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TMI Blog2017 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income for Assessment Year ('AY') 2008-09 on 19th August, 2008. This return was processed under Section 143(1) of the Act. 3. VBPPL stood amalgamated with the Petitioner with effect from 1st April, 2012. The scheme of amalgamation was approved by the High Court by an order dated 20th February, 2013 in Company Petition No. 287 of 2012. In the said petition were the Transferor companies and included VBPPL. The transferee company was the Petitioner herein i.e. BBDPL. Paragraph 16 of the said order reads as under: "16. An affidavit dated 6th February 2013 has been filed on behalf of the Petitioner companies stating that any notices to the Transferor companies under the Act that may be issued hereafter will be responded to by the Transferee company. With this, none of the objections raised by the RD survives." 4. On 3rd April, 2012 the Deputy Commissioner of Income Tax, Circle-16(1) (hereafter Assessing Officer -'AO') issued a notice under Section 148 of the Act to VBPPL for the AY 2008-09 stating that he had reason to believe that income chargeable to tax for the said AY had escaped assessment. 5. On 26th April, 2012, VBPPL wrote to the AO stating that the return originally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Gupta, one of the Directors of the Petitioners at his premises at 21, Third Floor, Lajpat Nagar, New Delhi. It is pointed out that the Petitioner was not associated with the premises. Mr. Gupta was not connected with VBPPL at any point in time. Secondly, not a single document belonging to VBPPL was found by the search party in the premises. Without prejudices to this contention it was stated that the return already filed by VBPPL for the AY in question on 19th August, 2008 should be treated as the return filed in response to the notice under Section 153A of the Act. 11. On 16th November, 2015 another notice under Section 153A was issued this time to the Petitioner and it was indicated in "successor in interest of erstwhile company M/s. Verma Buildtech Promoters Pvt. Ltd." The said notice acknowledged that VBPPL had merged with the Petitioner with effect from 1st April, 2012 and, therefore, the Petitioner was responsible to represent VBPPL for the period prior to its amalgamation. Therefore, the Petitioner was asked to furnish a return for VBPPL for the AY in question in the prescribed form. 12. The Petitioner replied on 1st December, 2015 pointing out that on the date of issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said proceedings. 17. While directing notice to issue in this petition on 28th March 2016, this Court directed that the order framed in the reassessment proceedings would not be given effect to. In the reply filed to the petition, the stand taken by the Revenue is that the original notice issued on 3rd April, 2012 was issued within four years from the end of the relevant AY and, therefore, was valid. In the proceedings in the Company Court the Regional Director ('RD') had filed an affidavit on 4th December, 2012 objecting to raising capital at a huge premium when the net worth of the company was insignificant. Reference was also drawn to the portion of the order dated 20th February, 2013 of the High Court where one of the conditions on which the amalgamation was approved was that any notice to the transferor company (which included VBPPL) would have to be responded to by the transferee company i.e. the Petitioner. It is further pointed out that at the time the notice under Section 148 of the Act was issued, the Revenue was not made aware of the process of amalgamation. Even when the subsequent notices were issued, and even when the search was carried out, the Revenue was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamated company would stand dissolved from the date on which the amalgamation/transfer would take effect." In that case, the Court was of the view that the notices impugned therein issued to the entity after it was amalgamated were liable to be set aside on that ground alone. The Court referred to the decision of this Court dated 3rd August, 2015 in ITA No. 471 of 2011 (Spice Infotainment Ltd. v. CIT) where the Court had upheld the order of the ITAT declaring the assessment against an Assessee after it was dissolved to be invalid. The Court termed it a 'jurisdictional defect'. 23. In the present case not only was the initial notice under Section 148 of the Act issued to a non-existent entity even the search under Section 153A took place against a non-existent entity. Both the warrant of authorisation and the panchnama were drawn in the name of VBPPL on 3rd January, 2014 by which date even the order of the High Court approving the amalgamation of the VBPPL with the Petitioner had been passed. Clearly, therefore, the entire proceedings under Section 153A of the Act were void ab initio. Therefore, the question of invoking Section 153 A (2) of the Act to revive the abated re-asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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