TaxTMI 
TaxTMI 
2021 (2) TMI 1058
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....algamation was approved by the High Court of Andhra Pradesh vide order dated 21.02.2008 and by the High Court of Karnataka vide order dated 10.01.2008 with effect from 01.04.2007. The facts of the case further reveal in spite of merger of the assessee i.e., M/s. Quantech Global Services Ltd. (QGSL) with M/s. Wipro Ltd. Notice under Section 143(2) was issued on 19.09.2008 upon the assessee. Since there were international transactions carried out by the QGSL, a reference was made to Transfer Pricing Officer (TPO) vide letter dated 30.11.2009 and during the course of proceeding before the TPO, assessee vide its letter dated 09.06.2010 categorically stated that its registered office was at Hyderabad and it stood merged with Wipro Ltd., pursuant to the scheme of amalgamation approved by the High Court of Andhra Pradesh vide order dated 21.02.2008 and scheme of amalgamation approved by the High Court of Karnataka vide order dated 10.01.2008. A request was also made to the Commissioner to transfer the files to Bangalore as the company Wipro Ltd., is assessed in Circle 2(1), Bangalore. The aforesaid facts were not taken into account by the TPO while passing an order on 29.10.2010 in the na....
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....company name has been shown in assessment order, TPO order, DRP order and ITAT order and along with assesseee-company and representative of the merged company contested the case on merits before all the authorities?" 5. Learned counsel for the parties were heard at length and the undisputed facts reveal that for the assessment year 2006-2007 the case of the respondent company was selected for scrutiny assessment under Section 143(3) read with 92CA and 144C of the IT Act. The undisputed facts also reveal that the respondent company pursuant to the scheme of amalgamation stood merged with the Wipro Limited, the Scheme of amalgamation was approved by the High Court of Andhra Pradesh vide order dated 21.02.2008 and by the High Court of Karnataka vide order dated 10.01.2008 with effect from 01.04.2007 and in spite of merger of the assessee i.e., M/s. Quantech Global Services Ltd. (QGSL) with M/s. Wipro Ltd., notice under Section 143(2) was issued on 19.09.2008 upon the assessee. Undisputedly, the international transactions carried out by the QGSL, a reference was made to Transfer Pricing Officer (TPO) vide letter dated 30.11.2009 and during the course of proceeding before the TP....
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....y stood dissolved on 29th October, 1962 and it ceased to be in existence thereafter. Though the scheme provided that the transferee Company the Saraswati Industrial Syndicate Ltd. undertook to meet any liability of the Indian Sugar Company which that Company incurred or it could incur, any liability, before the dissolution or not thereafter. Generally, where only one Company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or re-organisation or scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending Company become substantially the share holders in the Company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other C....
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....lant would be of no effect as there is no estoppel against law. 12. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Section 292B of the Act reads as under:- "292B. No return of income assessment, notice, summons or other proceedings furnished or made or issue or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reasons of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act. 13. The Punjab & Haryana High Court stated the effect of this provision in CIT Vs. Norton Motors, 275 ITR 595 in the following manner:- "A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other p....
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.... and purpose of this Act. Thus viewed, it is not possible for us to accept the contention advanced by the learned Counsel for the appellant on the basis of Section 292B of the 1961 Act. The return under reference, which had been taken into consideration by the Revenue, was an absolutely invalid return as it had a glaring inherent defect which could not be cured in spite of the deeming effect of Section 292Bof the 1961 Act "15. Likewise, in the case of Sri Nath Suresh Chand Ram Naresh Vs. CIT (2006) 280 ITR 396, the Allahabad High Court held that the issue of notice under Section 148 of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent proceedings were null and....
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....ssued only in its name. the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, participation in the proceedings by the appellant in the circumstance cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 40. We find no reason to take a different view. There is a value which the Court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to o....
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.... the Amalgamating Company as the Assessee, mentioned below it the name of the Amalgamated Company. Illustratively the cases are: (i) CIT v Micra India (P) Ltd., (2015) 231 Taxman 809/57 taxmann.com 163(Del); (ii) CIT v. Micron Steels (P) Ltd., (2015) 372 ITR 386/233 Taxman 120/59 taxmann.com 470(Del) (iii) CIT v. Dimension Apparels (P) Ltd. (2015) 370 ITR 288/(2014) 52 taxmann.com 356 (Del) (iv) BDR Builders & Developers (P) Ltd. V. Asstt. CIT (Decision dated 26th July 2017 passed by this Court in W.P (C) No.2712/2016) 13. The question whether, for the purposes of Section 170(2) of the Act, the defect of passing the assessment order in the name of an non-existent entity is a mere irregularity was answered by this court in Dimension Apparels (P) Ltd. (supra) where in paras 6 and 7 it was held as under: '6. Sections 170(1) and 170(2) of the Act do not assist the revenue in their case. The revenue does not contest that in a case of amalgamation, the predecessor (being a dissolved company) "cannot be found". Consequently, section 170(2) applies. This provision clarifies that where the predecessor cannot be found, "the assessment of the income of the previous year in which....