AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 162
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndents to: (i) forthwith withdraw and cancel the said impugned Order dated 29.1.2025 (being Exhibit "A" hereto); and ii) forbear from taking any action in pursuance of or in implementation of the said impugned Order dated 29.1.2025 (being Exhibit "A" hereto). (c) For an order and declaration of this Hon'ble Court declaring serial No. 2 of notification no. 12/2017 ultra vires (being Exhibit "P" hereto). (d) For an interim order of an injunction of this Hon'ble Court, pending the hearing and final disposal of this petition: (i) Staying the operation of the said impugned Order dated 29.1.2025 (being Exhibit "A" hereto); and (ii) restraining the Respondents by themselves, their officers, subordinates, servants and agents from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of said impugned Order dated 29.1.2025 (being Exhibit "A" hereto);" 2. The Petition has been pressed only in respect of prayer clauses (a) and (b). Accordingly, we have not delved on the Petitioner's case in prayer clause (c), which pertains to the challenge to Notification No. 12/17. 3. Briefly, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....manding INR 363 crores under Section 74 of the CGST Act, along with penalty on the ground that the services by way of transfer of a going concern as a whole or independent part thereof is an exempted supply, and VMSL was not entitled to take Input Tax Credit (ITC) as per provisions of CGST Act. vi. On 8th November 2024 and 14th November 2024, the Petitioner submitted detailed replies to the show-cause notice dated 1st August 2024, which were uploaded on the portal, and the same were physically submitted. Consequent thereto, on 29th January 2025, an order of even date (impugned order) was passed by Respondent No. 2 without considering the submissions made by the Petitioner. It is in the aforesaid circumstances that the present Petition has been filed praying for the reliefs which are reproduced hereinabove. 4. Mr. Shroff, learned Senior Counsel appearing for the Petitioner, submitted that the impugned order is a nullity, being passed against a non existent entity hence the same is wholly without jurisdiction. He further contended that the order is vitiated by breach of the principles of natural justice, as none of the Petitioner's submissions regarding the legal effec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and have come to a conclusion that proceedings against non-existing entities are bad in law. In our view, the reliance placed on these decisions by the appellant-assessee supports the submissions made by them on the proposition that the proceedings against an amalgamating company post the amalgamation orders are void ab initio if the revenue had knowledge of the amalgamation prior to the proceedings." 6. Per Contra, learned Counsel for Respondent No. 2 Mr. Chandrashekhar contended that the decision in Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. (supra) is not applicable in the facts of the present case, inasmuch as the same is rendered in the context of the Income Tax Act, 1961. He further contended that in the facts of the present case, the provisions of Section 87 of the CGST Act are attracted. Mr. Chandrashekhar would rely on the affidavit-in-reply filed by Mr. Ravindra Dange, Commissioner of CGST and Central Excise, on behalf of the Respondents in support of his contentions. The relevant paragraphs of the affidavit-in-reply filed by Mr. Ravindra Dange in relation to the issuance of a show cause notice to a non-existent entity upon merger/amalg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....date of cancellation whether or not such tax and other dues are determined before or after the date of cancellation. The ratio of Maruti Suzuki India Limited relied upon by the petitioner is not applicable in this case as it is based on the interpretation of the Income Tax Act which did not have an express and elaborate provision like S. 87 of the CGST Act covering cases of amalgamation and merger of companies." 7. Having heard learned counsel for the parties and having perused the record, we find that the contentions urged on behalf of the Petitioner, particularly in view of the order dated 30th August 2018 passed by the NCLT is to the effect that the Petitioner is an entity formed pursuant to the merger of VMSL and Vodafone India Limited with Idea Cellular Limited. It is not in dispute that the said fact was duly intimated to the GST authorities at the time of amendment of the GST registration of Idea Cellular Limited. The same was also brought to their notice in the detailed replies filed in response to the show-cause notice dated 1st August 2024. 8. The Petitioner had also contended that in regard to the legal effect brought about by the order passed by the NCLT ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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." (iv) Fourthly, upon the amalgamating company ceasing to exist, it cannot be regarded as a person under Section 2(31) of the Act 1961 against whom assessment proceedings can be initiated or an order of assessment passed; (v) Fifthly, a notice under Section 143 (2) was issued on 26 September 2013 to the amalgamating company, SPIL, which was followed by a notice to it under Section 142(1); (vi) Sixthly, prior to the date on which the jurisdictional notice under Section 143 (2) was issued, the scheme of amalgamation had been approved on 29 January 2013 by the High Court of Delhi under the Companies Act 1956 with effect from 1 April 2012; (vii) Seventhly, the assessing officer assumed jurisdiction to make an assessment in pursuance of the notice under Section 143 (2). The notice was issued in the name of the amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company MSIL had addressed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....then such transactions of supply and receipt shall be included in the turnover of supply or receipt of the respective companies and they shall be liable to pay tax accordingly. (2) Notwithstanding anything contained in the said order, for the purposes of this Act, the said two or more companies shall be treated as distinct companies for the period up to the date of the said order and the registration certificates of the said companies shall be cancelled with effect from the date of the said order. 11. On a plain reading of the aforesaid provisions, it is clear that the same is applicable on fulfillment of the below mentioned conditions/ingredients:- i. When two or more companies have amalgamated or merged in pursuance of an order of court or of a tribunal or otherwise, and the order of amalgamation or merger is to take effect from a date earlier to the date of order of amalgamation or merger, and if in that intervening period, the two companies have supplied or received any goods or services or both to or from each other, then such transaction of supply and receipt shall be included in the turnover of supply or receipt of the respective companies and they will ....