2023 (4) TMI 248 - HC - Income Tax

Reopening of assessment u/s 147 - notice in the name of a non-existing company - notice issued in the name of the company as already been amalgamated - HELD THAT - As relying on TAKSHASHILA REALTIES PVT LTD VERSUS DY COMMISSIONER OF INCOME TAX CIRCLE 4 (1) (2) 2016 (12) TMI 872 - GUJARAT HIGH COURT assessment can always be made and is supposed to be made on the transferee Company taking into account the income of both the transferor and transferee Company and also the more advisable course from the point of view of the revenue would be to make one assessment on the transferee Company and to make separate protective assessments on both the transferor and transferee Companies separately ultimately, the Division Bench has held that the transferor Company would no longer be amenable to the assessment proceedings for the Assessment Year 2010-11, and therefore, notice for producing documents for such assessment would therefore be invalid. Thus impugned notice was issued in the name of non-existing company in spite of revenue having notice and knowledge of non-existence of such Company. Decided in favour of assessee.

Summary

Issues involved:
The issues involved in this case include the challenge to an impugned notice dated April 20, 2021, relating to assessment year 2013-14 under section 148 of the Income Tax Act, 1961, on the grounds that the notice was issued in the name of a company that had already been amalgamated, rendering it a non-existing entity.

Details of the Judgment:

Challenge to Impugned Notice:
The petitioner challenged the impugned notice issued under section 148 of the Income Tax Act, 1961, for the assessment year 2013-14, contending that it was issued in the name of a company that had already been amalgamated on 11.08.21. The petitioner argued that the department had been informed about this amalgamation, making the notice invalid in the eyes of the law.

Legal Precedent:
The petitioner relied on a decision of the Gujarat High Court in the case of Takshashila Realties Pvt. Ltd. v. Deputy Commissioner of Income Tax, where it was held that notices issued against a non-existent company post-amalgamation are not sustainable. The Court emphasized that once a scheme of amalgamation has been sanctioned, the amalgamating company ceases to exist, and any notices issued against it are invalid.

Court's Decision:
After considering the submissions of both parties, the Court held that the impugned notice dated April 20, 2021, was not tenable in the eyes of the law. The Court ruled that all further steps pursuant to the impugned notice were also invalid. Consequently, the writ petition was allowed, and the impugned notice was quashed on the grounds that it was issued in the name of a non-existing company, despite the revenue being aware of its non-existence.

Disposition of the Case:
Since no affidavits were called for, the Court deemed the allegations made in the writ petition to have been denied by the respondents. Accordingly, the writ petition was disposed of.

This judgment highlights the importance of legal compliance in issuing notices post-amalgamation and underscores the consequences of issuing notices against non-existent entities in the realm of taxation law.