TaxTMI 
TaxTMI 
2024 (12) TMI 1329
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.... not considering that the instant case is covered by the judgement of Delhi High Court in the case of Skylight Hospitality LLP v/s ACIT (WP(C) 10870/2017 where SLP filed against this order was also dismissed by the Apex Court? 2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was correct in not considering the fact that on similar issue, the Hon'ble Supreme Court in the case of PCIT-Central V/s. Mahagun Realtors (P) Ltd. (566(SC)/2022/443/ITR 194(SC)) dated 05.04.2022 have decided the appeal in favour of Income Tax Department wherein the proceedings were conducted against the transferor company? 3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was correct in not considering the fact that the defect in recording the name of a non-existent company in a notice u/s. 148 of the I.T. Act, 1961 was a mistake curable under section 292B of the Act as the final assessment order has been passed on the resulting company. 4. The appellant prays that the order of CIT(A) on the above ground be set-aside and that of the assessing officer be restored." 4. In the present appeal, The solitary grievance by....
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....stent entity is void ab initio as the notice under section 148 was issued on a non-existent entity. Accordingly, the learned CIT(A) quashed the impugned order and decided the appeal in favour of the assessee. The relevant findings of the learned CIT(A), vide impugned order, are reproduced as follows: "6.1.3 Considering the written submission of the appellant and the supporting documentary evidences furnished, it is found that the appellant's contentions are genuine. While reopening the assessment, the notice u/s. 148 was issued on a company which was not existent as on the date of issue of the said notice. The appellant's request for deactivation of the PAN was not taken into consideration and the re-assessment was completed on the merged entity M/s. Carron Investment Pvt. Ltd., for the A.Y.2013-14. 6.1.4 The appellant has quoted decisions of the following judicial authorities in support of its contentions in the form of Ground No.1: 1) Genpact India (P) Ltd., Vs. DCIT ITAT, Delhi [2020] 118 taxmann.com 40 2) ACIT Vs. Vahanvati Consultants (P) Ltd., SC [2022) 135 Taxmann.com 52 6.1.5 It is relevant to bring here the decision rend....
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....on of the companies vide order, dt. 19/07/2017 of the NCLT, Mumbai Bench, Mumbai. 3) In spite of the above, notice u/s. 148 of the Act was issued and the assessment reopened u/s. 147 on 31/03/2021 on the PAN AABCH4502L in the name of the non-existing company M/s. Modern Trading Business Pvt. Ltd., and subsequently passing the order in the name of the amalgamating Company M/s. Carron Investments Private Limited. 6.1.7 In view of the above, Ground No. 1 is allowed. 6.2 As the impugned assessment order, dt.31/03/2022 by issuing notice u/s. 148 on a non-existent company, is treated as ab initio void and has no legality, remaining grounds of appeal raised by the appellant are not adjudicated separately and the appeal filed by the appellant is treated allowed." 7. During the hearing, the learned Departmental Representative ("learned DR") by placing reliance upon the decision of the Hon'ble Delhi High Court in Sky light Hospitality LLP vs. ACIT, reported in (2018) 405 ITR 296 (Delhi), submitted that re-assessment notice issued in the name of erstwhile entity would not invalidate the re-assessment proceedings as this error is curable under section 292B of the ....
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....er. However, in the present case, as noted in the foregoing paragraphs, after the merger of M/s. Modern Trading Business Pvt. Ltd. with M/s. Carron Investment Pvt. Ltd. vide order dated 19.07.2017 passed by the Hon'ble NCLT, the assessee filed a letter dated 21.03.2018 before the Income Tax Officer, Ward-1(2)(4) Mumbai intimating the fact of merger and requested for deactivation of PAN of non-existing entity, i.e., M/s. Modern Trading Business Pvt. Ltd. No material has been brought on record to controvert the aforesaid factual position. Thus, we are of the considered view that the decision of the Hon'ble Supreme Court in Mahagum Realtors Pvt. Ltd. (supra) is distinguishable on facts and therefore, is not applicable to the present case. As regards the reliance placed upon the decision of the Hon'ble Delhi High Court in Sky Light Hospitality LLP (supra), we find that the Hon'ble Supreme Court in Maruti Suzuki India Ltd. (supra) in paragraph 18(vii) noted the fact that the said decision was rendered in its own peculiar facts, which was further emphasized by the Hon'ble Supreme Court while dismissing the SLP against the decision of Hon'ble Delhi High Court. 10. We find that recently....
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....he Revenue, on instructions, would not dispute that the Assessee (Uber India Research and Development Private Limited) stood amalgamated with the Petitioner and therefore the assessee was a non-existing entity, so as to legally respond to the action being initiated by Respondent No.1, 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 the impugned notice at Mumbai. It is the Petitioner which is required to defend such notice as served on it at Mumbai. The Petitioner is an Assessee within the....
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....of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment (supra). 12. The decision of the Supreme Court in Maruti Suzuki India Ltd. (supra) is followed by a Co-ordinate Bench of this Court to allow Teleperformance Global Services (P.) Ltd. (supra), the facts therein being identical to the case in hand. The relevant observations of this Court in the decision of Teleperformance Global Services (P) Ltd. (supra) are required to be noted which read thus:- "22. The Supreme Court in the case of Maruti Suzuki India Ltd. (supra) had considered that income, which was subject to be charged to tax for the assessment year 2012-13 was the income of erstwhile entity prior to amalgamation. Transferee had assumed liabilities of transferor company including that of tax. The consequence of approved scheme of amalgamation was that amalgamating company had ceased to exist and ....