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TMI Blog2024 (9) TMI 1631X X X X Extracts X X X X X X X X Extracts X X X X ..... ASHWANT VARMA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA ITA 116/2023, W.P.(C) 13807/2022, W.P.(C) 11498/2019, W.P.(C) 1894/2020, W.P.(C) 10882/2021, W.P.(C) 13862/2021, W.P.(C) 13883/2021, W.P.(C) 13930/2021, W.P.(C) 14005/2021, W.P.(C) 14061/2021, W.P.(C) 14062/2021, W.P.(C) 14296/2021, W.P.(C) 14306/2021, W.P.(C) 14798/2021, W.P.(C) 4035/2022, W.P.(C) 4038/2022, W.P.(C) 4103/2022, W.P.(C) 5021/2022, W.P.(C) 5022/2022, W.P.(C) 5118/2022, W.P.(C) 5134/2022, W.P.(C) 5161/2022, W.P.(C) 5165/2022, W.P.(C) 5166/2022, W.P.(C) 5171/2022, W.P.(C) 5475/2022, W.P.(C) 7151/2022, W.P.(C) 7217/2022, W.P.(C) 13991/2022, W.P.(C) 14034/2022, W.P.(C) 17290/2022, W.P.(C) 17329/2022 & CM APPL. 57045/2023 (Direction), W.P.(C) 3885/2023, W.P.(C) 4558/2023, W.P.(C) 5868/2023 & CM APPL. 23019/2023 (Interim Stay), W.P.(C) 7775/2023 & CM APPL. 30016/2023 (Stay), W.P.(C) 7487/2024 & CM APPL. 31188/2024 (Interim Stay), International Hospital Limited, Religare Enterprises Limited (As Successor-In-interest of Religare Securities Ltd), Baba Lease & Investment Pvt. Ltd., Gartner India Research And Advisory Services Private Limited, BSBK Engineers Private Limited (Resulting Company Of Vogue Leasing And Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv. Ms. Ananya Kapoor, Adv. Mr. Deepak Chopra, Mr. Ankul Goyal and Mr. Priyam Bhatnagar, Advs. Mr. Deepak Chopra, Mr. Ankul Goyal and Mr. Priyam Bhatnagar, Advs. Mr. Ruchesh Sinha and Ms. Monalisa Maity, Advs. Mr. Manuj Sabharwal and Mr. Drona Negi, Advocates, Mr. Vikas Jain, Mr. Aviral Saxena, Ms. Shrawani, Mr. Piyush Thavi and Mr. Hardik Jayal, Advs. Ms. Shreya Jain and Adv. Mr. Gaurav Tanwar, Advs., Mr. Mukesh Sukhija, Mr. Milind Gautam, Mr. Priyeranjan Ambashtha and Ms. Archana Biala, Advs., Mr. Sumit K. Batra, Mr. Manish Khurana, Ms. Priyanka Jindal & Mr. Nikhin Alex, Advs., Mr. Salil Kapoor, Mr. Sumit Lalchandani and Ms. Ananya Kapoor, Advs., Mr. Piyush Kaushik and Mr. Tanveer Zaki, Advs. For the Respondent Through: Mr. Gaurav Gupta, SSC along with Mr. Shivendra Singh and Mr. Yojit Pareek, JSCs. Mr. Siddhartha Sinha, SSC along with Ms. Dacchita Shahi and Ms. Anjuja Pethia, JSCs, Mr. Nring Chamwibo Zeliang and Ms. Anu Priya Minz, Advs. Mr. Anurag Ojha, SSC along with Ms. Hemlata Rawat and Mr. V.K. Saksena, JSCs. Mr. Abhishek Maratha, SSC with Mr. Parth Semiwal, Mr. Apoorv Agarwal, Jr SCs, Ms. Nupur Sharma, Mr. Gaurav Singh, Ms. Muskan Goel, Mr. Bhanukaran Singh, Ms. Surabhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factum of merger may have been intimated to the respondents as well as details pertaining to orders of assessment as made or notices issued under Section 148. That chart which was presented for our consideration is appended to the judgment as "Appendix "A". 4. From the facts which have been set forth in the lead writ petition being W.P.(C) 13807/2022, we find that Religare Securities Ltd [RSL]. was a company incorporated under the Companies Act, 1956 [1956 Act] and was regularly assessed to tax under the provisions of the Act. It is also stated to be a company which was duly listed on the National Stock Exchange as well as the Bombay Stock Exchange and engaged in providing security, brokering and depository services to its retail clients. For Assessment Year [AY] 2015-16, RSL is stated to have filed its return of income on 31 March 2017. An assessment order under Section 143 (3) thereafter came to be framed on 10 December 2018. Although that assessment formed subject matter of cross appeals preferred by respective sides before the Income Tax Appellate Tribunal [Tribunal], the dispute forming part of assessee's appeal ultimately came to be settled under the Direct Tax Vivad se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. Acting in purported compliance of that decision, the respondents on 25 May 2022 issued a communication in the name of RSL and provided a copy of the information on the basis of which the notice of 15 April 2021 had been initially issued. It is further alleged by the writ petitioner that without granting any right of personal hearing, a final order referable to Section 148A (d) came to be passed on 28 July 2022 followed by a consequential notice under Section 148. It was the aforesaid action which ultimately led to the institution of the present writ petition. It becomes pertinent to note that it was only the Section 148A (d) order and the consequential notice under Section 148 issued pursuant to the aforesaid determination which for the first time came to be framed in the name of the resultant entity, Religare Enterprises Limited. Both the original Section 148 notice as well as the subsequent notice under Section 148A (b) were in the name of RSL. 10. It becomes pertinent to note that although Instruction No. 1/2022 dated 11 May 2022 issued by the Central Board of Direct Taxes [CBDT] also formed subject matter of challenge in some of the writ petitions forming part of this ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [MSIL], was a nullity. On facts it emerged that MSIL had duly intimated the AO of the amalgamation prior to the case being selected for scrutiny assessment. Notwithstanding that information being available, the AO appears to have framed a draft assessment order in the name of SPIL. 14. It was in the aforesaid backdrop that the Supreme Court firstly took note of an earlier decision of this Court in Spice Entertainment Ltd. vs. Commissioner of Service Tax 2011 SCC OnLine Del 3210, where it had been held that an assessment made in the name of a transferor company would be void ab initio and could not possibly be viewed as a procedural defect curable or rectifiable under Section 292B of the Act. This becomes evident from the following conclusions which came to be rendered: "11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said 'dead person'. When notice under Section 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 147 in the following terms:- "In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292-B of the Income Tax Act. The special leave petition is dismissed. Pending applications stand disposed of." 17. In Maruti Suzuki it appears to have been urged by and on behalf of the Revenue that the decision in Spice Entertainment would not hold good in light of the decision which our High Court had pronounced in Sky Light Hospitality and which had come to be affirmed by the Supreme Court. Dealing with the aforesaid contention, the Supreme Court in Maruti Suzuki observed as follows: "28. 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 [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296] which was affirmed on 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] by a two-Judge Bench of this Court consisting of Hon'ble Mr Justice A.K. Sikri and Hon'ble Mr Justice Ashok Bhushan. In assessing the merits of the above submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase fell within the purview of Section 292-B for the following reasons : (Skylight Hospitality case [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296], SCC OnLine Del para 18) "18. ... There was no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11-4-2017. 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. The decision in Spice Entertainment [Spice Entertainment Ltd. v. Commr. of Service Tax, 2011 SCC OnLine Del 3210 : (2012) 280 ELT 43] was distinguished with the following observations : (Skylight Hospitality case [Skylight Hospitality LLP v. CIT, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... batch appear to have been urged before the Supreme Court in Maruti Suzuki with it being argued that a notice in the name of a company which stood dissolved would be a curable mistake and that in any case, Section 170 of the Act would save those notices. This becomes apparent from a reading of paragraphs 32 and 33 of the report which are extracted hereinbelow: "32. Mr Zoheb Hossain, learned counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, this Court did not find any infirmity in the decision of the Delhi High Court holding that the issuance of a notice to an erstwhile private limited company which had since been dissolved was only a mistake curable under Section 292-B. A close reading of the order of this Court dated 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147], however indicates that what weighed in the dismissal of the special leave petition were the peculiar facts of the case. Those facts have been noted above. What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession- (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assessed on the predecessor, cannot be recovered from him, the assessing officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor and the successo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable." 20. As is evident from the above, Maruti Suzuki came to affirm the view which was expressed by this Court in Spice Entertainment. The Court in Spice Entertainment had identified the principal question to be whether the provisions of Section 292B could be invoked to salvage a situation where an assessment comes to be framed in the name of the transferor company. The Court was called upon to examine whether such an order of assessment would be a nullity or one which could be viewed as suffering from a procedural defect which could be validated by invoking Section 292B. Dealing with this aspect, the Court in Spice Entertainment had observed as follows:- "8. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation. It dies with the dissolution as per the provisions of the Companies Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f England 4thEdition 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." 9. The Court referred to its earlier judgment in General Radio and Appliances Co. Ltd. v. M.A. Khader (1986) 60 Comp Case 1013. In view of the aforesaid clinching position in law, it is difficult to digest the circuitous route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect. 10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. v. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that "once a company is dissolved it becomes a non-existent party and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B." 14. The issue again cropped up before the Court in CIT v. Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tible 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'. 17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law in favour of the assessee and against the Revenue and allow these appeals." 21. A few years after Spice Entertainment, a similar question arose yet again in Sky Light Hospitality. Our Court on that occasion came to the conclusion that the mistake in that particular case was a technical error which could be attended to and saved by virtue of Section 292B of the Act. However, and as the Supreme Court itself had an occasion to note in Maruti Suzuki, the Court while coming to hold that Section 292B would apply, had pertinently observed that the material on record was indicative of the Revenue having always intended the notice to be addressed to the successor entity. It becomes pertinent to note that the Court in Sky Light Hospitality had alluded to "substantial and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the event it is adjudicated, would fall." 24. It also noticed the principles which had been spelt out with respect to a Scheme of Arrangement and its impact on a transferor company as was elaborated in Marshall Sons and Co. (India) Ltd. vs. Income Tax Officer (1997) 2 SCC 302 as would be evident from paragraph 22 of the report:- "22. The effect of amalgamation in the context of Income-tax, was again considered in another earlier decision, i.e., Marshall Sons and Co. (India) Ltd. v. ITO. There, the court held that: "14. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it - as has happened in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is adopted then several complications will ensue in case the court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, 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. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both, of transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best-judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly." (emphasis supplied) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings against MRPL started in August 27, 2008 - when search and seizure was first conducted on the Mahagun group of companies. Notices under section 153A 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 its return of income in the name of MRPL, and in the "business reorganization" column of the form mentioned "not applicable" in 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 partici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The return specifically suppressed - and did not disclose the amalgamation (with MIPL) - as the response to query 27(b) was 'N.A.'. 7. The return - apart from specifically being furnished in the name of MRPL, also contained its permanent account number. 8. During the assessment proceedings, there was full participation- on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under section 142). Objections to the special audit were filed in respect of portions relatable to MRPL. 9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending March 31, 2006, in the cross- objection before the Income-tax Appellate Tribunal, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence. 10. Assessment order was issued - undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL). 11. Appeals were filed to the Commissioner of Income-tax (and a cross-objection, to the Income-tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Furthermore, it would be anybody's guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the Assessing Officer is, in 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." 42. Before concluding, this court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. 43. In view of the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamation had taken place was not given for the assessment year in issue. (iv) The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated-company. (v) More crucially, while participating in proceedings before the concerned authorities, it was represented that the erstwhile company, i.e., the amalgamating company was in existence. 23. Clearly, the facts obtaining in Mahagun Realtors do not obtain in this matter. 24. As noticed above, even after the Assessing Officer was informed on December 6, 2013, that the amalgamation had taken place, and was furnished a copy of the scheme, he continued to proceed on the wrong path. This error continued to obtain, even after the Dispute Resolution Panel had made course correction. 25. Thus, for the foregoing reasons, we are unable to persuade ourselves with the contention advanced on behalf of the appellant- Revenue, that this is a mistake which can be corrected, by taking recourse to the powers available with the Revenue under section 292B of the Act." 31. We thus find ourselves unable to read Mahagun Realtors as a decision which may have either diluted or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be assessed in respect of income which arises or accrues after the date of succession. The income earned prior to the date of succession is liable to be taxed in the hands of the predecessor. While the respondents sought to draw sustenance from the phrase "when the predecessor cannot be found...." as appearing in sub-section (2) thereof, we find ourselves unable to read that expression as being akin to a dissolution of a corporate entity or its merger with another. The expression "cannot be found" cannot be construed as having been intended to cover situations where an entity ceases to exist in law by virtue of an amalgamation or merger. Regard must also be had to the heading of Section 170 and which speaks of succession to a business "otherwise than on death". It is thus concerned with a specific contingency pertaining to succession to a business and how the predecessor and successor are liable to be taxed. It has no concern with the question of whether a notice or order in the name of a non-existent entity could be treated as valid in law. ITA 116/2023 [International Hospital Ltd. Vs. DCIT Circle 12(2)] 36. The aforenoted appeal which stood tagged with the batch poses t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. We note that the Return in this case was submitted by EHSSIL prior to the Scheme being sanctioned. It was perhaps in that backdrop that the notice under Section 143(2) came to be issued in its name, albeit after the Scheme had come into force. The assessment proceedings were thus ongoing at the time when the Scheme came to be sanctioned. 40. However, and admittedly, the factum of merger had been duly brought to the attention of the AO. The merger was taken into consideration at more than one place in the order of assessment that came to be framed. Despite the above, the AO proceeded to draw the order in the name of an entity which had ceased to exist. We also bear in consideration the indubitable fact that the rectification order came to be passed three years after the framing of the original order of assessment, and that too, during the pendency of the appeal of the assessee and where a specific ground of challenge was raised in this regard. This was therefore not a case of discovery of an inadvertent error or mistake immediately after the passing of an order. 41. We also bear in consideration Maruti Suzuki having clearly held that such a mistake would not fall within the ken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the petitioner, we find that the order of 15 March 2022 speaks of various subsequent notices which had been issued and remained unanswered. In any event, the present writ petitions merely impugn the notice under Section 142 (1) with no challenge having been mounted in respect of the original notice of reassessment. These petitions would consequently merit dismissal. 45. The present order, however, would be without prejudice to such other rights and contentions that may be available and would be open to be canvassed in the ongoing reassessment action. W.P.(C) 5475/2022 [Shakuntlam Softech Private Limited (now amalgamated with Shakuntlam Securities Private Limited) vs. Income Tax Officer Ward 23(1) Delhi & Anr.] and W.P.(C) 4558/2023 [Suncity Hi-Tech Infrastructure Private Limited - After Merger of M/s Super Built Real Estates and Land Developers Pvt. Ltd. vs. Income Tax Officer, Ward 24-1, Delhi & Anr.] 46. Although these matters were included in the batch, there appears to be a factual dispute as to whether disclosures with respect to the sanction of the Scheme were made in the course of the assessment proceedings. The respondents categorically assert that no information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2022 26 March 2021 Notice under Section 148 W.P.(C) 5134/2022 26 March 2021 Notice under Section 148 W.P.(C) 5161/2022 27 March 2021 Notice under Section 148 W.P.(C) 5165/2022 26 March 2021 Notice under Section 148 W.P.(C) 5166/2022 26 March 2021 Notice under Section 148 W.P.(C) 5171/2022 26 March 2021 Notice under Section 148 W.P.(C) 7151/2022 28 March 2022 Assessment Order under Section 147 read with Section 144 W.P.(C) 7217/2022 30 March 2022 Assessment Order under Section 147 read with Section 144 W.P.(C) 13991/2022 21 June 2021 23 May 2022 25 July 2022 Notice under Section 148 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.(C) 14034/2022 27 May 2022 28 July 2022 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.(C) 17290/2022 25 June 2021 30 May 2022 30 July 2022 Notice under Section 148 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.(C) 17329/2022 20 April 2021 27 May 2022 28 July 2022 Notice under Section 148 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 - 21.05.2014 09.02.2015 (Through ITR of Transferor company for AY 2014-15) & 14.03.2016 (through letter) & 02.11.2016 (In the assessment order of 2014-15 in the case of Transferee company such fact was recorded by the AO) 09.02.2015 (ITR of Transferor company for AY 2014-15) 02.11.2016 (Assessment u/s 143 (3) the case of Transferee company for AY 2014-15, recording the facts of such amalgamation) 28.03.2019 Notice to Transferor company) Erstwhile regime 69. WP(C) 1894/2020 BABA LEASE & INVESTMENT PRIVATE LIMITED (Transferor company - Madhav Fin cap Private limited PAN AAMCS4890B) Transferee company-BABA LEASE & INVESTMENT PRIVATE LIMITED-PAN 2012-13 01.01.2014 - 21.05.2014 09.02.2015 (Through ITR of Transferor company for AY 2014-15) & 14.03.2016 (through letter) & 02.11.2016 (In the assessment order of 2014-15 in the case of Transferee company such fact was recorded by the AO) 09.02.2015 (ITR of Transferor company for AY 2014-15) 02.11.2016 (Assessment u/s 143 (3) the case of Transferee company for AY 2014-15, recording the facts of such amalgamation) 29.03.2019 Notice to Transferor company) Erstwhile regime 70. WP(C) No. 10882/2021 Gartner India Research & Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 31.03.2021 passed under section 143 (3)/144C, assessing the revised return of income [@ Annex G/Pg.227 onwards] 26.03.2021 Notice (section 148 of the Act) Erstwhile regime [@ Pg.63] Remarks: Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC) 74. WP(C) No.14005 of 2021 Religare Enterprises Ltd [as successor in interest of Religare Capital Markets (India) Pvt. Ltd.] vs. ACIT 2017-18 w.e.f. 01.04.2016 [@Pg.86] 28.09.2017 [@Pg.64] 08.12.2017 (w.e.f. 01.04.2016) [@ Pg.83] 29.12.2017 [@Pg.128-130] 29.03.2019 (Revised) [@ Annex E/Pg.131 onwards] Order dated 31.03.2021 passed under section 143 (3)/144C, assessing the revised return of income [@ Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rical NOC given by IT Dept. before NCLT on 28.09.2017, and despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC) 77. WP(C) No. 14296/2021 BSBK Engineers Pvt. Ltd. (resulting company of Parishudh Finance Company Pvt. Ltd. vs. ACIT 2017-18 w.e.f. 01.04.2016 - 02.08.2018 19.11.2018 [ANN: P-4] Page-49 Statutory notice u/s 148 issued to amalgamating entity i.e., Parishudh Finance which ceased to exist w.e.f - 02.08.2018. - 28.03.2021 Notice (section 148 of the Act) Erstwhile regime 78. WP(C) No. 14306 of 2021 Rangoli Resorts Pvt. Ltd. [as successor in interest of Ployflex Marketing Pvt. Ltd.] vs. ACIT 2017-18 w.e.f. 01.04.2016 [@Pg.68] - 28.11.2017 (w.e.f. 01.04.2016) [@ Annex B/Pg.61] 31.03.2018 [@ Annex D/Pg.109] 25.01.2018 (Belated) [@Annex E/ Pg.110 onwards] Order dated 07.12.2019 passed under section 143 (3) assessing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order is dated 31.01.2022 26.03.2021 Notice (section 148 of the Act) Erstwhile regime Remarks: * Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite intimation of amalgamation/surrender of old PAN/request for transfer of TDS/advance tax credit by the Petitioner (amalgamated entity). The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone (Pg. 133 of the writ petition-Annexure P-8). It is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC). The revised return has been filed by Qualcomm India Pvt. Ltd. after incorporating all the incomes/TDS/advance tax of the amalgamating entity and the same has been assessed to tax as well u/s 143 (3) proceedings (Annexure P-6). During assessment proceedings, a specific question was asked about the merger, which was duly explained and responded to. The aspect of merger was also informed in the ROI under the 'Business Organization' Column (Annexure P5). Hence, the Respondents have been well awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to company which already stands amalgamated Order dated 04.03.2022 passed u/s. 144 r.w.s. 144B of the Act for AY 2017-18 in the name of amalgamated company 31.03.2021 Notice (section 148 of the Act) Erstwhile regime 94. WP(C) No. 7151/2022 Mercer Consulting (India) Pvt. Ltd. vs. DCIT 2013-14 w.e.f. 01.04.2011 - Hon'ble Delhi High Court & Hon'ble High Court of Punjab & Haryana 28.02.2013 and 23.05.2013 30.11.2019 (ROI for AY 2013-14) Letter dated 24.07.2014 -proceedings for AY 2012-13 dropped on the predecessor entity after being intimated that the predecessor ceased to exist @pg 153 TPO order for the preceding year i.e. AY 2012-13 dated 29.01.2016 passed in case of the successor categorically records that the predecessor entity ceased to exist @pg 157 Not applicable as the amalgamation order was passed prior to commencement of AY 2013-14 and 2016-17 14.02.2017 (on the successor 30.03.2021 (notice under s. 148) 28.03.2022 (assessment order) 95. WP(C) No. 7217/2022 Mercer Consulting (India) Pvt. Ltd. vs. DCIT 2016-17 w.e.f. 01.04.2011 - 20.01.2020 (on the successor 27.03.2021 (notice under s. 148) 30.03.2022 (assessment order) Remarks for Mercer Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.05.2022 Notice u/s 148A(b) of the Act. 27.07.2022 Order u/s 148A(d) of the Act. 27.07.2022 Notice u/s 148 of the Act 101. WP(C) No. 4473 of 2023 Capgemini Technology Services India Ltd. [as successor in interest of Aricent Technologies Pvt. Ltd.] vs. ACIT 2017-18 w.e.f. 01.04.2020 Intimation filed with AO on 30.05.2020. 21.12.2020 26.07.2021 - Scrutiny assessment was initiated u/s 143(2), however, final assessment order was not passed before the expiry of period of limitation. Hence, the original assessment proceedings became barred by limitation. 30.06.2021 Notice under section 148 of the Act - Erstwhile Regime 24.05.2022 - Notice pursuant to apex Court decision in Ashish Agarwal 29.07.2022 - Order u/s 148A(d) and fresh notice u/s 148 of the Act Distinguishing features from the facts arising in the case of Mahagun Realtors: (a) Scrutiny assessment was originally initiated u/s 143 (2), however, the final assessment order was not passed before the expiry of period of limitation provided under section 153 of the Act. Thus, the assessing officer attempted to initiate re-assessment proceedings. (b) In the course of the proceedings before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Remarks: * Notice u/s 148 issued in the name of non-existent amalgamating entity on 30.06.2021 (Annexure P-4, Pg. 108). Thereafter, pursuant to Ashish Agarwal(supra), notice under Section 148A(b) was issued on 27.05.2022 in the name of non-existent amalgamating entity (Annexure P-8, Pg. 182). Even Section 148A(d) order dated 30.07.2022 and impugned Section 148 notice dated 30.07.2022 (Annexure P-12, Pg. 285 and Pg. 292). The present case admittedly falls under Category I as notice has been issued/order has been passed in the name of the amalgamating entity alone. It is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC). The Respondent was made aware of the fact of the amalgamation while the proceedings for approval of amalgamation was pending before this Hon'ble Court Company Petition 731/2015 (para 8, Annexure P-2, Pg. 69). Furthermore, the Resultant Merged Company (i.e., the Petitioner herein) has been regularly assessed under scrutiny assessment proceedings from time-to-time post-merger and thus the fact of merger was privy to the Tax Department. The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax PAN Services Unit whereby the Petitioner was informed about the issuance of new PAN to the amalgamated entity. [Ann. P3 - Pg. 49 of the WP] This Hon'ble Court in the case of PCIT v. Nokia Solutions & Network India (P.) Ltd., [2018] 90 taxmann.com 369 (Delhi HC) has upheld the order of the Tribunal wherein the regular assessment framed for AY 2006-07 on the non-existent entity was quashed. Intimation - 25.05.2009 - surrendering the PAN of the amalgamating company. [Ann P5 - Pg. 110 of the WP] 28.12.2017 Notice under section 148 of the Act was never served on the Petitioner. The factum of reassessment proceedings was informed by virtue of a notice issued under section 142(1) of the Act. Notice u/s 142(1) dated 15.03.22 issued in the name of non-existent entity [Ann. P1- Pg. 43 to 45 of the WP]. Erstwhile regime 84. WP (C) 5021/2022 Nokia Solutions and Networks India Pvt. Ltd. (successor of Nokia Siemens Networks India Pvt. Ltd.) v. DCIT (The challenge is to the initiation of reassessment proceedings by way of issuance of notice under section 148 of the Act and the proceedings emanating therefrom) 2016-17 w.e.f. 01.04.2008 09.01.2009 31.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2016 -scrutiny assessment - the returned income was accepted. [Pg. 60-61 of the WP - Ann. P4] Notice dated 27.03.2021 under section 148 of the Act -Pg. 49 of the WP - Ann. P1. Erstwhile regime 88. WP(C) No. 5134/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2015-16 01.04.2011 27.05.2013 Intimation -03.05.2018 -also requested to surrender PAN [Pg. 59 of the WP -Ann. P4] Amalgamation related modification was not required as necessary changes were incorporated during the course of filing of original return. The fact that revised return was filed for AY 2012-13, has been noted in Assessment Order dated 23.03.2015 for AY 2012-13. [Pg. 215-216 of the WP - Ann. P12] Regular assessment concluded vide Order dated 26.12.2017. [Pg. 209-210 of the WP - Ann. P11] Reassessment on the amalgamated entity was concluded vide Order dated 30.03.2022 [Pg. 502-503 of the WP (5134-2022)] Notice dated 26.03.2021 under section 148 of the Act - Pg. 49 of the WP - Ann. P1. Erstwhile regime 92. WP(C) No. 5171/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2016-17 01.04.2011 27.05.2013 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2020] 420 ITR 339 (SC). Further, reliance is also placed on judgment passed in the case of CLSA India Pvt. Ltd. v. DCIT, [2023] 149 taxmann.com 380 (Bombay High Court) and DCIT v. Sterlite Technologies Ltd., [2024] 158 taxmann.om 242 (SC) confirming the judgement rendered in Sterlite Technologies Ltd. v. DCIT, [2023] 152 taxmann.com 381 (Bombay High Court), wherein it is held that merely because PAN in the name of non-existent entity had remained active does not create any exception in favour of Revenue to justify the initiation of reassessment proceedings and dilute the legal position as laid down by the Hon'ble Supreme Court in Maruti Suzuki India Ltd. (supra). 16. ITA No. 539/2023 CIT vs John Wiley & Sons, Inc. (The assessment order dated 20.06.2022 passed in the name of erstwhile entity is under challenge) 2019-20 w.e.f. 15.05.2018 (Scheme approved by Secretary of State, New York on 15.05.2018) - - 13.04.2021 - 1st intimation 17.03.2021 - 2nd intimation 28.11.2019 (Belated) Draft Order - 29.09.2021 DRP directions-29.04.2022 Final assessment order-20.06.2022. Thereafter, the Tribunal vide order dated 20.02.2023 held final assessment order passed in the name of erstw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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