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TMI Blog2020 (3) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... issues raised by the petitioner inasmuch as the limitation aspect, change of opinion, non-existence of tangible material and non-failure on the part of the assessee disclosing full and true material facts need not be examined. Without going into these aspects, the writ petition requires to be allowed on the ground of issuance of notice under Section 148 of the Act to the non-existing company. - Decided in favour of assessee. - Writ Petition No.56004/2018 (T – IT) - - - Dated:- 10-12-2019 - Mrs. Justice S. Sujatha For the Petitioner : Sri Chythanya K.K., Adv. For the Respondents : Sri E.I. Sanmathi, Adv. ORDER The petitioner has challenged the notice dated 28/03/2018 issued under Section 148 of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by the notice issued under Section 148 of the Act as well as the order of overruling the objections on the notice issued under Section 142(1) of the Act, is before this Court. 4.Learned counsel Sri. Chythanya K.K, appearing for the petitioner would submit that the notice issued under Section 148 of the Act impugned herein, is without jurisdiction as issued on the non-existing company and the same is nothing but change of opinion without any tangible material moreover, beyond the period of limitation prescribed under the first proviso to Section 147 of the Act. 5. Learned counsel has placed reliance on the judgment of the Hon ble Apex Court in the case of Principal Commissioner of Income Tax v. Maruti Suzuki India Ltd., reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the amalgamating company or amalgamated company, the proceedings initiated under Section 148 of the Act, cannot be held to be against a non-existing company. Accordingly, the learned counsel for the revenue seeks for dismissal of the writ petition. 8. I have given my anxious and careful consideration to the arguments addressed by the learned counsel for the parties and perused the material on record. 9. The main grievance of the learned counsel for the petitioner is that M/s. Tax smile.com India Pvt. Ltd., was amalgamated with M/s. eMudhra Ltd, in terms of the order dated 23/04/2015 passed in Company Petition No.23/2015 and connected matters, which was well within the knowledge of the department. However, notice under Section 148 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rules and also notifications and instructions. Upon the claim being sanctioned and particularly on the sub sequenttransfer memo issued and the Compliance Response Sheet submitted, the department cannot feign ignorance of the amalgamation order merely for the reason that no specific objection was raised by the petitioner on this aspect in the objections filed to the reasons recorded by the Assessing Officer. 12. In view of the proceedings initiated under Section 148 of the Act at the n th hour before the limitation getting lapsed on 31/03/2018, even if the matter is now remanded back to the Assessing Officer, it would be a futile exercise, since the defective notice issued under Section 148 of the Act, cannot be cured at this length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be deemed to be invalid merely by reason of any mistake, defect, or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. The jurisdiction assumed by the Assessing Officer to issue notice under Section 148 of the Act to non-existing company is substantive illegality and not the procedural violation of the nature adverted to in Section 292-B of the Act. The substantive defective notice issued against a non-existing company is not curable. On this ground alone, without adjudicating upon the other issues raised by the petitioner inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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