9911796707
TMI Blog2024 (6) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings have occurred and is finally dissolved under Section 59 (8) of the IBC Act. In the instant case, the order passed by the NCLT, Bangalore, dated 15.02.2023 is sufficient to come to the unmistakable conclusion that the petitioner company had stood dissolved completely in terms of Section 59 (8) of the IBC. Consequently, the petitioner company who is presently represented by the official liquidator for the limited purpose of the present petition ceased to exist for all other purpose including imposing or fastening any liability upon the petitioner-dissolved company. Under these circumstances, the impugned show cause notice and adjudication order are consequently without jurisdiction or authority of law and the same deserves to be quashed. In the instant case, the show cause notice undisputedly issued subsequently to dissolution and there was no determination of the tax liability of the company which was never in existence at the time of issuance of the show cause notice. In other words, at the time of adjudication order, there was no company in existence for the purpose of determination of the tax, interest or penalty and consequently, the question of invoking Section 88 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Respondent No. 4, enclosed as Annexure-C2, as ultra-vires Section 168A of CGST Act, 2017 for the reasons stated in the grounds. (G) Issue a writ of certiorari or any other writ or direction or order to declare Notification No. 06/2023 dated: 06.04.2023, issued by Respondent No. 3, enclosed as Annexure-C3, as ultra-vires Section 168A of KGST Act, 2017 for the reasons stated in the grounds. (H) Grant such other consequential reliefs, as this Honourable High Court may think fit including the cost of this writ petition. (I) Writ or direction in the nature of a writ of certiorari or any other writ or direction to quash the order dated: 27.12.2023 enclosed as Annexure-AA6 issued by the Respondent No. 1 as being violative of principles of natural justice and being violative of Article 14 of the Constitution. 2. Heard lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad - (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. Thermo Cables Ltd. Vs Commissioner of Cus. C. Ex., Hyderabad - 2013(292) E.L.T. 412 (Tri- Bang.); 11. Union of India Vs. Kamalakshi Finance Corporation Limited - 1991 (55) ELT 433 (SC;) 12. Deputy Commissioner of IT Vs. Pepsi Foods Ltd - (2021) 433 ITR 295 (SC); 13. Eicher Motors Vs Union of India - 1999 (106) ELT 3 (SC); 14. Collector of C.Ex., Vs Dai Ichi Karkaria Ltd., - 1999 (112) ELT 353 (SC). 4. Per contra, learned counsel for the respondents revenue submits that there is no merit in the petition and the same is liable to be dismissed. Alternatively, it is submitted that even assuming that the petitioner company stood dissolved w.e.f. 15.02.2023, subsequent to which, the impugned show cause notice was issued, the respondents would be entitled to proceed against the erstwhile Directors of the petitioner-company by virtue of Section 88 (3) of the CGST Act, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Division Bench held that initiating assessment against a non-existing / dead person is not merely a procedural defect which can be cured but a jurisdictional defect. In other words, the Tax authorities do not have the jurisdiction to initiate tax assessment against a non-existing entity. 9. The Apex Court in Pr. Commissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Ltd - 2019 SCC Online SC 928, dealt with a similar issue wherein a notice under Section 143 (2), Income Tax Act was issued to a non-existing company. The Hon ble Supreme Court reiterating the legal principles laid down in Spice Entertainment (supra), held as under 39. In the present case, 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. The basis on which jurisdiction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 the Registrar of Companies in pursuance of the same. As stated supra, the impugned show cause notice is undisputedly issued subsequent to 15.02.2023 after the company had stood dissolved and became non-existent in the eye of law. 13. In the instant case, the order passed by the NCLT, Bangalore, dated 15.02.2023 is sufficient to come to the unmistakable conclusion that the petitioner company had stood dissolved completely in terms of Section 59 (8) of the IBC. Consequently, the petitioner company who is presently represented by the official liquidator for the limited purpose of the present petition ceased to exist for all other purpose including imposing or fastening any liability upon the petitioner-dissolved company. Under these circumstances, the impugned show cause notice and adjudication order are consequently without jurisdiction or authority of law and the same deserves to be quashed. 14. Insofar as the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability 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 determined under this Act on the company for any period, whether before or in the course of or after its liquidation, cannot be recovered, then every person who was a director of such company at any time during the period for which the tax was due shall, jointly and severally, be liable for the payment of such tax, interest or penalty, unless he proves to the satisfaction of the Commissioner that such non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. 16. A plain reading of the aforesaid provision will indicate that the same contemplates as under:- (a) There has to be a private company; (b) The company is ordered to be wound up; (c) There has to be determination tax, interest or penalty on the company; (d) The said determination should be for a period before order or in the course of or after its liquidation; (e) After such determination of a company du ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
