2023 (5) TMI 547

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.... alia on the ground that the same was issued in the name of a non-existing entity. 2. Briefly stated the material facts are as under : A notice under Section 148 of the Act came to be issued by the assessing officer to M/s Morgan Construction Company (I) Private Limited (M/s. Morgan Construction), seeking to reopen the assessment for the assessment year 2008-09 on the ground that the assessing officer had 'reason to believe' that the income chargeable to the tax for the said assessment year had escaped assessment within the meaning of Section 147 of the Act. 3. In response to the said notice, a communication dated 10th April 2015 was addressed to the Assessing Officer by the Petitioner (Siemens Limited) objecting to the said ....

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....de communication dated 10th April 2015 had not sought the reasons for reopening and therefore had tacitly accepted the notice under section 148 of the Act, whereafter the assessee would have no locus standi to state that the notice was invalid, especially, in view of the provisions of Section 292B of the Act. 5. Mr. Joshi, learned counsel for the Petitioner urged that the entire approach adopted by the Assessing Officer was misplaced and erroneous in law after having accepted the fact that the company, i.e., M/s. Morgan Construction had amalgamated with the Petitioner. It is stated that the factum of amalgamation of the company had been brought to the notice of the Assessing Officer as early as on 17th September 2012 and, therefore, ther....

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.... it amounts to reconstruction or reorganisation 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 shareholders of each blending company become substantially the shareholders 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....

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....ssioner of Income Tax, New Delhi V/s. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375 (SC)., reiterated the aforementioned principles and held as under: "33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued 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 circumstances cannot operate as an estoppel against law. This position now holds the field in v....

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....d acquired the rights and liabilities of Sky Light Hospitality Pvt. Ltd. The Court, based upon substantial evidence on record, came to a conclusion that issuance of notice in the name of the company that had ceased to exist was a mistake, inasmuch as the tax evasion report, 'the reasons to believe' recorded by the Assessing Officer as also the PAN number reflected in the documents was that of Sky Light Hospitality LLP , which would thus attract section 292 B of the Act. 12. As against that, in the present case, there is no such material brought on record which would have furnished a basis to believe that the notice was, in fact, intended to be issued in the name of Siemens Limited and not 'M/s. Morgan Construction Company (I) Private Lim....