9911796707
TMI Blog2023 (2) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the notice, which is impugned in the instant case is of March 2021, after three years of intimation. We could notice that the notice is issued by the Officer, Circle 4(1)(1), Ahmedabad whereas, the intimation under Section-142 was also issued by the Officer, Circle 4(1)(1), Ahmedabad. The show-cause notices issued by the respondents are quashed and set aside with consequential reliefs. This could not in any manner preclude the respondents to initiate the action against the present petitioners in accordance with law. Department has now made an advancement with the use of employment of technologies advance. The assessment is also faceless and if return of income is to be filed, is also in e-mode, the entire materials were available with the officer concerned in e-mode and therefore, lack of inter-departmental co-ordination or nonapplication of mind to the materials already available with the department, is hardly be a ground for the Court to hold nonservice of the intimation. - HONOURABLE THE CHIEF JUSTICE (DESIGNATE) MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT Appearance: For the Petitioner(s) No. 1: Mr B.S. Soparkar (6851) Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just and proper be granted in the interest of justice; (d) to provide for the cost of this petition. 4. Heard learned advocate Mr. Bandish Soparkar assisted by learned advocate Mr. Anjaria for the petitioner - assessee and learned standing counsel Ms. Maithili D. Mehta for the respondents. 5. It is urged before this Court that this group of other such matters in relation to the another company Kunvarji Fincorp Pvt. Ltd. for other assessment years have been decided in Special Civil Application No.935 of 2022 and allied matters on 06.02.2023 and on the reasoning mutatis mutandis applied to case of the present matter, where the Court has referred order passed in Special Civil Application No.903 of 2022 dated 16.01.2023 and reproduced relevant portion as under:- 10. Noticing thus the submission of both the sides and the materials on record, it is not requiring much of debate that in the instant case, this Court on 05.08.2016 after following the requisite procedure which also includes giving of notice to the Income-tax Department, has chosen to decide the plea of amalgamation and approved the Scheme of Amalgamation in the interest of shareholders, creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited for reopening the assessment on the ground that the respondent has reason to believe that income chargeable to tax for the assessment year 2012-13 has escaped the assessment within the meaning of section 147 of the Act. 9. The controversy in the present petition, is no longer res integra. The Apex Court in the case of Principal Commissioner of Income Tax vs. Maruti Suzuki India Limited (supra), in paragraph 33, has categorically held that if the company has ceased to exist as a result of the approved scheme of amalgamation then in that case, the jurisdictional notice issued in its name would be fundamentally illegal and without jurisdiction. It is also held that upon the amalgamating entity ceasing to exist, it cannot be regarded as a person under subsection (31) of section 2 of the Act; against whom assessment proceedings can be initiated. The Apex Court has further held that participation by the amalgamated company in the proceedings would be of no effect as there is no estoppel against law. 10. Similarly, this court, in the judgment in the case of Dharamnath Shares and Services (P) Ltd. (supra) while referring to its earlier decision in the case of Khurana Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specific amounts surrendered by MRPL and that too, after considering the special auditor s report, bringing specific amounts to tax in the search assessment order. 14. All these according to the Court indicated that the order adopted a particular method of expressing the liability and it opined that the conduct of the assessee commencing from the date the search took place, and before all forums, reflected that it consistently held itself out as the assessee. It was held that the corporate death of an entity upon amalgamation per-se invalidate the assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, but, would depend on the terms of the amalgamation and the facts of each case. In light of this, the order of the High Court was not sustained and as the appeal of the revenue against the order of the Commissioner was not heard on merits, the Court had restored the matter on the file of Tribunal. While so holding the Court had taken note of decision of Principal CIT Vs. Maruti Suzuki Ltd. to hold thus:- 31. In Maruti Suzuki (supra), the scheme of amalgamation was approved on 29.01.2013 w.e.f. 01.04.2012, the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving those judgments, was also noticed. Yet, the legislative change, by way of introduction of Section 2(1A), defining amalgamation was not taken into account. Further, the tax treatment in the various provisions of the Act were not brought to the notice of this court, in the previous decisions. 33. There is no doubt that MRPL amalgamated with MIPL and ceased to exist thereafter; this is an established fact and not in contention. The respondent has relied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in the name of the amalgamating company is void and illegal. The facts of present case, however, can be distinguished from the facts in Spice and Maruti Suzuki on the following bases. 15. It is to be noticed that the Court specifically had held that the MRPL amalgamated with MIPL and ceased to exist thereafter. The contention of the respondent that the notice issued in the name of amalgamating company being void and illegal relying on the Spice and Maruti Suzuki (supra) was not sustained only on the robot facts which had been presented before this Court holding that can be distinguished from the facts existed in those matters. 16. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
