9911796707
TMI Blog2024 (12) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... s in pursuance of the order passed by this Court in the proceedings of Company Petition. In this view of the matter, the impugned action u/s 148 of the IT Act leading to passing of the assessment order, as impugned, was wholly without jurisdiction, non-est and a nulity. - G. S. KULKARNI ADVAIT M. SETHNA, JJ. For the Petitioner: Mr. Sanjiv M. Shah with Ms. Rutuja Pawar. For the Respondents: Mr. Vikas Khanchandani. ORAL JUDGMENT (PER G. S. KULKARNI, J.) :- 1. Rule, returnable forthwith. Respondents waive service. By consent of the parties, heard finally as a short issue of law is involved. 2. A short issue is involved in both these petitions, which pertain to the assessment years 2018-19 and 2019-20 respectively. The challenge as mounted in the present writ petitions is to an action initiated by the respondents against the petitioner under the provisions of Section 148A of the Income Tax Act, 1961 (for short, the IT Act ) by issuance of a notice under Section 148A (b) of the IT Act and in passing an order under Section 148A (d) so as to reopen the assessment for these assessment years. Consequent thereto, a notice under Section 148 of the IT Act was issued as also an assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 01 April 2005 and for such reason, issuing notice to Thermax Babcock would be void ab initio as it was a non-existing entity, accordingly the Assessing Officer held that it is not a fit case for issuance of notice under Section 148 of the IT Act for Assessment Year 2020-21. The relevant observations of the Assessing Officer are required to be noted which read thus:- 07. Finding of the A.O.: The information and material available on record has been analysed, and the following observations are made:- A. The assessee has submitted that transactions mentioned above are of Thermax Ltd (AAACT3910D), and are not related to PAN AAACT3908K as mentioned in the notice which is related to erstwhile Thermax Babcock and Wilcox Limited which was amalgamated with Thermax Limited (PAN: AAACT3910D) w.e.f. 01/04/2005. The assessee further submitted that the bank, after cross verification of their record, confirmed that they mentioned wrong PAN while reporting and the above transactions are pertaining to PAN AAACT3910D which is related to Thermax Ltd., and the transactions are not related to PAN AAACT3908K. In support of its claim, the assessee has also submitted letter from the bank co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income Ors. Writ Petition (L.) No. 23562 of 2024 decided on 08 October 2024 by a co-ordinate Bench of this Court of which one of us (G. S. Kulkarni, J.) was a member. In such decision, in similar circumstances, the Court taking into consideration the decision of the Supreme Court in Principal Commissioner of Income-Tax v. Maruti Suzuki India Ltd. (supra) had quashed and set aside similar action initiated by the department. The Court, in such context has made the following observations:- 11. Now coming to the challenge to the impugned notice as raised by the Petitioner. Having perused the record as also the decisions as relied by Mr. Mistri, we are persuaded to accept Mr. Mistri's contentions that Respondent No.1 could not have issued the impugned notices under section 148A (b) and pass an order thereon under sub-section (d), as also issue notice under Section 148 of the Act to the assessee as it was a non-existent entity. In such context, Mr. Mistri's reliance on the decision of the Supreme Court in Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. (supra) is apposite. In such decision the Supreme Court has held that once the amalgamating c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year 2012-13 in the name of non-existing entity is a substantive illegality and would not be procedural violation of Section 292 (b) of the Act. The Supreme Court in its aforesaid decision, has quoted an extract from its decision in Saraswati Industrial Syndicate Lid. v. CIT [1990] 53 Taxman 92/186 ITR 278 . The Supreme Court has also referred to decision of Delhi high court in the case of CIT v. Spice Enfotainment Ltd. [2018] 12 ITR-OL 134 (SC) and observed that in its decision Delhi high court had held that assessment order passed against non-existing company would be void. Such defect cannot be treated as procedural defect and mere participation of appellant would be of no effect as there is no estoppel against law. Such a defect cannot be cured by invoking provisions under section 292B. The Supreme Court had also taken note of decision in Spice Entertainment Ltd. (supra) was followed by Delhi high court in matters, viz. CIT v. Dimension Apparels (P.) Ltd. [2014].52 taxmann.com 356/[2015] 370 ITR 288, CIT v. Micron Steels (P.) Ltd. [2015] 59 taxmann.com 470/233 Taxman 120/372 ITR 386 (Mag.); CIT v. Micra India (P.) Ltd. [2015]_57 taxmann.com 163/231 Taxman 809 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
