TaxTMI 
TaxTMI 
2024 (9) TMI 1631
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....Tax<br>HON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA ITA 116/2023, W.P.(C) 13807/2022, W.P.(C) 11498/2019, W.P.(C) 1894/2020, W.P.(C) 10882/2021, W.P.(C) 13862/2021, W.P.(C) 13883/2021, W.P.(C) 13930/2021, W.P.(C) 14005/2021, W.P.(C) 14061/2021, W.P.(C) 14062/2021, W.P.(C) 14296/2021, W.P.(C) 14306/2021, W.P.(C) 14798/2021, W.P.(C) 4035/2022, W.P.(C) 4038/2022, W.P.(C) 4103/2022, W.P.(C) 5021/2022, W.P.(C) 5022/2022, W.P.(C) 5118/2022, W.P.(C) 5134/2022, W.P.(C) 5161/2022, W.P.(C) 5165/2022, W.P.(C) 5166/2022, W.P.(C) 5171/2022, W.P.(C) 5475/2022, W.P.(C) 7151/2022, W.P.(C) 7217/2022, W.P.(C) 13991/2022, W.P.(C) 14034/2022, W.P.(C) 17290/2022, W.P.(C) 17329/2022 & CM APPL. 57045/2023 (Direction), W.P.(C) 3885/2023, W.P.(C) 4558/2023, W.P.(C) 5868/2023 & CM APPL. 23019/2023 (Interim Stay), W.P.(C) 7775/2023 & CM APPL. 30016/2023 (Stay), W.P.(C) 7487/2024 & CM APPL. 31188/2024 (Interim Stay), International Hospital Limited, Religare Enterprises Limited (As Successor-In-interest of Religare Securities Ltd), Baba Lease & Investment Pvt. Ltd., Gartner India Research And Advisory Services Private Limited, BSBK Engineers Private Limited (Resultin....
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....audhari, Advocates, Mr. Rohit Bansal, Adv. Ms. Ananya Kapoor, Adv. Mr. Deepak Chopra, Mr. Ankul Goyal and Mr. Priyam Bhatnagar, Advs. Mr. Deepak Chopra, Mr. Ankul Goyal and Mr. Priyam Bhatnagar, Advs. Mr. Ruchesh Sinha and Ms. Monalisa Maity, Advs. Mr. Manuj Sabharwal and Mr. Drona Negi, Advocates, Mr. Vikas Jain, Mr. Aviral Saxena, Ms. Shrawani, Mr. Piyush Thavi and Mr. Hardik Jayal, Advs. Ms. Shreya Jain and Adv. Mr. Gaurav Tanwar, Advs., Mr. Mukesh Sukhija, Mr. Milind Gautam, Mr. Priyeranjan Ambashtha and Ms. Archana Biala, Advs., Mr. Sumit K. Batra, Mr. Manish Khurana, Ms. Priyanka Jindal & Mr. Nikhin Alex, Advs., Mr. Salil Kapoor, Mr. Sumit Lalchandani and Ms. Ananya Kapoor, Advs., Mr. Piyush Kaushik and Mr. Tanveer Zaki, Advs. For the Respondent Through: Mr. Gaurav Gupta, SSC along with Mr. Shivendra Singh and Mr. Yojit Pareek, JSCs. Mr. Siddhartha Sinha, SSC along with Ms. Dacchita Shahi and Ms. Anjuja Pethia, JSCs, Mr. Nring Chamwibo Zeliang and Ms. Anu Priya Minz, Advs. Mr. Anurag Ojha, SSC along with Ms. Hemlata Rawat and Mr. V.K. Saksena, JSCs. Mr. Abhishek Maratha, SSC with Mr. Parth Semiwal, Mr. Apoorv Agarwal, Jr SCs, Ms. Nupur Sharma, Mr. Gaurav Singh, Ms. Muskan ....
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....NCLT] or the concerned High Court, the dates when the factum of merger may have been intimated to the respondents as well as details pertaining to orders of assessment as made or notices issued under Section 148. That chart which was presented for our consideration is appended to the judgment as "Appendix "A". 4. From the facts which have been set forth in the lead writ petition being W.P.(C) 13807/2022, we find that Religare Securities Ltd [RSL]. was a company incorporated under the Companies Act, 1956 [1956 Act] and was regularly assessed to tax under the provisions of the Act. It is also stated to be a company which was duly listed on the National Stock Exchange as well as the Bombay Stock Exchange and engaged in providing security, brokering and depository services to its retail clients. For Assessment Year [AY] 2015-16, RSL is stated to have filed its return of income on 31 March 2017. An assessment order under Section 143 (3) thereafter came to be framed on 10 December 2018. Although that assessment formed subject matter of cross appeals preferred by respective sides before the Income Tax Appellate Tribunal [Tribunal], the dispute forming part of assessee's appeal ultimate....
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....d for proceedings to be taken forward in accordance with law. 9. Acting in purported compliance of that decision, the respondents on 25 May 2022 issued a communication in the name of RSL and provided a copy of the information on the basis of which the notice of 15 April 2021 had been initially issued. It is further alleged by the writ petitioner that without granting any right of personal hearing, a final order referable to Section 148A (d) came to be passed on 28 July 2022 followed by a consequential notice under Section 148. It was the aforesaid action which ultimately led to the institution of the present writ petition. It becomes pertinent to note that it was only the Section 148A (d) order and the consequential notice under Section 148 issued pursuant to the aforesaid determination which for the first time came to be framed in the name of the resultant entity, Religare Enterprises Limited. Both the original Section 148 notice as well as the subsequent notice under Section 148A (b) were in the name of RSL. 10. It becomes pertinent to note that although Instruction No. 1/2022 dated 11 May 2022 issued by the Central Board of Direct Taxes [CBDT] also formed subject matter of....
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....ently under an approved Scheme amalgamated with Maruti Suzuki India Ltd. [MSIL], was a nullity. On facts it emerged that MSIL had duly intimated the AO of the amalgamation prior to the case being selected for scrutiny assessment. Notwithstanding that information being available, the AO appears to have framed a draft assessment order in the name of SPIL. 14. It was in the aforesaid backdrop that the Supreme Court firstly took note of an earlier decision of this Court in Spice Entertainment Ltd. vs. Commissioner of Service Tax 2011 SCC OnLine Del 3210, where it had been held that an assessment made in the name of a transferor company would be void ab initio and could not possibly be viewed as a procedural defect curable or rectifiable under Section 292B of the Act. This becomes evident from the following conclusions which came to be rendered: "11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said 'dead person'. When notice under Section 143(2) was sent, the appellant/amalgamated compan....
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....dismissed in Skylight Hospitality LLP vs. Assistant Commissioner of Income Tax (2018) 13 SCC 147 in the following terms:- "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 292-B of the Income Tax Act. The special leave petition is dismissed. Pending applications stand disposed of." 17. In Maruti Suzuki it appears to have been urged by and on behalf of the Revenue that the decision in Spice Entertainment would not hold good in light of the decision which our High Court had pronounced in Sky Light Hospitality and which had come to be affirmed by the Supreme Court. Dealing with the aforesaid contention, the Supreme Court in Maruti Suzuki observed as follows: "28. 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 [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296] which was affirmed on 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] by a two-Judge Bench of this Court consisting of Hon'ble ....
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....to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case fell within the purview of Section 292-B for the following reasons : (Skylight Hospitality case [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296], SCC OnLine Del para 18) "18. ... There was no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11-4-2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, 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. The decision in Spice Entertainment [Spice Entertainment Ltd. v. Commr. of Service Tax, 2011 SCC OnLine Del 3....
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....ospitality LLP v. CIT [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] (dated 6-4-2018)." 18. Arguments flowing on lines similar to those which were addressed before us in this batch appear to have been urged before the Supreme Court in Maruti Suzuki with it being argued that a notice in the name of a company which stood dissolved would be a curable mistake and that in any case, Section 170 of the Act would save those notices. This becomes apparent from a reading of paragraphs 32 and 33 of the report which are extracted hereinbelow: "32. Mr Zoheb Hossain, learned counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, this Court did not find any infirmity in the decision of the Delhi High Court holding that the issuance of a notice to an erstwhile private limited company which had since been dissolved was only a mistake curable under Section 292-B. A close reading of the order of this Court dated 6-4-2018 [Skylight Hospitality ....
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....person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession- (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year precedi....
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....n to the respondent for AY 2011-2012 must, in our view be adopted in respect of the present appeal which relates to AY 2012- 2013. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable." 20. As is evident from the above, Maruti Suzuki came to affirm the view which was expressed by this Court in Spice Entertainment. The Court in Spice Entertainment had identified the principal question to be whether the provisions of Section 292B could be invoked to salvage a situation where an assessment comes to be framed in the name of the transferor company. The Court was called upon to examine whether such an order of assessment would be a nullity or one which could be viewed as suffering from a procedural defect which could be validated by invoking Section 292B. Dealing with this aspect, the Court in Spice Entertainment had observed as follows:- "8. A com....
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....existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4thEdition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its entity." 9. The Court referred to its earlier judgment in General Radio and Appliances Co. Ltd. v. M.A. Khader (1986) 60 Comp Case 1013. In view of the aforesaid clinching position in law, it is difficult to digest the circuitous route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the groun....
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....- "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 proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B." 14. The issue again cropped up before the Court in CIT v. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by....
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....s 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 void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application. 16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a 'dead person'. 17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law in favour of the assessee and against the Revenue and allow these appeals." 21. A few years after Spice Entertainment, a similar question arose yet again in Sky Light Hospitality. Our Court on that occasion came to the conclusion that the mistake in that particular case was a technical error which could be attended to and saved by virtue of Section 292B of the Act. However, an....
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....es in civil law and procedure where upon amalgamation, the cause of action or the complaint does not per se cease- depending of course, upon the structure and objective of enactment. Broadly, the quest of legal systems and courts has been to locate if a successor or representative exists in relation to the particular cause or action, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall." 24. It also noticed the principles which had been spelt out with respect to a Scheme of Arrangement and its impact on a transferor company as was elaborated in Marshall Sons and Co. (India) Ltd. vs. Income Tax Officer (1997) 2 SCC 302 as would be evident from paragraph 22 of the report:- "22. The effect of amalgamation in the context of Income-tax, was again considered in another earlier decision, i.e., Marshall Sons and Co. (India) Ltd. v. ITO. There, the court held that: "14. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it ....
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....fore the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd. AIR 1919 PC 9, relied on. Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, 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. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both, of transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets ma....
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....d yet the assessment order was passed in the name of the amalgamating/non- existent company. However, in the present case, for the assessment year 2006-07, there was no intimation by the assessee regarding amalgamation of the company. The return of income for the assessment year 2006-07 first filed by the respondent on June 30, 2006 was in the name of MRPL. MRPL amalgamated with MIPL on May 11, 2007, with effect from April 1, 2006. In the present case, the proceedings against MRPL started in August 27, 2008 - when search and seizure was first conducted on the Mahagun group of companies. Notices under section 153A and section 143(2) were issued in the name MRPL and the representative from MRPL corresponded with the Department in the name of MRPL. On May 28, 2010, the assessee filed its return of income in the name of MRPL, and in the "business reorganization" column of the form mentioned "not applicable" in 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 sect....
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.... MIPL, on August 27, 2008 in the course of the admission, when a statement was recorded under section 132(4) of the Act, by Mr. Amit Jain. 5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on May 28, 2010. Before that, on two dates, i.e., July 22/27, 2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for the assessment year 2007- 08 (for which separate proceedings had been initiated under section 153A) and not for the assessment year 2006-07. 6. The return specifically suppressed - and did not disclose the amalgamation (with MIPL) - as the response to query 27(b) was 'N.A.'. 7. The return - apart from specifically being furnished in the name of MRPL, also contained its permanent account number. 8. During the assessment proceedings, there was full participation- on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under section 142). Objections to the special audit were filed in respect of portions relatable to MRPL. 9. After fully participating in the proceedings which were spec....
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....king a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the Assessing Officer in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i. e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order - and section 394 (2). Furthermore, it would be anybody's guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the Assessing Officer is, in this court's opinion in consonance with the decis....
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....imbue Mahagun Realtors were succinctly noticed in Sony Mobile Communications with the Court observing as under: - "22. As is evident upon a perusal of the aforementioned extracts from Mahagun Realtors the court distinguished the judgment rendered in Maruti Suzuki, on account of the following facts obtaining in that case : (i) There was no intimation by the assessee regarding amalgamation of the concerned company. (ii) The return of income was filed by the amalgamating company, and in the "business reorganisation" column, curiously, it had mentioned "not applicable". (iii) The intimation with regard to the fact that the amalgamation had taken place was not given for the assessment year in issue. (iv) The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated-company. (v) More crucially, while participating in proceedings before the concerned authorities, it was represented that the erstwhile company, i.e., the amalgamating company was in existence. 23. Clearly, the facts obtaining in Mahagun Realtors do not obtain in this matter. 24. As ....
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....d. It becomes relevant to note that Section 159 places the liability of a deceased assessee on its legal representatives. It thus creates a right of recourse for the Revenue to pursue and recover outstanding demands. We fail to appreciate how that provision could have any bearing on the question that stood posited. The proceedings impugned herein are not in relation to any right of recovery that may have been asserted or proposed. The challenge is to orders of assessment and initiation of reassessment made or commenced against a non-existent entity. 35. Similarly, Section 170 deals with contingencies where a person succeeds to or takes over an existing business. It thus provides that the successor would be assessed in respect of income which arises or accrues after the date of succession. The income earned prior to the date of succession is liable to be taxed in the hands of the predecessor. While the respondents sought to draw sustenance from the phrase "when the predecessor cannot be found...." as appearing in sub-section (2) thereof, we find ourselves unable to read that expression as being akin to a dissolution of a corporate entity or its merger with another. The expression....
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....uring the pendency of that appeal that the AO invoked Section 154 asserting that the assessment order had inadvertently come to be framed in the name of EHSSIL. It is the validity of this order which was questioned before the Tribunal. The Tribunal has upheld the action of the AO leading to the filing of the present appeal. 39. We find ourselves unable to be concur with the view as taken by the Tribunal for the following reasons. Undisputedly, the factum of merger was duly brought to the notice of the AO. In fact, the said authority has duly taken note of the order of the High Court and in terms of which the Scheme had come to be approved. However, inexplicably, it proceeded to frame an order in the name of EHSSIL. We note that the Return in this case was submitted by EHSSIL prior to the Scheme being sanctioned. It was perhaps in that backdrop that the notice under Section 143(2) came to be issued in its name, albeit after the Scheme had come into force. The assessment proceedings were thus ongoing at the time when the Scheme came to be sanctioned. 40. However, and admittedly, the factum of merger had been duly brought to the attention of the AO. The merger was taken into con....
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.... a decision rendered inter partes in Pr. Commissioner of Income Tax-6 vs. Nokia Solutions & Network India Pvt. Ltd (Formerly known as, Nokia Siemens Network Pvt. Ltd.) ITA 135/2018 decided on 06 February 2018, the decision in Nokia Solutions was dealing with a case of an incurable illegality. This since the directions of the Dispute Resolution Panel as well as the final order of assessment were made in the name of an entity which had ceased to exist. The case in Nokia Solutions is distinct from the facts which obtain in the present writ petitions and where the only mistake which is alluded to is the mentioning of a wrong PAN. 44. Although in the writ petition it is averred that the original Section 148 notice was never served upon the petitioner, we find that the order of 15 March 2022 speaks of various subsequent notices which had been issued and remained unanswered. In any event, the present writ petitions merely impugn the notice under Section 142 (1) with no challenge having been mounted in respect of the original notice of reassessment. These petitions would consequently merit dismissal. 45. The present order, however, would be without prejudice to such other rights and ....
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..../2021 28 March 2021 Notice under Section 148 W.P.(C) 13883/2021 28 March 2021 Notice under Section 148 W.P.(C) 13930/2021 26 March 2021 Notice under Section 148 W.P.(C) 14005/2021 26 March 2021 Notice under Section 148 W.P.(C) 14061/2021 26 March 2021 Notice under Section 148 W.P.(C) 14062/2021 26 March 2021 Notice under Section 148 W.P.(C) 14296/2021 28 March 2021 Notice under Section 148 W.P.(C) 14306/2021 26 March 2021 Notice under Section 148 W.P.(C) 14798/2021 26 March 2021 Notice under Section 148 W.P.(C) 4035/2022 26 March 2021 Notice under Section 148 W.P.(C) 4038/2022 26 March 2021 Notice under Section 148 W.P.(C) 4103/2022 26 March 2021 Notice under Section 148 W.P.(C) 4925/2022 26 March 2021 Notice under Section 148 W.P.(C) 5082/2022 26 March 2021 Notice under Section 148 W.P.(C) 5134/2022 26 March 2021 Notice under Section 148 W.P.(C) 5161/2022 27 March 2021 Notice under Section 148 W.P.(C) 5165/2022 26 March 2021 Notice under Section 148 W.P.(C) 5166/2022 26 March 2021 Notice under Section 148 W.P.(C) 5171/202....
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....nt Year Appointed date of Amalgamation as per the scheme NOC given by AO before NCLT on Date of approval of scheme by NCLT/ HC Factum of amalgamation intimated to AO/ old PAN surrendered on Revised/ Belated return filed (if any) on Details of regular assessment Date of Impugned Notice/ Order 67. WP(C) No.13807 of 2022 Religare Enterprises Ltd. [as successor in interest of Religare Securities Ltd.] vs. ACIT 2015-16 w.e.f. 01.04.2016 [@ Pg.193 /PDF 198] 28.09.2017 [@ Pg.168/ PDF 173] 08.12.2017 (w.e.f. 01.04.2016) [@ Pg.190/ PDF 195] 29.12.2017 [@Pg.169/ PDF 174] 29.03.2019 (Revised) [@ Annex I/ PDF 240 onwards] Order dated 10.12.2018 passed under section 143 (3) of the Act [@Pg. 157/PDF 162 onwards] 15.04.2021 Notice (section 148 of the Act) New regime [@ Pg.92/ PDF 97] 68. WP(C) 11498/2019 BABA LEASE & INVESTMENT PRIVATE LIMITED (Transferor company - Ladliji enterprises private limited PAN AAECR1528F) Transferee company- BABA LEASE & INVESTMENT PRIVATE LIMITED -PAN 2012-13 01.01.2014 - 21.05.2014 09.02.2015 (Through ITR of Transferor company for AY 2014-15) & 14.03.2016 (through letter) & 02.11.2016 (I....
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....he present case admittedly falls under Category I and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) and CIT vs Sony Mobile Communications Ind (P.) Ltd. : [2023] 456 ITR 753 (Del) as impugned orders have been passed by the AO/ TPO on the non-existent entity despite numerous intimations being filed by the Petitioner with AO/ TPO at various intervals intimating about the factum of merger. 71. WP(C) No.13862/2021 BSBK Engineers Pvt. Ltd. (resulting company of Vogue Leasing & Finance Company Pvt. Ltd. vs. ACIT 2017-18 w.e.f. 01.04.2016 - 02.08.2018 19.11.2018 [ANN: P-4] Page-49 Statutory notice u/s 148 issued to amalgamating entity i.e., Vogue Leasing which ceased to exist w.e.f - 02.08.2018. - 28.03.2021 Notice (section148 of the Act) Erstwhile regime 72. WP(C) No.13930 of 2021 Religare Enterprises Ltd [as successor in interest of RGAM Investment Advisers Pvt. Ltd.] vs. ACIT 2017-18 w.e.f. 01.04.2016 [@ Pg. 86] 28.09.2017 [@ Pg.64] 08.12.2017 (w.e.f. 01.04.2016) [@ Pg.83] 29.12.2017[@ Pg.128-130] 29.03.2019 (Revised) [@Annex E/Pg.131 onwards Order dated 31.03.....
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.... Erstwhile regime [@ Pg.63] Remarks: Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC) 76. WP(C) No.14062 of 2021 Religare Enterprises Ltd [as successor in interest of RGAM Capital India Ltd.] vs. ACIT 2017-18 w.e.f. 01.04.2016 [@Pg.86] 28.09.2017 [@Pg.64] 08.12.2017 (w.e.f. 01.04.2016) [@ Pg.83] 29.12.2017 [@Pg.128-130] 29.03.2019 (Revised) [@ Annex E/Pg.131 onwards] Order dated 31.03.2021 passed under section 143 (3)/144C, assessing the revised return of income [@ Annex G/ Pg.227-232] 26.03.2021 Notice (section 148 of the Act) Erstwhile regime [@ Pg.63] Remarks: Notice u/s 148 (old regime) issued in th....
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.....03.2021 despite intimation of amalgamation/surrender of old PAN/request for transfer of TDS/advance tax credit by the Petitioner (amalgamated entity). The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone (Pg. 129 of the writ petition-Annexure P-8). It is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC). The revised return has been filed by Qualcomm India Pvt. Ltd. after incorporating all the incomes/TDS/advance tax of the amalgamating entity and the same has been assessed to tax as well u/s 143 (3) proceedings (Annexure P-6). During assessment proceedings, a specific question was asked about the merger, which was duly explained and responded to. The aspect of merger was also informed in the ROI under the 'Business Organization' Column (Annexure P5). Hence, the Respondents have been well aware of the merger/amalgamation 82. WP(C) No. 4103/2022 Qualcomm India Pvt. Ltd. After merger of CSR Technology India Pvt. Ltd. vs. ACIT 2017-18 w.e.f. 01.04.2016 - 25.09.2023 &....
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....process followed in case of amalgamation matters before NCLT, in itself, incorporates such intimation. The AO vide notice dated 21.12.2020 for AY 2018-19 (on the successor) had called for the details of amalgamation and the assessee vide reply dated 19.01.2021 submitted the copy of court order regarding Amalgamation and copy of forms filled with MCA. Thereafter, the AO, vide notice dated 19.03.2021 for AY 2018-19 asked the following query "5. During the year, amalgamation has taken place. Please submit the details and explain with proper justification" in respect of which the submission was filed vide letter dated 26.03.2021 as "A wholly owned subsidiary namely Radiant Complast Private Limited was merged with the company as per court order. Copy of court order regarding Amalgamation and copy of forms filled with MCA were already been filed as Annexure -9 and 10 with our reply dated 19/01/2021.Kindly refer the same." Thereafter, the assessment order dated 22.04.2021 was framed for AY 2018-19, which specifically mentions "amalgamation" as one of the major issues examined. All the above documents were duly provided to the counsel for the Respondents vide e-mail dated 24.08.2024 sen....
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....y. This situation is unequivocally covered by the legal precedents set forth in PCIT v. Maruti Suzuki India Ltd. [2019] 416 ITR 613 (SC), which establish that any proceedings initiated in the name of a non-existent entity are void ab initio. 97. WP(C) No. 14034/2022 Siddheshwari Tradex Pvt. Ltd. (successor of Danta Enterprises Pvt. Ltd.) vs. ACIT 2014-15 w.e.f. 01.04.2018 - 18.01.2021 (w.e.f. 01.04.2018) 06.09.2019 -Intimation to AO 09.09.2019 -Intimation to PCIT Letter dtd. 23.01.2020 (sent via post on 25.01.2020) - 2nd intimation 15.02.2021 - revised Tax Audit filed 15.02.2021 - ITR filed intimating the fact of amalgamation Return was processed u/s. 143 (1) of the Act, for the relevant assessment year 19.04.2021 Notice (section 148 of the Act) Erstwhile regime Distinguishing Features: • Present case is clearly a category-I matter since original notice u/s 148 and notice u/s. 148A (b) was issued in the name of amalgamating/ non-existent company only; Although Notice u/s. 148A (b) was issued by R1, Order u/s. 148A (d) passed by R2 (different authority); No taxability in terms of section 56 (2) (viia)/ no indicati....
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....ons dated 07.06.2022 in response to intimation/ letter dated 24.05.2022 reiterating that the erstwhile entity stands merged with Aricent Technologies (Holdings) Ltd. [Refer: Annexure 'N' @ Pg. 244] (f) Even after repeatedly informing the assessing officer about the amalgamation of Aricent Technologies Pvt Ltd with Aricent Technologies (Holdings) Ltd, the assessing officer passed the order dated 29.07.2022 under section 148A(d) of the Act and issued the notice dated 29.07.2022 under section 148 in the name and PAN of Aricent Technologies Pvt Ltd. [Refer: Annexure 'C' @ Pg. 97 and Annexure 'D' @ Pg. 103] (g) Shockingly, in the impugned order dated 29.07.2022 passed under section 148A(d) of the Act, the assessing officer himself recorded the fact that Aricent Technologies Pvt Ltd. merged with Aricent Technologies (Holdings) Ltd, even then, the Respondents are taking an averment that the facts of amalgamation was not informed to assessing officer before issuance of jurisdictional notice under section 148 on 29.07.2022. [Refer: Annexure 'C' @ Pg. 99] Thus the Petitioner has repeatedly informed the assessing officer regarding the amalgamation and, therefore, the decision in the ....
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....ccepted by the Respondent No. 1 while passing the impugned order at Pg. 286 (para 7.c) however, still the Respondent No. 1 proceeded to issue notice in the name of the non-existent amalgamating entity. • Apart from the above, the Petitioner has also raised other legal issues including AY 2013-14 being barred by time limitation in view of the first proviso. The Petitioner has also raised the issue that no income chargeable to tax has escaped assessment in the facts of the present case. On merits, this issue is covered by the decision of this Hon'ble Court passed in the case of the sister-concern annexed as Annexure P-15, Pg. 333. 103. WP(C) No. 5868/2023 Elite Wealth Ltd. vs. ITO 2015-16 w.e.f. 01.04.2020 16.03.2021 08.06.2021 *Earlier a W.P(C)-13647/2021 was filed before this Hon'ble Court and Department was well Informed. That the same was disposed off in light of the decision passed in the case of Mon Mohan Kohli. [ANN: P-7] - 28.11.2017 u/s 143(3) in the hands of Amalgamating Entity i.e., Elite Comtrade Private Limited 30.06.2021 Notice (section 148 of the Act) issued to Amalgamating Entity i.e., Elite Comtrade Private Limited In....
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....the proceedings emanating therefrom) 2014-15 w.e.f. 01.04.2018 09.01.2009 28.12.2017 Notice under section 148 of the Act was never served on the Petitioner. The factum of reassessment proceedings was informed by virtue of a notice issued under section 142(1) of the Act. Notice u/s 142(1) dated 15.03.22 issued in the name of non-existent entity [Ann. P1 - Pg. 42 to 44 of the WP] Notice dated 20.05.2022 issued under section 148A(b) of the Act [Pg. 153 -155 of the WP]. Erstwhile as well as New regime 91. WP(C) No. 5166/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2013-14 01.04.2011 27.05.2013 Intimation - 03.05.2018 - also requested to surrender PAN [Pg. 63 of the WP -Ann. P5] Amalgamation related modification was not required as necessary changes were incorporated during the course of filing of original return. The fact that revised return was filed for AY 2012-13, has been noted in Assessment Order dated 23.03.2015 for AY 2012-13. [Pg. 55 of the WP - Ann. P3] Order dated 29.01.2016 - scrutiny assessment - the returned income was accepted.[Pg. 59-60 of the WP - Ann....
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.... • Reassessment on the amalgamated entity was concluded vide Order dated 30.03.2022. [Pg. 504-505 of the WP (5134-2022)] Notice dated 26.03.2021 under section 148 of the Act - Pg. 49 of the WP - Ann. P1. Erstwhile regime 90. WP(C) No. 5165/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2017-18 01.04.2011 27.05.2013 Intimation -03.05.2018 -also requested to surrender PAN [Pg. 75 of the WP -Ann. P6] Amalgamation related modification was not required as necessary changes were incorporated during the course of filing of original return. The fact that revised return was filed for AY 2012-13, has been noted in Assessment Order dated 23.03.2015 for AY 2012-13. [Pg. 69-70 of the WP - Ann. P4] Regular assessment concluded vide dated 29.12.2019. [Pg. 73-34 of the WP - Ann. P5] Reassessment on the amalgamated entity was concluded vide Order dated 30.03.2022. [Pg. 506-507 of the WP (5134-2022)] Notice dated 26.03.2021 under section 148 of the Act - Pg. 59 of the WP - Ann. P1. Erstwhile regime Remarks: Assessment in the case of amalgamated entity was framed in 23.03.2015 for AY 2012....
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.... of the erstwhile entity, is under challenge. • The DRP vide directions dated 29.04.2022, categorically directed the AO to pass the final assessment order as per the name given in the directions (i.e., John Wiley & Sons, Inc. / amalgamated entity) (refer para 2.1 of the DRP directions on page 54 and 55 of the appeal for DRP directions in AY 2018-19 and 3 2019-20 respectively). The said fact has also been acknowledged by the ITAT vide order dated 20.02.2023 at para 2.1 on page 27 for the ITAT order at page 22-27 of the appeal for AY 2018-19 and AY 2019-20. Thus, since the DRP directions were not followed by the AO in both letter and spirit, as per scheme of 144C of the Act, the final assessment order is bad in law and liable to bequashed on this count as well. 17. ITA No. 554/2023 CIT vs John Wiley & Sons, Inc. (The assessment order dated 20.06.2022 passed in the name of erstwhile entity is under challenge) 2018-19 w.e.f. 15.05.2018 (Scheme approved by Secretary of State, New York on 15.05.2018) - - 18.11.2020 - 1^st intimation 17.03.2021 - 2^nd intimation 23.03.2021 - 3^rd intimation 11.04.2019 (Revised post defect notice) Draf....