TaxTMI 
TaxTMI 
2024 (11) TMI 695
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....tion of India, the petitioners have challenged the issuance of Notices under Section 148 of the Income Tax Act, 1961 (for short 'the Act') mainly on the ground that the notices have been issued against non-existing companies/assessees. 3. The details pertaining to each of the petitions are summarised in tabular form as under : Sr.No. SCA & A.Y. Petitioner / New Entity N.E. Entity and 148 Notice Fact on Amalgamation Remarks 1 5165 of 2022 (AY 2016-17) Olympic Décor LLP (ODLLP) Notice Dt. 27.03.2021 on Olympic Laminates Private Limited (OLPL). -Pg. 75 *OLPL merged into Sara Suppliers Private Limited on 06.01.2015 vide HC Order. (Pg. 16-29). *Sara Suppliers Private Limited Converted into LLP on 16.03.2016 (Pg. 71) *Sara Suppliers Changed the name into Olympic Décor LLP on 28.03.2016 (Pg. 72) *HC issued notice to IT department inviting objections against the amalgamation on 06.01.2015 (Pg. 16-29) and 02.11.2015 (Pg. 130-131). *143(3) done on new entity - ODLLP on 28.03.2018 (Pg. 132). *Amalgamation was also intimated by filing an objection against reasons on 29.03.2021 (Pg. 86-93) and 21.02.2022 (Pg. 94-100) 2 5276 of 2022 (AY 2017-18) Olympic Dé....
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....o KFPL on 24.06.2019 vide NCLT Order (Pg. 68-73) NCLT issued notice u/s 230 (5) COM Act 2013 to IT department inviting objections against the amalgamation on 02.07.2018 (Pg. 147-148). *Amalgamation was also intimated by filing an objection against reasons on 06.01.2022 (Pg. 112-117) and 22.02.2022 (Pg. 118-119) 4. The above details clearly indicate that the impugned show-cause notices have been issued by the respondent after the amalgamation has taken place pursuant to the order passed by this Court in case of each petitioner. 5.1. Learned advocate Mr. Darshan Gandhi for the petitioners submitted that the law is well settled as to the effect that upon the issuance of notices for re-assessment on the non-existing companies after the amalgamation is given effect to, such notices would be without jurisdiction and are liable to be quashed and set aside. 5.2. In support of his submissions, reliance is placed on the decisions of the Hon'ble Supreme Court in cases of Deputy Commissioner of Income-tax Versus Sterlite Technologies Ltd. reported in [2004] 158 taxmann.com 242 (SC) and Principal Commissioner of Income Tax, New Delhi Versus Versus Maruti Suzuki India Limited reported in [2....
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....refore, in view of the above mentioned decision of the Hon'ble Supreme Court, the impugned notice cannot be held to be without jurisdiction. 7. Considering the facts of the case and in view of the settled legal position, it is not in dispute that while passing the amalgumation order, the High Court had provided an opportunity of raising the objections by the Income Tax Department and in absence of any objection, the amalgamation order was passed. The Hon'ble Supreme Court in case of Maruti Suzuki India Limited (Supra) has held as under: "31. 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 292B. A close reading of the order of this Court dated 6 April 2018, however indicates that what....
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....f 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 preceding that year, assessed on the predecessor, cannot be recovered from him, the 99[Assessing] Officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor and the successor shall be entitled to recover from the predecessor any sum so paid. ....
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....l on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v. CIT [1943] 11 ITR 202 (Bom.) ("Maharaja of Patiala"). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as "His Highness...late Maharaja of Patiala". The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh (supra) held that an omission to serve or any defect in the service o....