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TMI Blog2019 (7) TMI 1943X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Spice Enotainment delivered on 02.11.2017. In the case on hand it is undoubtedly the assessment was made by the Assessing Officer on SIPSPL the amalgamating company which was amalgamated with STSPL w.e.f 01.10.2011 and accordingly ceased to exist thereafter. Therefore, when the assessment was made on an non existing entity the said assessment is void ab-initio and nullity in the eye of law. Assessment framed against a non-existing entity goes to the root of the matter and it is not a procedural irregularity but a jurisdictional defect and there cannot be any assessment against a non-existing entity or a dead person. Therefore, the decision of the Hon'ble Supreme Court in the case of Pr.CIT v. Maruti Suzuki India Limited (supra) squarely applies to the facts of the assessee s case. Respectfully following the decision of the Hon'ble Supreme Court, we hold that the assessment made by the Assessing Officer in the name of the amalgamating company i.e. SIPSPL dated 24.01.2014 u/s. 143(3) r.w.s. 144C(13) of the Act for the A.Y.2009-10 is void ab-initio and bad in law. Hence the assessment order is a nullity in the eye of law and the same is quashed. The additional ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower Co. Ltd. v. CIT (supra) thus the additional ground is admitted. 5. Briefly stated, the facts are, by virtue of an order passed by the Hon'ble Bombay High Court on 26.08.2011 an order approving the scheme of amalgamation of M/s. Siemens Information Processing Services Pvt. Ltd., [hereinafter in short SIPSPL ], the assessee in this case, was amalgamated with M/s. Siemens Technology and Services Pvt. Ltd., [hereinafter in short STSPL ] w.e.f. 01.10.2011 and accordingly ceased to exist thereafter. The Assessing Officer passed order u/s.143(3) r.w.s. 144C(13) of the Act in the name of M/s. Siemens Information Processing Services Pvt. Ltd., [successor of M/s. Siemens Technology Services Pvt. Ltd.,] on 24.01.2014. Now it is the contention of the Ld.Counsel for the assessee that the erstwhile company namely SIPSPL ceased to exist on account of its merger with STSPL w.e.f. 01.10.2011 and consequently the Assessing Officer made an assessment on a non-existent entity. It is the submission of the Ld. Counsel for the assessee that the Assessing Officer proceeded to assess the income in the hands of the erstwhile company in spite of being intimated about the merger. The sequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased to exist and accordingly assessment being made in the name of non-existing entity is illegal and bad in law. Thus, it is submitted that the assessment made in the name of SIPSPL should be quashed and be regarded as void ab-initio. Reliance was placed on the following decisions: - (i). Jitendra Chandralal Navlani Anr v/s. Union of India through Joint Secretary Ors. (Writ Petition No. 1069 OF 2016 Bombay High Court) (ii). IPSOS Research Private Limited (formerly known as Synovate India Private Limited) Vs. Additional Commissioner of Income Tax-Circle 11(2) (formerly known as Synovate India Private Limited) and IPSOS Research Private Limited (formerly known as Synovate India Private Limited) Vs. Deputy Commissioner of Income Tax-Circle 10(1)(1) (ITA. No. 1177/Mum/2015: 1TA. No. 1517/Mum/2016 Bombay High Court) (iii). Commissioner Of Income Tax (C)-lI Vs. Micra India Pvt Ltd (1TA 441/2013: 1TA 444/2013: 1TA 445/2013: 1TA 446/2013: 1TA 452/2013: IT A 461/2013 New Delhi High Court) (iv). Commissioner of Income-tax. Central Circle, Bangalore Vs. Intel Technology India (P.) Ltd. (IT APPEAL NOS. 499 500 OF 2009 Karnataka High Court) (v). l.K. Agencies ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uccession took place, up to the date of succession . Ld. DR placed reliance in the case of Sky Light Hospitality LLP v. ACIT [92 taxmann.com 93 (SC)], CIT v. Shaw Wallace Distilleries Ltd. [386 ITR 14 (Calcutta)] and The Himalayan Drug Co. v. DCIT in IT(TP)A No. 807/Bang/2016 dated 21.06.2017. 10. We have heard the rival submissions, perused the orders of the authorities below. It is not in dispute that SIPSPL has been amalgamated with STSPL by virtue of an order pursuant to scheme of amalgamation by the Hon'ble Bombay High Court passed on 26.08.2011 and the merger is w.e.f 01.10.2011. It is not in dispute that the Assessing Officer was informed by the assessee by letter dated 21.12.2011 intimating the fact of amalgamation and merger of SIPSPL with M/s. Siemens Information Systems Limited [hereinafter in short SISL ] which was later changed to M/s. Siemens Technology and Services Pvt. Ltd. The change in the name was w.e.f 23.04.2012 even this fact was also informed to the Assessing Officer by the assessee by letter dated 20.06.2012. The letter dated 21.12.2011 submitted to the concerned Assessing Officer reads as under: The Deputy Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mating company (successor M/s. Siemens Technology and Services Pvt. Ltd.,) though in some of these orders it has been mentioned in brackets that SIPSPL is successor of STSPL surprisingly in all these orders the PAN of the amalgamating company i.e. AAFCS1164H has been mention and not the amalgamated company PAN which is AAACS9788E. From the above, it is clear that the Assessing Officer made assessment on 24.01.2014 u/s. 143(3) r.w.s. 144C(13) of the Act only in the name of amalgamating company i.e. SIPSPL though it was ceased w.e.f. 01.10.2011 in spite of intimating the amalgamation and merger of SIPSPL with SISL which was later changed to STSPL. 15. The Hon'ble Delhi High Court in the case of CIT v. Dimension Apparels Pvt. Ltd., in ITA. No. 327/2014, C.M.NO. 10527/2014 dated 08.07.2014 had considered a situation whether the provisions of section 292B of the Act could cure the technical defects and also the provisions of section 170(1) and 170(2) of the Act and the Hon'ble High Court considered various decision held as under: - 4 The revenue, in its appeal argues, first of all that by virtue of Sections 170(1) and 170(2) of the Income Tax Act, in cases of succession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mated company). 8. The Supreme Court, in Saraswati Industrial Syndicate (supra) held that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. (Emphasis Supplied) 9. With respect to the specific issue of assessment, in Vived Marketing Servicing Pvt. Ltd. No. (supra) the Court observed that: When the Assessing Officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies u/s 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessmsent order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. (Emphasis Supplied) 10. Vived Marketing Servicing Pvt. Ltd. (supra) also noted that Section 176 of the IT Act, which contains provisions pertaining to a discontinuation of business, does not apply to a case of amalgamation/dissolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved. 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rejected this argument, holding that it [becomes] incumbent upon the Income Tax Authorities to substitute the successor in place of the said dead person . Such a defect cannot be treated as procedural defect once it is found that assessment is framed in the name of nonexisting entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. (Emphasis Supplied) 21. In Spice (supra) the reason for the inapplicability of Section 292-B was additionally premised on the decision of the Punjab Haryana High Court in CIT v. Norton Motor, 275 ITR 595, that while Section 292B can cure technical defects, it cannot cure a jurisdictional defect in the assessment notice. In Spice (supra), therefore, this Court expressly classified the framing of assessment against a non-existing entity/person as a jurisdictional defect. This has been a consistent position. As early as 1960, in CIT v. Express Newspapers, 1960 (40) ITR 38 (Mad), the Madras High Court held that there cannot be an assessment of non-existent person The assessment in the instant case was made long after the Free Press Company was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee-SSS Limited much prior to the amalgamation order dated 1.4.2004 and as such, the proceedings would continue against the said company even after the amalgamation, especially when the successor company - M/s Intel Technology India Pvt. Ltd. had participated in the proceedings. Learned counsel for the appellant further submits that the department would be entitled to the benefit of Section 292(B) of the Income Tax Act. 6. On the other hand, learned counsel for the respondent has submitted that any proceeding against a non-existing company would be null and void, especially after the respondent/company (which had succeeded M/s SSS Limited) had given notice of amalgamation to the department on 29.6.2004. It is thus submitted that after the issuance of the demand notice, it was for the department to substitute the respondent company in the proceedings for assessment and by not having done so, the entire assessment proceedings would be null and void. In support of his submission, learned counsel for the respondent has placed reliance on a Division Bench decision of the Delhi High Court rendered in Spice Infotainment Ltd. v. CIT [IT Appeal Nos. 475 476 of 2011, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B. 14. The issue again cropped up before the Court in CIT Vs. Harjinder Kaur (2009) 222 CTR 254 (P H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings were null and void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application. 16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a dead person . 17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law in favour of the assessee and against the Revenue and allow these appeals. 18. We also observe that the appeal filed by the Revenue against this judgment of the Hon'ble Delhi High Court was dismissed by the Hon'ble Supreme Court on 02.11.2017 affirming the decision of the High Court wherein it has been held that framing of assessment against a non-existing entity goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect and therefore there cannot be any assessment against a dead person and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite manner in the hands of the Adhunik Technology Pvt. Ltd. Clearly they were notified about the development as the assessee was duty bound to. Despite that, the Revenue persisted in completing a separate assessment order in respect of an entity which was not in existence. 4. For these reasons, following the previous reasons, it is held that no question of law arises; the appeal is, therefore, dismissed. 20. Special Leave Petition filed by the department has been dismissed by the Hon'ble Supreme Court which is reported in 100 taxmann.com 330. 21. Hon'ble Delhi High Court in the case of Pr.CIT v. Maruti Suzuki India Limited (successor of Suzuki Powertrain India Limited) in ITA. No. 65 of 2017 held as under: - 3. On 24th January 2017, while admitting this appeal, this Court framed the following question of law: Did the ITAT misapply the provisions of Section 170 (2) of the Income Tax Act in the circumstances of the case, while concluding that the assessment order was not tenable for having been framed in the name 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction. 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 Ltd. v. CIT [1990] 186 ITR 278 (SC) and Spice Infotainment Ltd. v. CIT (2011) 247 CTR (Del) 500 wherein an identical question has been answered in favour of the Assessee and against the Revenue. Mr. Vohra points out that for the purposes of Section 170 (2) of the Act, two assessment orders will have to be passed: one in the name of MSIL itself for the AY in question and the other again in the name of MSIL indicating that the said assessment order is being passed under Section 170 (2) of the Act in respect of its tax liability as successor in interest of the Amalgamating company. 11.1 In Spice Infotainment (supra), the issue that arose was in the context of the AO h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 entity. 11.4 The Court in Spice Infotainment (supra) thereafter held as under: 11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 292B of the Act, the successor-ininterest is precluded from raising an objection if it has participated in the assessment proceedings was negative in Spice Infotainment (supra) where it was held: ...once it is found that the assessment is framed in the name of a non-existent entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292-B of the Act. 15. On the issue of participation, the Court CIT v. Dimensions Apparels (P) Ltd. (supra) observed: 22. On the last contention, i.e with respect to participation by the previous assessee, i.e the amalgamating company (which ceases to exist), again Spice (supra) is categorical; it was ruled on that occasion that such participation by the amalgamated company in proceedings did not cure the defect, because there can be no estoppel in law. Vived Marketing Servicing Pvt. Ltd., (supra) had also reached the same conclusion. 16. The legal position having been made abundantly clear in the above decisions, the Court has no hesitation in answering the question framed in the negative, i.e. in favour of the Assessee and against the Revenue. 22. Very rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson . 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. From the above extract, it would emerge that if an assessment order had been passed on the resulting company, it would not be void. Hence, in the present case, the issuance of a notice under Section 143 (2) to SPIL cannot be considered to be a jurisdictional effect when the assessment order categorically mentions the names of the amalgamated and amalgamating companies; (vi) The decision of the Delhi High Court in Skylight Hospitality LLP v Assistant Commissioner of Income Tax, Circle-28(1), New Delhi12 ( Skylight Hospitality LLP ), which was confirmed by this Court on 6 April 201813 dealt with a situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned, the amalgamated company is dissolved without winding up, in terms of Section 394 of the Companies Act 1956. The amalgamating company ceases to exist in the eyes of law [Saraswati Industrial Syndicate Ltd. v CIT ( Saraswati Industrial Syndicate Ltd. )]; (ii) The amalgamating company cannot thereafter be regarded as a person in terms of Section 2(31) of the Act 1961 against whom assessment proceedings can be initiated and an assessment order passed; (iii) The jurisdictional notice under Section 143(2) of the Act, pursuant to which the assessing officer assumed jurisdiction to make an assessment was issued in the name of SPIL, a non-existent entity, and was invalid. Hence the initiation of assessment proceedings against a non-existent entity was void ab initio. It has been held in the following decisions that, if a statutory notice is issued in the name of a non-existent entity, the entire assessment would be a nullity in the eyes of law: - CIT v Intel Technology India (P) Ltd - PCIT v Nokia Solutions Network India (P) Ltd. ( Nokia Solutions ) - Spice Entertainment - Similarly, a notice to the amalgamating company, subsequent to the ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedent under Article 141. (vi) The Respondent's case is squarely covered by the decision of this Court in its own case for the immediately preceding year: The Delhi High Court by its judgment reported in Maruti Suzuki held in favour of the Respondent by following the judgment in the case of Spice Entertainment. Further, the Revenue's SLP was dismissed by this Court on 16 July 2018 in SLP(C) D.No.14106/2018, following the judgment in Spice Entertainment. Relying on the decision of this Hon'ble Court, in the following decisions, assessments framed in the case of a non-existent entity (the amalgamating company) have been held to be non-est in the eyes of law: - CIT v BMA Capfin Ltd. (Revenue's SLP dismissed against the same vide order dated 19 November 2018 passed in SLP(C) Diary No.40486 of 2018). - Nokia Solutions (vii) The judgment of the Delhi High Court in Skylight Hospitality LLP is distinguishable and is not applicable to the facts of the present case: The judgment was rendered on its own peculiar facts. In that case, the tax evasion petition mentioned the factum of conversion of the company into a Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d creditors are varied, it amounts to reconstruction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer 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: Halsbury's Laws of England (4th edition volume 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an 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. 12. Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Following the decision in Spice Entertainment, the Delhi High Court quashed assessment orders which were framed in the name of the amalgamating company in: (i) Dimension Apparels; (ii) Micron Steels; and (iii) Micra India. 21. In Dimension Apparels, a Division Bench of the Delhi High Court affirmed the quashing of an assessment order dated 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o law, having been completed against a non-existent company. 24. A batch of Civil Appeals was filed before this Court against the decisions of the Delhi High Court, the lead appeal being Spice Enfotainment. On 2 November 2017, a Bench of this Court consisting of Hon ble Mr Justice Rohinton Fali Nariman and Hon ble Mr Justice Sanjay Kishan Kaul dismissed the Civil Appeals and tagged Special Leave Petitions in terms of the following order : Delay condoned. Heard the learned Senior Counsel appearing for the parties. We do not find any reason to interfere with the impugned judgment(s) passed by the High Court. In view of this, we find no merit in the appeals and special leave petitions. Accordingly, the appeals and special leave petitions are dismissed. 25. The doctrine of merger results in the settled legal position that the judgment of the Delhi High Court stands affirmed by the above decision in the Civil Appeals. 26. The order of assessment in the case of the respondent for AY 2011-12 was set aside on the same ground. This resulted in a Special Leave Petition by the Principal Commissioner of Income Tax 6 Delhi. The Special Leave Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract that it was in the peculiar facts of the case that this Court indicated its agreement that the wrong name given in the notice was merely a clerical error, capable of being corrected under Section 292B. The peculiar facts of Skylight Hospitality emerge from the decision of the Delhi High Court. Skylight Hospitality, an LLP, had taken over on 13 May 2016 and acquired the rights and liabilities of Skylight Hospitality Pvt. Ltd upon conversion under the Limited Liability Partnership Act 200835. It instituted writ proceedings for challenging a notice under Sections 147/148 of the Act 1961 dated 30 March 2017 for AY 2010-2011. The reasons to believe made a reference to a tax evasion report received from the investigation unit of the income tax department. The facts were ascertained by the investigation unit. The reasons to believe referred to the assessment order for AY 2013-2014 and the findings recorded in it. Though the notice under Sections 147/148 was issued in the name of Skylight Hospitality Pvt. Ltd. (which had ceased to exist upon conversion into an LLP), there was, as the Delhi High Court held substantial and affirmative material and evidence on record to show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Companies Act. Order was in the name of non-existing person and hence void and illegal. 29. From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Courts in: (i) Rajender Kumar Sehgal; (ii) Chandreshbhai Jayantibhai Patel; and (iii) Alamelu Veerappan. 30. There is no conflict between the decisions of this Court in Spice Enfotainment (dated 2 November 2017)36 and in Skylight Hospitality LLP (dated 6 April 201837). 31. Mr Zoheb Hossain, learned Counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- (a) the predecessor shall be assesseed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assesseed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous 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, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v CIT39 holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice: the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v CIT40 ( Maharaja of Patiala ). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as His Highness late Maharaja of Patiala . The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. 23. As could be seen from the above the Hon'ble Supreme Court held that 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. It has been held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Hon'ble Supreme Court also observed that participation in the proceedings by the assessee in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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