TaxTMI 
TaxTMI 
2024 (7) TMI 1436
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....r the petitioner that Pharmazell Vizag Pvt. Ltd. which was in existence during the year 2017-18 stood amalgamated with Pharmazell (India) Pvt. Ltd. with effect from 01.07.2018 vide order dated 21.02.2020 of the NCLT, Chennai. The above fact was brought to the notice of the respondent authority by the petitioner vide email dated 22.09.2020 and it was requested to address all future correspondences involving assessment proceedings, notice of the assessee in the name of Pharmazell (India) Pvt. Ltd. The relevant portion of the Email is extracted here under : "We on behalf of and under instructions from our client - Pharmazell (Vizag) Private Limited (the Assessee) wish to draw your goodself's attention to the order passed by the National company Law Tribunal ('NCLT) Chennai Bench sanctioning the scheme of amalgamation of the Assessee with and into PharmaZell (India) Private Limited [collectively known as "PharmaZell entities'] The NCLT had sanctioned the scheme of amalgamation of the PharmaZell entities on 21 February 2020 and the same was pending for approval from various regulatory authorities including the SEZ authonties ROC authorities and the DOP auth....
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.... stands rejected by the Division Bench of the Delhi High Court in the case of Spice Entertainment Ltd. vs. Commissioner of Income Tax, reported in 247 CTR 500 which has been affirmed by the Supreme Court in the case of Principal Commissioner of Income Tax vs. Maruti Suzuki India Ltd., reported in 416 ITR 613, the relevant portion is extracted hereunder : "20. In Spice Entertainment, (supra) a Division Bench of the Delhi High Court dealt with the question as to whether an assessment in the name of a company which has been amalgamated and has been dissolved is null and void or, whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The High Court held that upon a notice under Section 143 (2) being addressed, the amalgamated company had brought the fact of the amalgamation to the notice of the assessing officer. Despite this, the assessing officer did not substitute the name of the amalgamated company and proceeded to make an assessment in the name of a non-existent company which renders it void. This, in the view of the High Court, was not merely a procedural defect. Moreover, the participation by the amalgamated co....
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...." 7. Thereafter while dealing with the contention that a contrary view has been taken by the Delhi High Court in Sky Light Hospitality LLT which is affirmed by a 2 Judge bench of the Apex Court, it was found that it does not in any manner dilute or water down the law laid down in Spice Entertainment and it was clarified that the law laid down in Spice Entertainment governs the field as would be evident from the following portions of the judgment : "27. The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP (supra) which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon'ble Mr Justice A K Sikri and Hon'ble Mr Justice Ashok Bhushan 32 Sky Light Hospitality LLP (supra). In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of this Court: "In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Tax Act. The special leave petition is....
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...., the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused." 29. From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP (supra) against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 2928. The decision in Skylight Hospitality LLP (supra) has been distinguished by the Delhi, Gujarat and Madras High Courts in: (1) Rajender Kumar Sehgal (supra); (ii) Chandreshbhai Jayantibhai Patel; and (supro) (iii) Alamelu Veerappan (supra). 30. There is no conflict between the decisions of this Court in Spice Enfotainment (supra) and in Skylight Hospitality LLP (supra)" ..... 33. In the present ca....
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....iew, that the impugned order of the High Court cannot be sustained; it is set aside." 8.1. Importantly, the decision in Maruti Suzuki which was relied upon was distinguished in Mahagun Realtors (P) Ltd., primarily on the premise that in the case of Maruti Suzuki the assesse therein had duly informed the authorities about the merger of the company and yet the assessment order was passed in the name of the amalgamated / non existing company. Whereas, in the case of Mahagun Realtors (P) Ltd., the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company in the case of Mahagun Realtors (P) Ltd. It was thus held the decision in Maruti Suzuki was inapplicable to the facts of the case. The relevant portion of the order of the Supreme Court in Mahagun Realtors (P) Ltd., is extracted below for better appreciation of the above position : "7. The Revenue, represented by the Additional Solicitor General, Mr. N. Venkataraman, urged that the names of both the amalgamating and amalgamated companies were mentioned in the assessment order. According to h....
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.... from MRPL corresponded with the Department in the name of MRPL On May 28, 2010, the assessee filed to of cores on the name of MRPL, and in the "business reorganization column of the form mentioned not applicable amalgamation section. Though the respondent contends that they had intimated the authorities by letter dated July 22, 2010, it was for the assessment year 2007 -08 and not for the assessment year 2006-07 For the assessment years 2007-08 to 2008-09, separate proceedings under section 153A were initiated against MIPL and the proceedings against MRPL for these two assessment years were quashed by the Additional Commissioner of Income-tax by order dated November 30, 2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated August 11, 2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies. 35. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the Department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the present case, the participation in proceedings was by MRPL which he....
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....ance with the decision in Marshall and Sons (supra), which had held that*: "an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee company." 8.2. The above extracts would show as stated supra that two facts which weighed with the Supreme Court in case of Mahagun Realtors (P) Ltd., was that the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company. It was under those circumstances it was held by the Supreme Court in Mahagun Realtors (P)Ltd., that the impugned order of the High Court holding that the assessments in that case was not a nullity. However, as found supra in the present case the petitioner had on atleast 5 occasions intimated the assessing authority as to the factum of amalgamation and requested that the assessment be made in the name of the resultant / amalgamated company and thus the impugned order in the name of the amalgamated / non existent company is non-est in terms of the decision of the Supreme Court in Maruti Suzuki....