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TMI Blog2023 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, the notices/order has been issued against a non existent / amalgamated entity. Hence, the objection regarding availability of alternative remedy of appeal is overruled . Secondly, in the present case, it is clear that the reassessment proceedings have been initiated against Company which had indeed ceased to exist with effect from 01.04.2017 based upon the scheme of amalgamation having been approved on 17.04.2018. Apex Court in case of Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki [ 2019 (7) TMI 1449 - SUPREME COURT] 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 amalgamating entity ceasing to exist, it cannot be regarded as a person under sub section (31) of Section 2 of the Act against whom assessment proceedings can be initiated. The participation by the amalgamated company in the proceedings would be of no effect as there is not estoppel against law. In view of the settled law, from the appointed date, under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the approval, notice dated 31.01.2018 (Annexure P/3) inviting objections / suggestions to the amalgamation was also sent to the Income Tax Officer / Assistant Commissioner, Indore/respondent No.1, however, no objections were given by the respondent. The scheme approved on 17.04.2018, was to take effect from 01.04.2017. Pursuant to the approval, the Registrar of Companies also issued fresh certificates of registration dated 17.04.2018 stating that (JBBPL) had been amalgamated into (PATH). 5. Despite being aware of the aforesaid fact, a show-cause notice dated 15.03.2022 under Section 148A was issued in the name of (JBPPL) seeking to reopen the assessment for (JBPPL) for the assessment year 2018-19 on the ground that the Assessing Officer had reasons to believe that the income chargeable to tax for the said assessment year 2018-19 has escaped assessment within the meaning of Section 147 of the Act. It was stated that as per the information available with the IT department, (JBPPL) had engaged in certain transaction in the A.Y. 2018-19 and had not filed its income tax return for the same. Upon receipt of the show-cause notice, reply was submitted by the petitioner informing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 Eng- land, 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.'' 7. It is a settled position in law that assessment/re-assessment proceedings cannot be initiated against amalgamated entities as they cease to remain in existence by virtue of amalgamation. Learned Senior Counsel placed reliance on the judgment of the Supreme Court in case Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki (India) Ltd. (2020) 18 SCC 331 wherein it is held that, upon the amalgamation, the company ceases to exist, it cannot be regarded as a person under Section 2(31) of the Act against whom assessment proceedings can be initiated or an order of assessment passed. 8. It is further contended that respondent No.1 faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 246 of the Income Tax Act. He also referred to the judgment of the Apex Court in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai Ors (1998) 8 SCC 1 wherein it is held that the alternative remedy is not a bar, at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the virus of the Act is challenged. 11. Heard learned counsel for the parties. 12. So far as argument raised by counsel for the respondent regarding availability of alternative remedy of appeal, is concerned, it is well settled that when the order is without jurisdiction and appears to be passed in blatant exercise of powers and the same is against the principles of natural justice, then the question of availability of alternative remedy does not come in the way for exercising jurisdiction under Article 226 of the Constitution of India. In the present case, the notices/order has been issued against a non existent / amalgamated entity. Hence, the objection regarding availability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferee company. Mere activation of PAN number may not give a right to the respondents to issue notice to a non-existent entity after appointed date i.e. 01.04.2017. Admittedly, the order under Section 148A(d) of the Income Tax Act has been passed by the respondents against a non-existent entity. Therefore, the impugned notices and orders are bad in the eyes of law. 17. Accordingly, the notices, orders and all consequential proceedings in the name of amalgamated company/assessee are null and void and consequently, the impugned notice dated 15.03.2022 issued u/s 148A of the Act, order dated 31.03.2022 passed u/s 148A(d) of the Act and notice dated 31.03.2022 issued u/s 148 of the Act in W.P.No. 11190/2022 ; notice dated 02.03.2023 issued u/s 148A of the Act, order dated 22.03.2023 passed u/s 148A(d) of the Act and notice dated 22.03.2023 issued u/s 148 of the Act in W.P.No. 13915/2023 ; notice dated 26.02.2023 issued u/s 148A of the Act, order dated 29.03.2023 passed u/s 148A(d) of the Act and notice dated 29.03.2023 issued u/s 148 of the Act in W.P.No. 10676/2023 are quashed and set aside and all actions in furtherance thereto are prohibited. Resultantly, the petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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