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TMI Blog2024 (6) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... it of declaration or any other writ or direction or order to declare that the provisions of Clause (iii) to Section 140 (1) of the CGST Act enclosed as Annexure-B as unconstitutional for the reasons specified in the grounds. (c) In the alternative, this Hon'ble Court may " read down" the wording contained in Clause (iii) to Section 140 (1) of CGST Act so as to allow the carry forward of Cenvat Credit as declared in Tran-1 considering the express provisions of Rule 6 (6) (vii) of Cenvat Credit Rules, 2004. (D) Issue a writ of Certiorari or any other writ or direction or order to declare Notification No. 13/2022-CT dated: 05.07.2022, issued by Respondent No. 4, enclosed as Annexure-C, as ultra-vires Section 168A of CGST Act, 2017 for the reasons stated in the grounds. (E) Issue a writ of certiorari or any other writ or direction or order to declare Notification No. 08/2022 dated: 12.07.2022, issued by Respondent No. 3, enclosed as Annexure-C1, as ultra-vires Section 168A of KGST Act, 2017 for the reasons stated in the grounds. (F) Issue a writ of certiorari or any other writ or direction or order to declare Notification No. 9/2023-CT dated: 31 March 2023, issued by Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd passing of the adjudication order, the impugned show cause notice and adjudication order are void, non-est and nullity in the eye of law and the same deserves to be quashed. In support of his contentions, learned Senior counsel has placed reliance upon the following decisions:- 1. Spice Entrainment Ltd, Vs. Commissioner of Service Tax-2012 (208) E.L.T 43 (Del.); 2. Pr. Commissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Ltd -2019 SCC Online SC 928; 3. Saraswati Industrial Syndicate Limited Vs. Commissioner of Income Tax - 1990 (9) TMI 1-SC; 4. Gayathri Microns Ltd. Versus Asst Commissioner of IT - (2020) 424 ITR 288 (Guj); 5. M/s. Mudhra Ltd. Vs. Asst. Commissioner of IT, Bengaluru & Others- 2020 (3) TMI 689- Karnataka High Court; 6. Kunvarji Fincorp Private Limited Vs. Deputy Commissioner of IT Circle 2(1) (1), Ahmedabad - (2023) 455 ITR 419 (Guj); 7. C.I.T. Vs. Sony Mobile Communication Ind. Pvt Ltd - 2023 (2) TMI Delhi High Court; 8. Commissioner of C.Ex., Vs. Bharat Heavy Electrical Ltd - 2015 (329) E.L.T. 893 (Tri-Del.); 9. Areva T & D India Ltd., Vs. Commissioner of C. Ex., (LTU), Chennai - 2013 (296) E.L.T. 106 (Tri.- Chennai); 10. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad High Court held that the issue of notice under Section 148 of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent 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". 8. The Hon'ble Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those principles in neither expedient nor desirable." 10. On perusal of the aforementioned judgements would indicate that a company would cease to exist after an amalgamation has occurred and tax assessment cannot be initiated against a non-existent company. Similarly, a company would cease to exist after the voluntary winding up proceedings have occurred and is finally dissolved under Section 59 (8) of the IBC Act. Therefore, applying the broader principles laid down by the Apex Court in Maruti Suzuki's case (supra), tax assessment under the CGST Act cannot be initiated against non-existent company which was dissolved under Section 59 (8) of the IBC Act. 12. A perusal of the material on record will indicate that the GST registration of the petitioner stood cancelled w.e.f. 30.09.2020 as evident from Annexure-K dated 20.11.2020 which was issued pursuant to the application for cancellation dated 04.11.2020 submitted by the petitioner. It is also relevant to state that the documents relating to the proceedings before the NCLT, Bangalore, will indicate that the final dissolution order was passed by the NCLT on 15.02.2023 and the status of the company was shown to be dissolved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act) and that the Commissioner shall, after making such inquiry or calling for such information as he may deem fit, notify the liquidator within three months from the date on which he receives intimation of the appointment of the liquidator, the amount which in the opinion of the Commissioner would be sufficient to provide for any tax, interest or penalty which is then, or is likely thereafter to become, payable by the company. In the instant petition, it is not the case of the respondent that the Commissioner (as defined under the CGST Act) has issued any such demand. Further, there is no pleading or material on record regarding compliance with Section 88 (1) and 88 (2) of the said Act. If the Commissioner under the CGST Act had notice under Section 88 (1) of the said Act and if he / she has not issued any notice to the liquidator under Section 88 (2), it may not be permissible for the Commissioner to seek to adjudicate the tax liability against the directors of the Company by issuing a demand to the Company which is non-existent in the eye of law. Section 88 (3) of the CGST Act reads as under: "88 (3) When any private company is wound up and any tax, interest or penalty deter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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