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2024 (2) TMI 643 - HC - Income TaxReopening of assessment against company dissolved - company (since dissolved) had applied for striking off its name under Section 560 of the Companies Act, 1956 because the company was inoperative from two years and there was no feasible opportunity available to carry on its business - HELD THAT - We would agree with Petitioners that as held in Maruti Suziki India 2019 (7) TMI 1449 - SUPREME COURT where the Court has also considered Saraswati Industrial Syndicate Ltd. 1990 (9) TMI 1 - SUPREME COURT once a company is dissolved it ceases to exist in the eyes of law. Though the case of Saraswati (supra) was involving a scheme of amalgamation that would not change the legal position that once a company is dissolved it ceases to exist in the eyes of law. Thereafter, it cannot be treated as a person against whom assessment proceeding can be initiated under the Act. The notice issued u/s 148 cannot be a valid notice and consequently, the assessment order passed, which is also impugned in this petition pursuant to the liberty granted by the Court to amend the petition, also has to be quashed.
Issues involved:
The issues involved in the judgment are the validity of a notice issued under Section 148 of the Income Tax Act, 1961 seeking to re-open the assessment for Assessment Year 2008-09 of a dissolved company, and the consequent assessment order passed under Section 143(3) r/w Section 147 of the Act. Validity of Notice and Assessment Order: The petition was filed by the Directors of a dissolved company challenging a notice seeking to re-open the assessment and the assessment order passed thereafter. The Assessing Officer issued the notice and framed the assessment even though the company had been dissolved and was no longer in existence. The High Court noted that the notice and assessment order were without jurisdiction as they were issued in respect of a non-existing entity. The Court granted interim relief by staying the assessment order and restraining the Revenue from further proceedings. Affidavit by Registrar of Companies: An affidavit by the Registrar of Companies stated that the dissolved company had applied for striking off its name under the Companies Act, 1956, due to inoperativeness and lack of feasible business opportunities. The application process involved inviting objections from stakeholders and relevant authorities, with no objections received. The name of the company was struck off the register after due process. Legal Validity of Notice and Assessment Order: The petitioner argued that the Income Tax Department should have objected to the company being struck off before issuing the notice under Section 148 of the Income Tax Act. Citing relevant case law, the petitioner contended that once a company is dissolved, it ceases to exist in the eyes of the law and cannot be subject to assessment proceedings. The High Court agreed with this argument, emphasizing that a dissolved company cannot be treated as a 'person' against whom assessment proceedings can be initiated. Quashing of Notice and Assessment Order: In light of the legal position that a dissolved company ceases to exist, the High Court held that the notice issued under Section 148 of the Act was invalid, and consequently, the assessment order passed based on that notice was also quashed. The Court ordered the same, thereby nullifying the assessment proceedings against the non-existing entity. Restoration of Company to Register: The Respondent sought leave to take steps under the Companies Act to restore the company to the register and pursue further actions under the law. The Court did not make any observations on this request, leaving it open for the Respondent to proceed accordingly. The rights and contentions of the Petitioner were also kept open to defend against any actions taken by the Revenue in this regard. Conclusion: The petition was disposed of with no order as to costs, as the High Court quashed the invalid notice and assessment order issued against a dissolved company, emphasizing the legal principle that a dissolved entity ceases to exist and cannot be subject to assessment proceedings.
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