2021 (9) TMI 1104 - HC - Income Tax

Validity of draft assessment order passed under Section 143(3) read with Section 144C - Scope of alternate remedy - as argued in Writ Court ought not to have upheld the draft assessment order for the Assessment Year 2013-14, passed in the name of a non-existing transferor company/ amalgamating company, even though the assessee had intimated the fact of amalgamation to the Assessing Officer - HELD THAT - Notice under Section 142(1) read with Section 129 dated 02.11.2016, was issued to the assessee in connection with the assessment for the assessment year under consideration, directing them to appear in person and furnish as many as 30 details, which include the date of incorporation along with the details of the merger/de-merger or amalgamation, since the year in which the company was incorporated; details of the share holding percentage of the company, etc. In response to the said notice, the assessee, by reply dated 15.12.2016, gave a brief background of the company - It would be difficult for us to read this sentence in the reply dated 15.12.2016 to mean that the assessee had questioned the jurisdiction of the Assessing Officer to exercise power as is canvassed before us, as well as what was canvassed before the learned Single Bench. Thus, the Assessing Officer appears to have been left with no other option, except to proceed with the draft assessment order. Since the jurisdictional aspect is not a pure question of law as arisen in this case and also taking note of the conduct of the assessee in the manner in which they have approached the problem, than what is being now focused before this Court, we are of the view that the appellant-assessee should definitely avail the remedy provided under the Act. The issue as to whether the assessment could have been completed by passing a draft assessment order on a non-existing entity is a matter to be decided before the authorities in the remedies provided to the assessee under the Act and not before a Writ Court. Writ Court, while dismissing the Writ petition, had made certain observations, some of which may affect the assessee when we relegate the assessee to avail the remedies under the Act. Therefore, we are of the view that all those observations and the findings should be vacated and the assessee should be free to raise all issues before the assessing authority, before whom they choose to approach, challenging the draft assessment order. Writ Appeal is dismissed and the findings rendered by the learned Writ Court while dismissing the Writ Petition are vacated in its entirety and the assessee is granted liberty to avail the alternative remedy provided under the provisions of the Income Tax Act, 1961.

Summary

Issues:
Challenge to draft assessment order under Section 143(3) of the Income Tax Act, 1961 for Assessment Year 2013-14 due to amalgamation and jurisdictional defects.

Analysis:
The appellant-assessee challenged a draft assessment order dated 31.12.2016 under Section 143(3) of the Income Tax Act, 1961 for the Assessment Year 2013-14. The Single Bench dismissed the Writ Petition, stating the appellant could have filed a composite return to determine tax liability after merging with another company. The appellant argued that the Writ Court erred in upholding the draft assessment order for a non-existing company post-amalgamation, despite notifying the Assessing Officer. The appellant contended that filing in the name of the transferor company was due to online system limitations. The Revenue argued that a Writ Petition was not maintainable against a draft assessment order, advising the appellant to seek remedies under the Act.

The Court noted that the Assessing Officer issued a notice under Section 142(1) requesting details related to the amalgamation, but the appellant's response did not clearly challenge jurisdiction. Considering the conduct of the appellant and the complexity of jurisdictional issues, the Court advised the appellant to pursue remedies under the Act. The appellant's argument that prior notifications about amalgamation entitled them to challenge the assessment on a non-existing entity was deemed a mixed question of law and fact, best addressed through statutory remedies.

The Court dismissed the Writ Appeal, vacated the Writ Court's findings, and granted the appellant liberty to utilize remedies under the Income Tax Act, emphasizing that the assessment's validity as an assessment on a non-existing entity should be decided by the relevant authority. The Court emphasized that all issues should be raised before the assessing authority as per statutory provisions, allowing for a thorough examination of the matter. No costs were awarded, and the case was closed.

This judgment highlights the importance of following statutory procedures to address complex jurisdictional issues arising from amalgamations and draft assessment orders under the Income Tax Act, ensuring that all concerns are appropriately raised and examined within the statutory framework.