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TMI Blog2024 (7) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... an and Mr. Venkat Narayanan for M/s.Subbaraya Aiyar Padmanaban For the Respondents : Mr. V. Mahalingam Standing Counsel ORDER The writ petition is filed challenging the impugned order on the limited ground that the impugned order of assessment has been made in the name of Pharmazell Vizag Pvt. Ltd., a company not in existence when the impugned order dated 29.06.2021 came to be passed purportedly under Section 143(3) read with 144C read with 144B of the Act. 2. It is submitted by the learned counsel for the petitioner that Pharmazell Vizag Pvt. Ltd. which was in existence during the year 2017-18 stood amalgamated with Pharmazell (India) Pvt. Ltd. with effect from 01.07.2018 vide order dated 21.02.2020 of the NCLT, Chennai. The above fact was brought to the notice of the respondent authority by the petitioner vide email dated 22.09.2020 and it was requested to address all future correspondences involving assessment proceedings, notice of the assessee in the name of Pharmazell (India) Pvt. Ltd. The relevant portion of the Email is extracted here under : We on behalf of and under instructions from our client - Pharmazell (Vizag) Private Limited (the Assessee) wish to draw your goodself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Spice Entertainment, which I shall refer to in the course of this judgment. 5. To the contrary, it was submitted by the learned counsel for the respondent that the petitioner had participated in the proceedings and thus estopped in raising this procedural / technical defect of the assessment having been made in the name of Pharmazell Vizag Pvt. Ltd. 6. I find that the objection now raised by the learned counsel for the respondent stands rejected by the Division Bench of the Delhi High Court in the case of Spice Entertainment Ltd. vs. Commissioner of Income Tax, reported in 247 CTR 500 which has been affirmed by the Supreme Court in the case of Principal Commissioner of Income Tax vs. Maruti Suzuki India Ltd., reported in 416 ITR 613, the relevant portion is extracted hereunder : 20. In Spice Entertainment, (supra) a Division Bench of the Delhi High Court dealt with the question as to whether an assessment in the name of a company which has been amalgamated and has been dissolved is null and void or, whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The High Court held that upon a notice under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In view of this, we find no merit in the appeals and special leave petitions. Accordingly, the appeals and special leave petitions are dismissed. 25. The doctrine of merger results in the settled legal position that the judgment of the Delhi High Court stands affirmed by the above decision in the Civil Appeals. 7. Thereafter while dealing with the contention that a contrary view has been taken by the Delhi High Court in Sky Light Hospitality LLT which is affirmed by a 2 Judge bench of the Apex Court, it was found that it does not in any manner dilute or water down the law laid down in Spice Entertainment and it was clarified that the law laid down in Spice Entertainment governs the field as would be evident from the following portions of the judgment : 27. The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP (supra) which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon'ble Mr Justice A K Sikri and Hon'ble Mr Justice Ashok Bhushan 32 Sky Light Hospitality LLP (supra). In assessing the merits of the above submission, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11.04.2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused. 29. From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP (supra) against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 2928. The decision in Skylight Hospitality LLP (supra) has been distinguished by the Delhi, Gujarat and Madras High Courts in: (1) Rajender Kumar Sehgal (supra); (ii) Chandreshbhai Jayantibhai Patel; and (supro) (iii) Alamelu Veerappan (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case. 43. In view of the foregoing discussion and having regard to the facts of this case, this court is of the considered view, that the impugned order of the High Court cannot be sustained; it is set aside. 8.1. Importantly, the decision in Maruti Suzuki which was relied upon was distinguished in Mahagun Realtors (P) Ltd., primarily on the premise that in the case of Maruti Suzuki the assesse therein had duly informed the authorities about the merger of the company and yet the assessment order was passed in the name of the amalgamated / non existing company. Whereas, in the case of Mahagun Realtors (P) Ltd., the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company in the case of Mahagun Realtors (P) Ltd. It was thus held the decision in Maruti Suzuki was inapplicable to the facts of the case. The relevant portion of the order of the Supreme Court in Mahagun Realtors (P) Ltd., is extracted below for better appreciation of the above position : 7. The Revenue, represented by the Additional Solicitor General, Mr. N. Venkataraman, urged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and section 143(2) were issued in the name MRPL and the representative from MRPL corresponded with the Department in the name of MRPL On May 28, 2010, the assessee filed to of cores on the name of MRPL, and in the business reorganization column of the form mentioned not applicable amalgamation section. Though the respondent contends that they had intimated the authorities by letter dated July 22, 2010, it was for the assessment year 2007 -08 and not for the assessment year 2006-07 For the assessment years 2007-08 to 2008-09, separate proceedings under section 153A were initiated against MIPL and the proceedings against MRPL for these two assessment years were quashed by the Additional Commissioner of Income-tax by order dated November 30, 2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated August 11, 2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies. 35. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the Department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this court's opinion in consonance with the decision in Marshall and Sons (supra), which had held that*: an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee company. 8.2. The above extracts would show as stated supra that two facts which weighed with the Supreme Court in case of Mahagun Realtors (P) Ltd., was that the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company. It was under those circumstances it was held by the Supreme Court in Mahagun Realtors (P)Ltd., that the impugned order of the High Court holding that the assessments in that case was not a nullity. However, as found supra in the present case the petitioner had on atleast 5 occasions intimated the assessing authority as to the factum of amalgamation and requested that the assessment be made in the name of the resultant / amalgamated company and thus the impugned order in the name of the amalgamated / non existent company is non-est in terms of the decision of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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