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TMI Blog2023 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice of the Assessing Officer, despite which the proceedings are continued and an order of assessment passed in the name of a non-existing company, the order of assessment would not merely be a procedural defect but would render it void. It was also held that participation in the proceedings by the amalgamated company would have no effect since there could be no estoppel against law. Not only had Morgan Construction amalgamated with the petitioner but the factum of such amalgamation had been intimated to the Assessing Officer on 17th September 2012. The company post amalgamation having ceased to exist, the jurisdictional requirement of service of notice as envisaged under section 148 of the Act could never have been fulfilled ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reopening of the assessment by the Petitioner. One of the main objection raised was that M/s.Morgan Construction had ceased to exist with effect from 1st October 2011 on account of its merger with Siemens Limited, the Petitioner herein. The Assessing Officer was reminded that the factum of merger of the said company with the Petitioner had been intimated vide communication dated 17th September 2012, and, therefore, it was urged that the jurisdictional notice under Section 148 of the Act having been issued against a non-existing entity was, thus, unsustainable in law. 4. Objections raised by the Petitioner were rejected by the Assessing Officer on the following grounds : (i) that the reopening was valid and justified as the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Limited [2019] 107 taxmann.com 375 (SC). 6. The stand of the Respondents, on the other hand, is nothing but a reiteration of the stand of the revenue as is reflected in the Order dated 18th January 2016 disposing of the objections raised by the assessee to the issue of the notice under Section 148. 7. Mr. Suresh Kumar, learned Counsel appearing for the Revenue tried to urge although feebly that mentioning the name of M/s. Morgan Construction as an assessee in the notice under Section 148 even if issued against a non-existing company could not be said to be invalid in law in terms of Section 292B of the Act. Reliance in this regard was placed upon the judgment in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 company or one is absorbed into one or blended with another, the amalgamating company loses its entity. 10. In the case of Spice Entertainment Ltd. V/s. CST 2012 (280) ELT 43 (Delhi) , a Division Bench of the Delhi High Court held that once the factum of amalgamation of a company had been brought to the notice of the Assessing Officer, despite which the proceedings are continued and an order of assessment passed in the name of a non-existing company, the order of assessment would not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Entertainment. 11. The contention of Mr. Kumar is that notice issued under section 148 in the name of a non-existing company, i.e., M/s. Morgan Construction could be treated to be merely a clerical error capable of being corrected under section 292 B of the Act. Reliance was also placed upon the judgment of the Apex Court in in Sky Light Hospitality LLP (supra). Section 292B envisages inter alia that no return of income, assessment, notice, summons or other proceeding, shall be deemed invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 made a reference only to the said company and did not make any reference to the petitioner, i.e., Siemens Limited. Not only this, even the approval granted by the Joint Commissioner of Income Tax, Mumbai, on 30th March 2015, contained the name of M/s. Morgan Construction. The facts of the present case are, therefore, quite different from the one which were before the Court in Sky Light Hospitality LLP (supra) and, therefore, there would be no basis to apply the provisions of section 292B of the Act to the facts and circumstances of the present case, based upon, the aforementioned decision. 13. Applying the ratio of the aforementioned judgments to the facts of the present case, it can be seen that not only had Morgan Construct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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