2022 (10) TMI 1058 - HC - Income Tax

Reopening of assessment u/s 147 - notice being in the name of a non-existent company which was amalgamated with the Petitioner Company - HELD THAT - As notice being in the name of a non-existent company cannot be complied with and accordingly, the petitioner company cannot file return in response to notice under Section 148 of the Act in the name of Sare Marketing Private Limited with reference to PAN of above company. The impugned order passed under Section 148A(d) of the Income Tax Act, 1961 and the Notice issued under Section 148 for the Assessment Year 2014-15 are set aside. If the law permits the respondents/revenue to take further steps in the matter, they shall be at liberty to do so. Needless to state that if and when such steps are taken and if the petitioners have a grievance, they shall be at liberty to take their remedies in accordance with law.

Summary

Issues:
Challenge to Order under Section 148A(d) of the Income Tax Act, 1961 and Notice issued under Section 148 for AY 2014-15 due to being in the name of a non-existent company post-amalgamation.

Analysis:
The petitioner challenged the Order and Notice issued under Section 148A(d) of the Income Tax Act, 1961, and Section 148 for the Assessment Year 2014-15, contending that they were void ab initio as they were in the name of a company, Sare Marketing Private Limited, which had been amalgamated with the petitioner company, Sumant Investments Private Ltd., as per a court order dated 19th September 2014 under Sections 391-394 of the Companies Act, 1956. The petitioner argued that Sare Marketing Private Limited ceased to exist post-amalgamation, and thus, the impugned Order and Notice were invalid.

The petitioner informed the Respondent about the amalgamation through various responses to notices issued under Section 148 of the Act. Despite this, the Respondent proceeded to pass the impugned order under Section 148A(d) in the name of Sare Marketing Private Limited, disregarding the amalgamation. The petitioner highlighted that an assessment order for the previous year had been passed considering the amalgamation, emphasizing the non-existence of Sare Marketing Private Limited since the amalgamation.

Upon receiving instructions from the Assessing Officer, it was acknowledged that the entity Sare Marketing Private Limited was not in existence at the time of issuing the notices under Section 148A(b) and Section 148 of the Income Tax Act, 1961. Consequently, the impugned Order and Notice were set aside. The judgment allowed the respondents/revenue to take further steps if permitted by law, with the petitioners retaining the right to seek remedies in accordance with the law if aggrieved by any subsequent actions taken by the respondents. As a result, the present writ petition and application were disposed of accordingly.