to exist are invalid; consistency and certainty in tax litigation require recognising that an amalgamating/converted entity ceases to exist and proceedings must be directed at the correct legal person. Interpretation and reasoning: The facts established that the company was converted into an LLP and ceased to exist with effect from the relevant date; consequently, it could not have filed a return for the later assessment year. Issuing a section 148 notice to an entity which, by law, no longer exists is fundamentally at odds with the legal position that the entity has ceased to exist; participation in proceedings cannot estop application of that legal principle. The statutory basis for jurisdiction (notice to the person liable) is absent where the named addressee has ceased to exist. Ratio vs. Obiter: The conclusion that a section 148 notice cannot be issued to an entity which has lawfully ceased to exist is ratio, firmly grounded in statutory operation of conversion and followed precedent. Conclusions: The section 148 notice issued to the non-existent entity is invalid and is accordingly quashed. Issue 2 - Validity of assessment order passed pursuant to an invalid section 148 notice Legal framework: An assessment order flowing from a jurisdictionally defective notice is vitiated as the source notice is void for want of jurisdiction to reopen in the name of a non-existent person. Precedent treatment: The Court follows authorities treating consequential orders issued pursuant to invalid reopening notices as necessarily unsustainable. Interpretation and reasoning: Because the assessment order dated 30th March 2022 emanates from the invalid section 148 notice, it lacks valid jurisdictional foundation. There is no separable validity in the assessment order once the foundational notice is quashed. Ratio vs. Obiter: The quashing of the assessment order as consequential to the quashed notice is ratio. Conclusions: The impugned assessment order is quashed and set aside as it stems from a void section 148 notice. Issue 3 - Requirement to dispose of objections to reasons for reopening before final assessment Legal framework: Reopening procedure contemplates that objections to reasons recorded may be filed and require consideration before culminating in final assessment; procedural fairness and statutory requirements inform the obligation to consider such objections. Precedent treatment: The Court notes this ground was canvassed but deliberately does not decide it because the primary jurisdictional defect renders further analysis unnecessary. Interpretation and reasoning: Given the dispositive finding that the reopening notice itself is invalid, determination of whether objections should have been disposed of before passing the assessment becomes unnecessary to the outcome. Ratio vs. Obiter: Any discussion on procedural failure to dispose of objections is obiter in this judgment as the Court refrains from ruling on it. Conclusions: Not decided; left open as unnecessary due to quashing on jurisdictional grounds. Issue 4 - Allegation of escapement of income where income was disclosed and assessed in the successor entity's return Legal framework: Reassessment requires the Assessing Officer to have reason to believe that income chargeable to tax has escaped assessment; if income is disclosed and assessed in the relevant return, escapement is not established. Precedent treatment: The Court acknowledges the contention and records that it was argued, but declines to adjudicate it in view of the primary finding. Interpretation and reasoning: The Petitioner's successor entity had disclosed and had the relevant interest income assessed in the 143(3) order for the relevant year; accordingly, the promise of escapement as grounds for reopening is factually disputed. Nonetheless, the Court does not resolve the substantive question because the jurisdictional defect in the notice is dispositive. Ratio vs. Obiter: Any pronouncement on substantive escapement is obiter and not decided. Conclusions: Not adjudicated; left to be considered if required in future proceedings unaffected by the present quashing. Issue 5 - Practical consequences: withdrawal of appeal and restoration if order is set aside by higher court Legal framework: Parties may undertake litigation steps by way of withdrawal; appellate restoration is permissible if a higher court later sets aside the quashing order, with appeals to be decided on merits in accordance with law. Precedent treatment: The Court accepted the litigant's undertaking to withdraw the appeal before the Commissioner (Appeals) within a specified period and recorded a mechanism for restoration if the order is set aside by a higher court. Interpretation and reasoning: In the interests of finality and to prevent multiplicity of proceedings, the Court received the undertaking and provided that, if the quashing order is overturned, the withdrawn appeal shall be restored and decided on merits. This approach balances the parties' conduct with potential appellate outcomes. Ratio vs. Obiter: The recording of the undertaking and conditional restoration procedure is operative in the judgment (practical direction) and thus forms part of the Court's dispositive order rather than pure obiter. Conclusions: The petitioner's undertaking to withdraw the appeal is accepted; if the order is overturned by a higher court, the withdrawn appeal will be restored and decided on merits. Cross-references 1. Issue 1 and Issue 2 are interlinked: the invalidity of the section 148 notice (Issue 1) directly determines the invalidity of the consequential assessment order (Issue 2). 2. Issues 3 and 4 were raised but not decided because of the dispositive finding on Issues 1 and 2; those questions remain open for adjudication if necessary in future proceedings.