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TMI Blog2024 (10) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... 48A (b) and pass an order thereon and further to issue the impugned notice u/s 148 to a non-existing entity- Uber India Research and Development Private Limited . Such notices at the threshold were illegal, invalid and non-est. Decided in favour of assessee. - G. S. KULKARNI FIRDOSH P. POONIWALLA JJ. For the Petitioner : Mr. Jehangir Mistri, Sr. Advocate a/w. Mr. Dharan V. Gandhi. For the Respondents : Mr. Akhileshwar Sharma. ORAL JUDGEMENT (PER G. S. KULKARNI J.): 1. Rule. Rule returnable forthwith. Respondents waive service. As a short issue on law is involved, by consent of the parties, taken up for final disposal at the admission stage. 2. One Uber India Research and Development Private Limited stood amalgamated with the Petitioner by virtue of an Order dated 1 November 2023 passed by the National Company Law Tribunal (NCLT), approving a scheme of amalgamation. Such order is placed on record at Exhibit-S to this Petition. 3. The present proceedings concern, the amalgamating company, Uber India Research and Development Private Limited (for short the Assessee ), which has become a non-existent company by virtue of its amalgamation with the Petitioner. 4. It is the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into the legality and propriety thereof, to quash and set aside the show cause notice issued u/s 148A (b) of the Act dated 31.03.2024 ( Exhibit T ), the impugned order dated 10.04.2024 passed under Section 148A( d) of the Act ( Exhibit V ) and the subsequent notice dated 10.04.2024 ( Exhibit W ) issued under Section 148 of the Act. (b) This Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, directing the Respondents, its servants, subordinates, agents and successors in office: i. to forthwith withdraw and/or cancel the show cause notice issued u/s 148A (b) of the Act dated 31.03.2024 ( Exhibit T ), the impugned order dated 10.04.2024 passed under Section 148A (d) of the Act ( Exhibit V ) and the subsequent notice dated 10.04.2024 ( Exhibit W ) issued under Section 148 of the Act. ii. to forthwith forbear from taking any steps whatsoever pursuant to or in implementation of the show cause notice issued u/s 148A (b) of the Act dated 31.03.2024 ( Exhibit T ), the impugned order dated 10.04.2024 passed under Section 148A (d) of the Act ( Exhibit V ) and the subsequent notice dated 10.04.2024 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see was a non-existing entity, so as to legally respond to the action being initiated by Respondent No. 1, to reopen its assessment for the assessment year in question. 10. At the outset, we may observe that Respondent no. 1 is based at Hyderabad in the State of Telangana. Thus, at the outset, we address the issue as to whether this Court can exercise jurisdiction under Article 226 of the Constitution, when Respondent No. 1, against whom the relief is sought, is not situated within the territorial jurisdiction of this Court. In this context, we may observe that it is not in dispute that, in the facts of the present case, although the impugned notice is issued to the assessee which is a non existent company, the same is served on the Petitioner, whose registered office is within the territorial jurisdiction of this Court, and who has received the impugned notice at Mumbai. It is the Petitioner which is required to defend such notice as served on it at Mumbai. The Petitioner is an Assessee within the jurisdiction of the Tax Authorities at Mumbai. In this situation, in our opinion, certainly a part of the cause of action, in terms of clause (2) of Article 226 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment (supra). 12. The decision of the Supreme Court in Maruti Suzuki India Ltd. (supra) is followed by a Co-ordinate Bench of this Court to allow Teleperformance Global Services (P.) Ltd.(supra), the facts therein being identical to the case in hand. The relevant observations of this Court in the decision of Teleperformance Global Services (P.) Ltd. (supra) are required to be noted which read thus:- 22. The Supreme Court in the case of Maruti Suzuki India Ltd. (supra) had considered that income, which was subject to be charged to tax for the assessment year 2012-13 was the income of erstwhile entity prior to amalgamation. Transferee had assumed liabilities of transferor company, including that of tax. The consequence of approved scheme of amalgamation was that amalgamating company had ceased to exist and on its ceasing to exist, it cannot be regarded as a person against whom assessment proceeding can be initiated. In said case before notice under section 143 (2) of the Act was issued on 26-9-2013, the scheme of amalgamat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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