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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 ..... tent entities/ amalgamanting compnaies - Reassessment action initiated by the respondents on the ground of the amalgamated entity having never been placed on notice - as argued no notices were served upon the amalgamated entity and orders of assessment as well as notices of reassessment were maintained in the name of the amalgamating entity - HELD THAT:- Position in law appears to be well- settled that a notice or proceedings drawn against a dissolved company or one which no longer exists in law would invalidate proceedings beyond repair. Maruti Suzuki conclusively answers this aspect and leaves us in no doubt that the initiation or continuance of proceedings after a company has merged pursuant to a Scheme of Arrangement and ultimately comes to be dissolved, would not sustain. We note that in this batch of writ petitions and in light of the disclosures which have been made, the assessees clearly appear to have apprised their respective AOs of the factum of amalgamation and merger at the first available instance. If the respondents chose to ignore or acknowledge those fundamental changes, they would have to bear the consequences which would follow. Once the Scheme came to be approve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We also bear in consideration Maruti Suzuki [ 2019 (7) TMI 1449 - SUPREME COURT] having clearly held that such a mistake would not fall within the ken of Section 292B of the Act. An exercise of rectification as undertaken in the present case, if accorded a judicial imprimatur, would in effect amount to recognising a power to amend, modify or correct in an attempt to overcome a fundamental and jurisdictional error contrary to the principles enunciated in Maruti Suzuki. We also cannot lose sight of the fact that this was not a case where the assessee had attempted to mislead or suppress material facts and which may have warranted the case of the assessee being placed in the genre which was considered in Mahagun Realtors. The mere submission of replies on the letter head of EHSSIL also fails to convince us to hold in favour of the Revenue. In any event, none of the authorities below have held that the appellant was guilty of suppression. We would thus be inclined to allow the instant appeal and answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Finance Pvt. Ltd.) Religare Enterprises Ltd. (as Successor-in-Interest of RGAM Investment Advisers Private Limited), Religare Enterprises Ltd. (As Successor-in-Interest of Religare Capital Markets (India) Pvt. Ltd.), BSBK Engineers Private Limited (Resulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 Jain and Mr. Himanshu Gaur, Advocates. Mr. Sanjay Kumar, SSC along with Ms. Easha Kadian, JSC. Mr. Sunil Kumar Agarwal, SSC along with Mr. Shivansh B. Pandya, Mr. Viplav Acharya, JSCs and Mr. Utkarsh Tiwari Adv., Mr. Ruchir Bhatia, SSC along with Mr. Anant Mann, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Vishwas Act, 2020 [The 2020 Act]. The appeal of the Revenue, however, continues to remain pending before the Tribunal. 5. Eleven entities of the Religare Group including RSL are stated to have filed a petition before the NCLT for approval of a composite Scheme of Arrange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 batch, no arguments were addressed on that score. We thus confine our determination to the principal question of whether the impugned proceedings would sustain when viewed in the context of the same having been drawn in the name of entities which had ceased to exist. 11. The wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 submission, it is necessary to extract the order dated 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] of this Court : (Skylight Hospitality case[Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] , SCC p. 147, para 1) 1. In the peculiar facts of this case, we are convinced that wrong na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror 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, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296] , SCC OnLine Del para 19) 19. Petitioner relies on Spice Infotainment v. CIT [This judgment has also been referred to as Spice Infotainment Ltd. v. CIT, (2012) 247 CTR (Del) 500. Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 successor shall be entitled to recover from the predecessor any sum so paid. (4) Where any business or profession carried on by a Hindu undivided family is succeeded to, and simultaneously with the succession or after the succession there has been a partition of the joint family property between the members or groups of members, the tax due in respect of the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 of law. This position is even accepted by the Tribunal in para-14 of its order extracted above. Having regard this consequence provided in law, in number of cases, the Supreme Court held that assessment upon a dissolved company is impermissible as there is no provision in Income-Tax to make an assessment thereupon. In the case of Saraswati Industrial Syndicate Ltd. v. CIT, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved . 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment 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 be made on a invalid return. In the process, the Court observed as under: - Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 affirmative material and evidence on record which indicated that the issuance of the notice in the name of the dissolved entity was a mistake. In arriving at that conclusion, it had not only borne in consideration the material which existed on the record as also the tax evasion report which had duly taken note of the conversion of the Private Limited Company into an LLP. It is thus apparent that Sky Light Hospitality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier 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 case - it should follow that the rate of amalgamation/date of transfer is the date specified in the scheme as 'the transfer date'. It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time ; indeed, they are bound to take some time because seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) 23. Many High Courts in recent years, had mostly relied upon Saraswati Syndicate which was a case where the transferor entity had claimed a certain relief on the basis of the agreed method of accounting. The corresponding obligation to recognise the demands was sought to be disallowed in the subsequent year, in the case of the then transferee-company. The decision of the Delhi High Court, in Spice (supra), after discussing the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 present case, the participation in proceedings was by MRPL - which held out itself as MRPL. 27. After copiously taking note of the disclosures which were made in the course of assessment, it found that the following salient facts emerged in the case of Mahagun Realtors:- 40. The facts of the present case are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellate Tribunal) - by MRPL 'represented by MIPL'. 12. At no point in time - the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL. 13. The counter-affidavit filed before this court - (dated November 7, 2020) has been affirmed by Shri Amit Jain S/o Shri P. K. Jain, who- is described in the affidavit as 'Director of M/s. Mahagun Realtors (P.) Ltd., R/o...'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 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. Since the appeal of the Revenue against the order of the Commissioner of Income-tax was not heard on the merits, the matter is restored to the file of the Income-tax Appellate Tribunal, which shall proceed to hear the parties on the merits of the appeal - as well as the cross- objections, on issues, other than the nullity of the assessment order, on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed 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 struck a discordant chord with the principles which came to be enunciated in Maruti Suzuki. We also bear in mind the indisputable position of both judgments having been rendered by co-equal Benches of the Supreme Court. Mahagun Realtors is ultimately liable to be appreciated bearing in mind the peculiar facts of that case including the conduct of the assessee therein. It was those facets which appear to have weighed upon the Supreme Court to hold against the assessee. 32. In view of the aforesaid, the position in law appears to be well- settled that a notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 the following question of law for our consideration: - Whether the Income Tax Appellate Tribunal has misdirected itself in law and on facts in sustaining the order of the Commissioner of Income Tax (Appeals) dated 30.05.2019 and the order dated 29.01.2019 passed by the Assessing Officer (AO) under Section 154 of the Income Tax Act, 1961? 37. Escorts Heart and Super Specialty Institute Ltd [EHSSIL] is stated to have filed its Return of Income for AY 2013-14 on 30 September 2013. Pursuant to a Scheme of Arrangement which came to be sanctioned by the Punjab and Haryana High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded 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 of Section 292B of the Act. An exercise of rectification as undertaken in the present case, if accorded a judicial imprimatur, would in effect amount to recognising a power to amend, modify or correct in an attempt to overcome a fundamental and jurisdictional error contrary to the principles enunciated in Maruti Suzuki. 42. We also cannot lose sight of the fact that this was not a case where the assessee had attempted to mislead or suppress material facts and which may have warranted the case of the assessee being placed in the genre which was considered in Mahagun Realtors. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tech 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 with respect to a Scheme that may have been approved was provided during the course of assessment. The petitioners on the other hand aver that the respondents had been duly placed on notice of the proceedings pending before the NCLT and which had preceded the ultimate approval of the Scheme. In W.P.(C) 4558/2023, the petitioners allude to a communication issued by the Regional Director while the Scheme was pending approval. 47. As is manifest from the aforesaid recordal of facts, there was an abject and evident failure on the part of the petitioners to apprise the respondents of a Scheme which sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.(C) 3885/2023 15 April 2021 26 May 2022 27 July 2022 Notice under Section 148 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.(C) 5868/2023 30 June 2021 20 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) 7775/2023 14 March 2023 23 March 2023 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 W.P.(C) 7487/2024 23 February 2024 22 March 2024 Order under Section 148A (b) Order under Section 148A (d) and Notice under Section 148 49. For reasons assigned in Paragraphs 43 to 45 we dismiss W.P.(C) 5021/2022, W.P.(C) 5022/2022, and W.P.(C) 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Advisory Services Private Ltd. vs. Assessing Officer, NFAC Anr. 2017-18 w.e.f. 01.04.2018 - 20.12.2018 Emails dated 20.12.2019, 07.08.2020, 05.11.2020 and letter dated 19.01.2021 filed before TPO Letter dated 31.10.2019, 14.12.2020 04.02.2021 filed before AO - TPO Order passed on 25.01.2021, draft Assessment Order dated 07.04.2021, and final assessment order dated 30.06.2021passed by AO 25.01.2021 TPO Order 07.04.2021 Draft Assessment Order 30.06.2021 Final Assessment Order *Distinguishing features: The subject writ petition has been filed challenging the order dated 25.01.2021 passed by the TPO and consequential draft assessment order dated 07.04.2021 and final assessment order dated 30.06.2021 passed by the AO for the subject assessment year in the name of the non-existent entity which is non-est, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 G/Pg.227-232] 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) 75. WP(C) No.14061 of 2021 Religare Enterprises Ltd [as successor in interest of Religare Arts Investment Management 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 the belated return of income [@ Annex F/Pg.160-167] 26.03.2021 Notice (section 148 of the Act) Erstwhile regime [@ Pg.60] 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 by the Petitioner (amalgamated entity) on 31.03.2018. 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) 79. WP(C) No. 14798/2021 Madhu Viniyog Pvt. Ltd. (Marigold Nirman Pvt. Ltd. merged with Petitioner) vs. DCIT 2013-14 w.e.f. 01.04.2016 18.12.2017 09.07.2018 18.09.2018 04.02.2019 - Merged entity filed return on 21.09.2018 26.03.2021 Notice (section 148 of the Act) Erstwhile regime Remarks : Notice u/s 148 (old regime) issued in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onded to. The aspect of merger was also informed in the ROI under the Business Organization Column (Annexure P5). Hence, the Respondents have been well aware of the merger/amalgamation 83. WP(C) No. 4925/2022 Radiant Polymers Pvt. Ltd. vs. ACIT 2016-17 w.e.f. 01.04.2015 - 14.06.2018 Amalgamation discussed in assessment order dated 22.04.2021 of successor for AY 2018-19. 26.09.2016 (Original) - 26.03.2021 Notice (section 148 of the Act) Erstwhile regime 87. WP(C) No. 5082/2022 Radiant Polymers Pvt. Ltd. vs. ACIT 2017-18 w.e.f. 01.04.2015 - 14.06.2018 Assessment proceedings initiated vide notice dated 11.03.2022 for AY 2018-19 against predecessor is dropped 31.10.2017 (Original) 17.12.2019 26.03.2021 Notice (section 148 of the Act) Erstwhile regime Remarks for Radiant Polymers: Revenue has wrongly contested in its chart that the intimation of amalgamation has not been given to them (this has been done without filing a counter affidavit). The Counsel for the Petitioner has sent an e-mail dated 24.08.2024 whereby it has been asserted that the due process followed in case of amalgamation matters before NCLT, in itself, incorporates such intimation. The AO vide notice dated 21.12.2020 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 (notice under s. 148) 30.03.2022 (assessment order) Remarks for Mercer Consulting: The Petitioner has asserted that the amount of addition proposes has already been considered in the P L account of the successor and the said fact regarding the interest income has been admitted by the Respondents. As regards, the expenditure proposed to be added, the counsel for the Revenue was supposed to obtain instruction which were never intimated to the Hon ble Court [refer interim order dated 24.05.2022]. 96. WP(C) No. 13991/2022 Ekum Design Pvt. Ltd. vs. ITO 2017-18 w.e.f. 01.04.2016 - 01.07.2019 23.08.2019 Period to file revised return expired before approval of NCLT No notice issued u/s. 143(2) 21.06.2021 Notice (section 148 of the Act) Erstwhile regime Remarks : - The present case clearly falls under Category I, as the notice U/s 148A(b) was issued solely in the name of the amalgamating entity. This situation is unequivocally covered by the legal precedents set forth in PCIT v. Maruti Suzuki India Ltd. [2019] 416 ITR 613 (SC), which establish that any proceedings initiated in the name of a non-existent entity are void ab initio. 97. WP(C) No. 14034/2022 Siddheshwari Tradex Pvt. Ltd. (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner vide email dated 30.05.2020 (during Covid-19) informed the assessing officer that Aricent Technologies Pvt Ltd is being merged with Aricent Technologies (Holdings) Ltd alongwith Form CAA-9 and scheme of merger. [Refer: Annexure R @ Pg. 268]; (c) Vide letter dated 26.07.2021 filed with the assessing officer, the Petitioner duly informed / reiterated that the erstwhile entity stands merged with Aricent Technologies (Holdings) Ltd. [Refer: Annexure S @ Pg. 270] (d) Petitioner filed detailed reply dated 15.09.2021 before the assessing officer raising the objections that proceedings cannot be initiated on non-existent entity. [Refer: Annexure L @ Pg. 221] (e) Petitioner filed objections dated 07.06.2022 in response to intimation/ letter dated 24.05.2022 reiterating that the erstwhile entity stands merged with Aricent Technologies (Holdings) Ltd. [Refer: Annexure N @ Pg. 244] (f) Even after repeatedly informing the assessing officer about the amalgamation of Aricent Technologies Pvt Ltd with Aricent Technologies (Holdings) Ltd, the assessing officer passed the order dated 29.07.2022 under section 148A(d) of the Act and issued the notice dated 29.07.2022 under section 148 in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edge of the Income Tax Department as on as many as several prior occasions, the same was disclosed; (i) during scrutiny assessment proceedings pertaining to AY 2015- 16, wherein the Audited Financial Statements of the Petitioner evidencing the fact of the merger was submitted (Pg.73-74 and Pg.83 Annexure P-3). (ii) intimation to Respondent No. 1 vide W.P. (c) 9137/2021 on 21.08.2021, and (iii) Petitioner s reply dated 28.06.2022 in response to Notice dated 27.05.2022 under section 148A(b) of the Act issued by Respondent No. 1 (Annexure P-10). The same is also accepted by the Respondent No. 1 while passing the impugned order at Pg. 286 (para 7.c) however, still the Respondent No. 1 proceeded to issue notice in the name of the non-existent amalgamating entity. Apart from the above, the Petitioner has also raised other legal issues including AY 2013-14 being barred by time limitation in view of the first proviso. The Petitioner has also raised the issue that no income chargeable to tax has escaped assessment in the facts of the present case. On merits, this issue is covered by the decision of this Hon ble Court passed in the case of the sister-concern annexed as Annexure P-15, Pg. 333 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 85. WP (C) 5022/2022 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) 2014-15 w.e.f. 01.04.2018 09.01.2009 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. 42 to 44 of the WP] Notice dated 20.05.2022 issued under section 148A(b) of the Act [Pg. 153 -155 of the WP]. Erstwhile as well as New regime 91. WP(C) No. 5166/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2013-14 01.04.2011 27.05.2013 Intimation 03.05.2018 also requested to surrender PAN [Pg. 63 of the WP Ann. P5] Amalgamation related modification was not required as necessary chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 23.03.2015 for AY 2012-13. [Pg. 211-212 of the WP Ann. P12] Regular assessment concluded vide Order 27.12.2018. [Pg. 209-210 of the WP Ann. P11] Reassessment on the amalgamated entity was concluded vide Order dated 30.03.2022. [Pg. 504-505 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 90. WP(C) No. 5165/2022 Paytm Mobile Solutions Pvt. Ltd. (now merged into One 97 Communications Ltd.) v. ACIT 2017-18 01.04.2011 27.05.2013 Intimation 03.05.2018 also requested to surrender PAN [Pg. 75 of the WP Ann. P6] 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. 69-70 of the WP Ann. P4] Regular assessment concluded vide dated 29.12.2019. [Pg. 73-34 of the WP Ann. P5] Reassessment on the amalgamated entity was concluded vide Order dated 30.03.2022. [Pg. 506-507 of the WP (5134-2022)] Notice dated 26.03.2021 under section 148 of the Act Pg. 59 of the WP Ann. P1. Erstwhile regime Remarks: Assessment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the erstwhile entity, is under challenge. The DRP vide directions dated 29.04.2022, categorically directed the AO to pass the final assessment order as per the name given in the directions (i.e., John Wiley Sons, Inc. / amalgamated entity) (refer para 2.1 of the DRP directions on page 54 and 55 of the appeal for DRP directions in AY 2018-19 and 3 2019-20 respectively). The said fact has also been acknowledged by the ITAT vide order dated 20.02.2023 at para 2.1 on page 27 for the ITAT order at page 22-27 of the appeal for AY 2018-19 and AY 2019-20. Thus, since the DRP directions were not followed by the AO in both letter and spirit, as per scheme of 144C of the Act, the final assessment order is bad in law and liable to bequashed on this count as well. 17. ITA No. 554/2023 CIT vs John Wiley Sons, Inc. (The assessment order dated 20.06.2022 passed in the name of erstwhile entity is under challenge) 2018-19 w.e.f. 15.05.2018 (Scheme approved by Secretary of State, New York on 15.05.2018) - - 18.11.2020 1 st intimation 17.03.2021 2 nd intimation 23.03.2021 3 rd intimation 11.04.2019 (Revised post defect notice) Draft Order - 29.09.2021 DRP directions-29.04.2022 Final assessment order- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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