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TMI Blog2021 (8) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment Year 2011-2012 in the name of petitioner for re-opening the assessment of Niraj Realtors We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is not acceptable to this Court - Decided in favour of assessee. - WRIT PETITION NO.2742 OF 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 brought to the notice of respondent no.1 that the notice issued under Section 148 of the Act was bad in law as the same was issued in the name of a non-existent person. In the objection, copy whereof is at Exhibit H to the petition, petitioner had also listed various judicial pronouncements on which they were relying upon to make their submission that the notice issued was bad in law. Apart from that, petitioner had also raised various other objections with which we do not propose to go into at this stage because the Court felt, if the Court comes to a conclusion that the notice, that was issued under Section 148 of the Act, was bad in law, the same having been issued in the name of non-existent person, the other objections would only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Shares Pvt. Ltd. and not M/s. Alok Knit Exports Pvt. Ltd. The assessee company had merged recently and the information is prior to the date of merger and hence the notice has been issued in the name of M/s. Niraj Realtors and Shares Pvt. Ltd. Now that the assessee company has got merged with M/s. Alok Knit Exports Pvt. Ltd., it is pertinent to mention here that with the acquisition and the corresponding due diligence, i.e., making realization of a merger or acquisition, after having identified and evaluating, all aspects with respect to opting of an asset or a liability transaction, a full takeover viz a phased merger takes place which is bylaw the accounting principle followed under merger or acquisition and that all assets and liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recently with petitioner and when merger takes place, all assets and liabilities are taken care of by the new company and any liability including income tax liability arising out of any previous year is undoubtedly the liability to be taken care of by the new company. Notwithstanding this conclusion and being aware that Niraj Realtors had merged into petitioner and for the Assessment Year 2011-2012 respondent no.1 having issued notice under Section 148 of the Act to petitioner for the dues of Niraj Realtors, still respondent no.1 persisted with issuing the notice for the Assessment Year 2012-2013 under Section 148 of the Act to Niraj Realtors, a non-existent company. 5. Mr. Mohanty appearing for respondents submitted that it was a human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Special Leave Petition were the peculiar facts of that case. The Apex Court has reiterated the settled position that the basis on which jurisdiction is invoked is under Section 148 of the Act and when such jurisdiction was invoked on the basis of something which was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation, the notice is bad in law. The Apex Court has held as under : In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee of this charge. 8. The stand now taken in the affidavit in reply and submissions of Mr. Mohanty is nothing but an afterthought by respondent after having committed a fundamental error. We would have expected respondent no.1 to have atleast applied his mind and looked for documents which were already on file to see whether Niraj Realtors existed before issuing notice under Section 148 of the Act. Respondents records would have indicated that Niraj Realtors ceased to exist and his predecessor/colleague has issued notice for the Assessment Year 2011-2012 alongwith the reasoning in the name of petitioner. 9. Therefore, the stand of respondent today that it was an error which could be corrected under Section 292B of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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