2022 (4) TMI 116 - HC - Income Tax

Reopening of assessment in the name of company ceased to exist - HELD THAT - In Principal Commissioner of Income Tax Vs. Maruti Suzuki India Ltd. 2019 (7) TMI 1449 - SUPREME COURT the Apex Court held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation and notice issued to non existing company, is not curable defect under Section 292-B - Notice under which jurisdiction was assumed by the Assessing Officer was issued to the non existing company which amounts to substantive illegality and not a procedural violation of the nature adverted to in Section 292-B. The Court held that such a notice can not be stated to be valid - notice issued to non existing entity is not valid. - Decided in favour of assessee.

Summary

Issues:
1. Validity of notice under Section 148 of the Income Tax Act, 1961 issued to a non-existing company.
2. Legal implications of a company's merger on tax jurisdiction and notices.
3. Admissibility of objections to re-opening based on company merger.

Analysis:
1. The petitioner challenged the notice under Section 148 of the Income Tax Act, 1961, issued to a non-existing company, Scope Pvt. Ltd., which had merged with the petitioner. The petitioner argued that the notice was invalid due to Scope's dissolution post-merger, as per the Companies Act 2013. The petitioner contended that the notice should have been issued to the surviving entity post-merger, i.e., the petitioner.

2. The Court referred to the case of Principal Commissioner of Income Tax Vs. Maruti Suzuki India Ltd., where the Supreme Court held that a notice issued to a non-existing company post-merger is a substantive illegality. The Court emphasized that jurisdiction based on such a notice is fundamentally flawed as the amalgamating entity ceases to exist upon merger approval. The Court reiterated that such notices are not curable under Section 292-B of the Act, emphasizing the importance of issuing notices to the correct, existing entity.

3. Additionally, the Court cited the case of Alok Industries Ltd. Vs. Dy. CIT-Circle1(1), Mumbai, where it was held that notices issued to non-existing entities are invalid. The Court upheld the legal principle that notices must be served to the correct, existing entity, especially in cases of mergers where the amalgamating entity no longer exists. Consequently, the Court allowed the petition and quashed the notice dated 30.06.2021 and the subsequent order dated 03.02.2022, emphasizing the importance of adhering to legal procedures in tax matters.

Conclusion:
The High Court of Bombay, in line with legal precedents, ruled in favor of the petitioner, highlighting the necessity of issuing valid notices to existing entities, particularly in cases of mergers where the amalgamating entity ceases to exist. The judgment emphasized the importance of legal compliance in tax matters and set a precedent for ensuring the correct application of tax jurisdiction post-mergers to avoid substantive legal flaws in notice issuance.