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2020 (8) TMI 75 - HC - Income TaxValidity of reopening of assessment u/s 147 - notice issued to a company which is non-existent on the date as it stood amalgamated with the appellant/petitioner - HELD THAT - Assessing Officer was not aware of the amalgamation of the company moreover, the return of income for the assessment year 2014-15 had been filed on 07.03.2016 in the name of OAS by the appellant confirming the position that OAS was a functioning entity. Further, income tax refund issued by the Department in favour of OAS has been duly received and encashed by the appellant. Therefore, appellant cannot canvass the point that OAS was nonexistent and the proceedings initiated in its name would be bad in law. The decisions relied on by the appellant were sought to be distinguished. The learned Single Bench after consideration of the factual position, noted the conduct of the appellant in not bringing to the notice of the Revenue about the amalgamation, its conduct of filing return of income in the name of OAS after the amalgamation and obtained refunds issued in the name of OAS, which will all go to show that M/s.OAS continued to exist even after amalgamation. Therefore, the learned Single Bench correctly concluded that by the very conduct, the appellant had led the Department to believe that OAS, as an entity, existent. - Decided against assessee.
Issues:
Challenge against order passing penalty under Section 271(1)(c) of the Income Tax Act, 1961 and assessment order under Section 144 read with Section 147 of the Act due to company amalgamation. Analysis: The appellant challenged the order passed by the respondent, arguing that the company to whom the notice was issued did not exist at the time of issuance and had amalgamated with the appellant. The appellant cited various legal precedents to support their case, including decisions from the Hon'ble Supreme Court and other cases. The respondent contended that the appellant had not informed the Revenue about the amalgamation, had filed returns in the name of the non-existent company, and had received refunds in that name, thus leading the Revenue to believe the company still existed. The learned Single Bench analyzed the conduct of the appellant, noting that they had not informed the Revenue about the amalgamation and had continued to operate in the name of the non-existent company. The court found that the appellant's actions misled the Department into believing the company still existed. The court also distinguished the decisions cited by the appellant, stating they were not applicable to the current case. The High Court heard arguments from both parties and agreed with the learned Single Bench's reasoning to dismiss the writ petitions. The court emphasized that the orders being challenged were related to assessment and penalty, and a writ petition was not the appropriate remedy. The court also agreed with the Single Bench's assessment of the legal precedents cited by the appellant, highlighting the factual distinctions, especially in comparison to the Maruti Suzuki case. In a similar case previously considered by the High Court, it was held that framing an assessment against a non-existing entity is a jurisdictional defect, but in the present case, the facts were different, and the Maruti Suzuki decision was deemed inapplicable. The court found no grounds to interfere with the orders passed in the writ petitions and dismissed the appeals, extending the timelines for filing returns and completing reassessment proceedings. In conclusion, the High Court upheld the decision to dismiss the writ petitions, emphasizing the appellant's conduct, the inapplicability of cited legal precedents, and the availability of alternative remedies for challenging assessment and penalty orders.
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