TaxTMI 
TaxTMI 
2024 (1) TMI 360
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.....12.2016 by raising the following grounds: "That assessment order be quashed since the company was already merged w.e.f. 01.04.2015 and therefore the order passed in the name of the nonexistent entity is invalid, void ab-initio." 4. The Ld. Counsel for the assessee submitted that the issue raised by the assessee is purely a legal issue emanating from the records available in the record file and goes to the root of the matter. The Ld. A.R argued that no further verification of the facts is required to be done in connection with the additional ground raised by the assessee and accordingly prayed that grounds raised by the assessee which goes to the root of the matter may kindly be admitted for adjudication. In defense of his arguments the ld. Counsel relied on the two following decisions: i) Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. Vs CIT in 187 ITR 688 (SC) ii) National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 (SC). 5. The Ld. D.R on the other hand strongly opposed the filing of additional ground by the assessee by submitting that the issue has not been raised before the authorities below and is being raised for the first time before this tr....
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....s of decisions: i) Principal Commissioner of Income Tax, New Delhi v.Maruti Suzuki India Ltd [2019] 107 taxmann.com 375 (SC) ii) Marshall Sons & Co. (India) Ltd.v. Income-tax Officer [1997] 223 ITR 809 (SC) iii) Spice Enfotainment vs. Commissioner of Service Tax in ITA 475/2011 dated 2.8.2011(Del) The Ld. A.R therefore prayed that the assessment framed may kindly be quashed. 8. The Ld. D.R on the other hand strongly opposed the arguments presented by the ld AR by submitting that the assessee has informed vide letter dated 28.11.2016 and it appears that the assessee has not mentioned the assessment procedure in its letter and also that the assessee has not submitted the copy of the order of Hon'ble Calcutta High Court. The Ld. D.R stated that the certified copy of the order was signed on 6.1.2017 and the same was received by the assessee on the same date and thus the copy of the said order was not available before the AO at the time of hearing of the assessment and thus assessment was rightly framed by the AO in the name of Solvent Real Estate Pvt. Ltd. The Ld. D.R also submitted that as per the amalgamation order effective date means the date on which the certified copy of ....
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....e of amalgamation, the transferee has assumed the liabilities of the transferor company, including tax liabilities. (iii) The consequence of the scheme of amalgamation approved under section 394 of the Companies Act, 1956 is that the amalgamating company ceased to exist. (iv) Upon the amalgamating company ceasing to exist, it cannot be regarded as a person under section 2(31) against whom assessment proceedings can be initiated or an order of assessment passed; (v) A notice under section 143 (2) was issued on 26-9-2013 to the amalgamating company, SPIL, which was followed by a notice to it under section 142(1); (vi) Prior to the date on which the jurisdictional notice under section 143 (2) was issued, the scheme of amalgamation had been approved on 29-1-2013 by the High Court of Delhi under the Companies Act, 1956 with effect from 1-4-2012; (vii) The Assessing Officer assumed jurisdiction to make an assessment in pursuance of the notice under section 143 (2). The notice was issued in the name of the amalgamating company in spite of the fact that on 2-4- 2013, the amalgamated company MSIL had addressed a communication to the Assessing Officer intimating the fact of amalgam....
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....the appeal. The appeal is accordingly dismissed.[Para 35] 9.1. Similarly the Hon'ble Apex Court has also decided a similar issue in favour of the assessee in the case of Marshall Sons & Co. (supra) by holding that the framing of assessment in the name of non-existing entity is invalid. The operative part is reproduced as under: The effect of scheme of sections 391, 394 & 394A of the Companies Act (so far as relevant for purposes of the present case) can be summarised as under : (a) Where an amalgamation of two or more companies is proposed, an application has to be made to the Court for the purpose. Thereupon, the Court may call the meeting of members of the companies concerned. The order of the Court shall be in Form No. 35 prescribed by the Companies (Court) Rules. (b) Such notice of the meeting has to be sent individually to all the members. (The notice and the explanatory statement under section 393 are settled by the officer of the Court.) (c) Apart from individual notices, the notice of the meeting has also to be published in such newspapers as may be directed by the Court. (d) Only when a majority of the members representing three-fourths of the value of the membe....
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....ny with effect from the transferred date and that the subsidiary company shall be amalgamated with the holding company with effect from the said date. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation shall take place. The scheme concerned herein did so provide, viz., 1-1-1982. It is true that while sanctioning the scheme, it is open to the Court to modify the said date and prescribe such date of amalgamation as it thinks appropriate in the facts and circumstances of the case. If the Court so specifies a date, there is little doubt that such date would be the date of amalgamation. But where the Court does not prescribe any specific date but merely sanctions the scheme presented to it, as had happened in the instant case, it should follow that the date of amalgamation is the date specified in the scheme as 'the transfer date'. It cannot be otherwise. It must be remembered that before applying to the Court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation. The proceedings before the Court may take some time; indeed, they are bound to take some time because several steps ....