2021 (12) TMI 827 - HC - Income Tax

Validity of reopening of assessment u/s 147 - Notice in the name of company ceased to exist - HELD THAT - As per MARUTI SUZUKI INDIA LIMITED 2019 (7) TMI 1449 - SUPREME COURT case respondent has invoked jurisdiction of issuance of notice under Section 148 of the Act to an entity that had ceased to exist. This is notwithstanding the fact that Respondent No.1 was aware that Nirvan Holdings Pvt. Ltd., had ceased to exist. For reasons mentioned above, we state that Respondent No.1 was aware that Nirvan Holdings Pvt. Ltd. has ceased to exist. The stand now taken in the affidavit in reply is nothing but an after thought - the stand of Respondent No.1 today taken as afterthought that it was an error which could be corrected under Section 292B of the Act is not acceptable to this court. - Decided in favour of assessee.

Summary

Issues:
Impugning notice under Section 148 of the Income Tax Act, 1961 for A.Y. 2012-13 and the order disposing of objections based on the notice issued to a non-existing entity.

Analysis:
1. The notice and order were issued to a company that had ceased to exist due to a merger. The petitioner, now known as Alok Knit Exports Limited, had merged with Nirvan Holdings Pvt. Ltd. as per a court-approved scheme of amalgamation. The Assessing Officer issued the notice and order to Nirvan Holdings Pvt. Ltd., despite its non-existence post-merger. The petitioner raised objections, citing legal grounds and judgments supporting their position.

2. The Assessing Officer justified the notice issuance, claiming the petitioner had responded to the notice in the name of Nirvan Holdings Pvt. Ltd. However, the communication mentioned both entities, indicating the amalgamation. The officer's stance was inconsistent, and his reliance on Section 292B of the Act to correct the error was deemed unacceptable.

3. Referring to the Supreme Court's ruling in Principal Commissioner of Income Tax v. Maruti Suzuki India Ltd., the High Court emphasized that jurisdiction invoked based on a non-existent entity is fundamentally flawed. The court held that the Assessing Officer's actions were erroneous, as the entity in question had ceased to exist post-merger, and the officer failed to verify the existing records before issuing the notice.

4. The High Court found the Respondent's post-facto justification unconvincing and allowed the petition, quashing the notice and the subsequent order. The court directed the tax authority to provide a copy of the order to the Assessing Officer for information. The judgment highlighted the importance of ensuring legal compliance and proper verification before initiating tax proceedings against entities affected by mergers or amalgamations.