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TMI Blog2017 (9) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new Company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the amalgamating Company loses its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the non-existent company." 4. The facts are that on 28th November 2011 Suzuki Powertrain India Ltd. ('SPIL') filed its return for AY 2011-12 declaring an income of ₹ 76,08,30,888/-. The return was processed under Section 143 (1) of the Income Tax Act, 1961 ('Act') and then picked up for scrutiny. Notices under Section 143 (2) of the Act were issued. 5. On 29th January 2013, this Court passed an order in Company Petition No. 490 of 2012 approving the Scheme of Amalgamation ('Scheme') by which SPIL (Amalgamating Company) was amalgamated with Maruti Suzuki India Ltd. ('MSIL') (Amalgamated Company) with effect from 1st April 2012 (the 'appointed date'). The Scheme inter alia provided that, "all the liabilities and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order itself being set aside. He further submits that the record of the assessment proceedings shows that MSIL participated in it fully and raised no objection as to the continuation of the proceedings on the ground of lack of jurisdiction. Mr Jain invokes Section 292B of the Act to urge that the Assessee is precluded from questioning the assessment order on the ground that it was passed in the name of a non-existent entity. He points out that below the name of the Amalgamating Company, the AO has taken care to mention that it has since been amalgamated with MSIL. 10. In reply, Mr. Ajay Vohra, learned Senior Counsel for the Assessee, has drawn the attention of the Court to a long line of decisions including Saraswati Industrial Syndicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent upon its amalgamation with Mcorp Private Limited w.e.f. 01.07.2003, was a mere "procedural defect"? (ii) whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that in view of the provisions of section 292B of the Act, the assessment, having in substance and effect, been framed on the amalgamated company which could not be regarded as null and void?" 11.3 This Court, in Spice Infotainment (supra) discussed and noted the following observations in the decision of the Supreme Court in Saraswati Industrial Syndicate (supra): "Generally, where only one Company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successor in place of the said "dead person. When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law. 11.5 Consequently, the aforesaid two questions were answered in favour of the Assessee and against the Revenue. 12. Even thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k place up to the date of the succession and of the precious year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor." (Emphasis Supplied) 7. The revenue seems to argue that the assessment is justified because the liabilities of the amalgamating company accrue to the amalgamated (transferee) company. While that is true, the question here is which entity must the assessment be made on. The text of Section 170(2) makes it clear that the assessment must be made on the successor (i.e., the amalgamated company)." 14. The submission that under Section 292B of the Act, the successor-in-interest is precluded from raising an objection if it has participated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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