2024 (10) TMI 1001

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....t the admission stage. 2. One Uber India Research and Development Private Limited stood amalgamated with the Petitioner by virtue of an Order dated 1 November 2023 passed by the National Company Law Tribunal (NCLT), approving a scheme of amalgamation. Such order is placed on record at Exhibit-S to this Petition. 3. The present proceedings concern, the amalgamating company, Uber India Research and Development Private Limited (for short "the Assessee"), which has become a non-existent company by virtue of its amalgamation with the Petitioner. 4. It is the Petitioner's case that the fact of amalgamation of the assessee was intimated to Respondent No. 1 as also to Respondent No. 3 by a communication dated 22 December 2023, which wa....

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....t matter of challenge in this Petition. 6. After issuance of the impugned notice under Section 148, the Petitioner addressed a letter dated 6 May 2024 to Respondent No. 1, raising objections against the said notice and pointing out the reasons as to why the proceedings cannot be taken forward, however there was no response to the Petitioner's letters. It is at such stage the Petitioner has approached this Court by the present Petition inter alia praying for the following substantive reliefs :- (a) that this Hon'ble Court may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate Writ, Order or direction, calling for the records of the Petitioner's case and after going ....

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....iting Respondents from taking any steps in furtherance of the show cause notice issued U/S 148A (b) of the Act dated 31.03.2024 ("Exhibit T"), the impugned order dated 10.04.2024 passed under Section 148A (d) of the Act ("Exhibit V") and the subsequent notice dated 10.04.2024 ("Exhibit W") issued under Section 148 of the Act. 7. We have heard Mr. Mistri, learned Senior Counsel for the Petitioner, and Mr. Sharma, learned Counsel for the Respondents. We have also perused the record. 8. Although Mr. Mistri has raised several contentions in assailing the impugned notice issued under Section 148 of the Act, his primary contention is that the impugned notice needs to be held invalid and illegal, primarily for the reason that the same has be....

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....to reopen its assessment for the assessment year in question. 10. At the outset, we may observe that Respondent no. 1 is based at Hyderabad in the State of Telangana. Thus, at the outset, we address the issue as to whether this Court can exercise jurisdiction under Article 226 of the Constitution, when Respondent No. 1, against whom the relief is sought, is not situated within the territorial jurisdiction of this Court. In this context, we may observe that it is not in dispute that, in the facts of the present case, although the impugned notice is issued to the assessee which is a non existent company, the same is served on the Petitioner, whose registered office is within the territorial jurisdiction of this Court, and who has received ....

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.... Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd.(supra) is apposite. In such decision the Supreme Court has held that once the amalgamating company had ceased to exist as a result of the scheme of amalgamation approved by the NCLT, there was no warrant in law for the Assessing Officer to proceed against a non-existent company. The relevant observations of the Supreme Court in the said decision are required to be noted which reads thus:- 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 in....

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....s ceasing to exist, it cannot be regarded as a person against whom assessment proceeding can be initiated. In said case before notice under section 143 (2) of the Act was issued on 26-9-2013, the scheme of amalgamation had been approved by the high court with effect from 1-4-2012. It has been observed that assessment order passed for the assessment year 2012-13 in the name of non-existing entity is a substantive illegality and would not be procedural violation of Section 292 (b) of the Act. The Supreme Court in its aforesaid decision, has quoted an extract from its decision in Saraswati Industrial Syndicate Lid. v. CIT [1990] 53 Taxman 92/186 ITR 278. The Supreme Court has also referred to decision of Delhi high court in the case of CIT v. ....