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TMI Blog2021 (4) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with section 147 of the Act in the name of M/s. Tecnovate Esolutions Private Limited. 3. Mr. J. D. Mistri, learned senior advocate for the petitioner draws our attention to the factual events that, M/s. Tecnovate Esolutions Pvt. Ltd. (for short "TSPL") was a registered company engaged in business of providing back office support services/ remote data entry services for customers in and outside India. Under order dated 11th February, 2011, a scheme of amalgamation of aforesaid company with M/s. Intelnet Global Services Pvt. Ltd. , was approved with effect from 1st April, 2010 and since then the aforesaid TSPL ceased to exist. Subsequently, M/s. Intelenet Global Services Pvt. Ltd. amalgamated with M/s. Serco BPO Pvt. Ltd. Thereafter there had been change in the name with effect from 11th January, 2016 from M/s. Serco BPO Pvt. Ltd to M/s. Intelnet Global Services Pvt. Ltd. There had been a further change in the name from M/s. Intelenet Global Services Pvt. Ltd to Teleperformance Global Services Pvt. Ltd. (TGSPL) with effect from 12th February, 2019. He submits that as such, petitioner is successor of M/s. TecnovateEsolutions Pvt. Ltd. 4. It has been referred to that post amalgam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 2012-13. 7. It is contended that without considering the reply or even referring to the telephonic conservation of petitioner with respondent No. 1, assessment order dated 31st December, 2019 for the assessment year 2012-13, under section 144 read with section 147 of the Act, in the name of TSPL computing total income at Rs. 14,50, 95,452/- was passed. It has been referred to that respondent No. 1 purports to allege that petitioner had neither filed response to the show-cause notice nor filed returns of income for relevant assessment year. As per 26AS statement, taxes have been deducted with respect to transactions amounting to Rs. 14.51 Crores, hence, the same is treated as taxable under the provisions of the Act. 8. Petitioner on realising that assessment order dated 31st December, 2019 had been passed against M/s. Tecnovate Esolutions Pvt. Ltd., the petitioner is constrained to file writ petition, challenging notice dated 30th March, 2019 and assessment order dated 31st December, 2019. 9. Mr. Mistri, learned senior counsel submits that while the facts are indisputable, impugned notice dated 30th March, 2019 and impugned order dated 31st December, 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponsible to reply the notices including show-cause notice issued on 4th December, 2019 through ITBA system of the department and the notices and orders were dispatched to the concerned assessee on its email id which is registered with the department for receiving such communications. It had been realized that the PAN of the entity TSPL had been apparently active in the database of the department. It is being referred to that petitioner has appellate forum to approach against the order passed. It is further being referred to that jurisdiction over the company TSPL is with the Circle 25(1), Delhi. Thus, it is contended that petitioner is not entitled to any of the relief claimed, as such, petition is liable to be dismissed. 12. Learned counsel Mr. Walve for respondents vehemently submits that jurisdictional issue would arise in the petition since the order has been passed by the authority at Delhi. 13. Mr. J. D. Mistri, learned senior advocate lays particular emphasis on clause (2) of Article 226 of India, which reads as under: "(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for petitioner has arisen in Mumbai. 17. Learned senior counsel also refers to a decision of this court dated 7.3.2011 in the case of Wills India Insurance Brokers Pvt. Ltd. Vs. Insurance Regulatory and Development Authority Writ Petition No. 2468 of 2010 wherein it has been observed that part of cause of action has arisen within territorial jurisdiction of this court. Referring to clause (2) of Article 226 of the Constitution, the court observed that the petitioner's registered office is located at Mumbai, it operates business from Mumbai. Since office of respondent No. 1 was located at Hyderabad, renewal application was required to be preferred at Hyderabad, it would not be a case that no part of cause of action can be said to have arisen within the territorial jurisdiction of the Mumbai court. The case of Navinchandra Majithia Vs. State of Maharashtra (2007) 7 SCC 640 had also been referred to wherein it has been held that high court has jurisdiction if any part of the cause arisen within territorial limits of its jurisdiction, though the seat of government or authority or residence of person against whom direction, order or writ is sought to be issued is not within the terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns with respondent bank in respect of disinvestment of equity capital of the bank at place 'S'. Appellant was situated at place 'C'. It was contended that while negotiations were held between appellant and respondent at the place 'S', yet letters of proposal and acceptance and also of rejection were communicated at the place 'C'. Writ petition was filed against the rejection by appellant company had been dismissed by the high court at 'C' for want of territorial jurisdiction and in appeal therefrom, the supreme court had considered that it is not a case where essential, integral or material facts so as to constitute a part of 'cause of action' within the meaning of Article 226(2) of the Constitution of India, in the high court at place 'C'. 19. In the present case, it is seen there is acceptance in reply on behalf of respondents that petitioner is a successor company of erstwhile M/s. Tecnovate Esolutions Pvt. Ltd. and successor has its registered office at Mumbai and is stationed at Mumbai carrying in business. After impugned notice dated 30th March, 2019, correspondence from the petitioner's side ensued from September, 2019 onwards has not been disputed. It would not be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012. It has been observed that assessment order passed for the assessment year 2012-13 in the name of non-existing entity is a substantive illegality and would not be procedural violation of Section 292 (b) of the Act. The Supreme Court in its aforesaid decision, has quoted an extract from its decision in Saraswati Industrial Syndicate Ltd. Vs. CIT (1990) 186 ITR 278 (SC). The Supreme Court has also referred to decision of Delhi high court in the case of CIT Vs. Spice Enfotainment Ltd. (2018) 12 ITR-OL 134 (SC) and observed that in its decision Delhi high court had held that assessment order passed against non-existing company would be void. Such defect cannot be treated as procedural defect and mere participation of appellant would be of no effect as there is no estoppel against law. Such a defect cannot be cured by invoking provisions under section 292B. The Supreme Court had also taken note of decision in Spice Entertainment (supra) was followed by Delhi high court in matters, viz. CIT Vs. Dimensions Apparels (P.) Ltd. (2015) 370 ITR 288, CIT Vs. Micron Steels (P) Ltd. (2015) 59 taxmann.com 470/233 Taxman 120/372 ITR 386 (Del.) (Mag.); CIT Vs. Miscra India (P). Ltd. (2015) 57 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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