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TMI Blog2024 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... s been passed in the correct name, therefore, the assessment has rightly been made in the present case. Decided in favour of assessee. - Shri Om Prakash Kant, Accountant Member And Shri Sandeep Singh Karhail, Judicial Member For the Assessee : Shri Gautam Thakkar For the Revenue : Shri Krishnakumar, Sr.DR ORDER PER SANDEEP SINGH KARHAIL, J.M. The Revenue has filed the present appeal against the impugned order dated 28.08.2023, passed under section 250 of the Income Tax Act, 1961 ( the Act ) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [ learned CIT(A) ], which in turn arose from the assessment order dated 31.03.2022 passed under section 147 of the Act, for the Assessment Year 2013-14. 2. The delay of 25 days in filing the present appeal by the Revenue is condoned in view of the submissions made in the application seeking condonation of delay. 3. In this appeal, the Revenue has raised the following grounds: - 1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was correct in not considering that the instant case is covered by the judgement of Delhi High Court in the case of Skylight Hospitality LLP v/s ACI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 26,48,49,780/-. In its appeal before the learned CIT(A), the assessee apart from challenging the addition made by the AO on merits also raised grounds challenging the validity of the notice issued under section 148 of the Act. As per the assessee, the notice was issued in the name of M/s. Modern Trading Business Pvt. Ltd. on 31.03.2021 is not valid as the said entity ceased to exist after its merger with M/s. Carron Investment Pvt. Ltd., pursuant to the order passed by the Hon ble NCLT on 27.07.2017. The assessee further submitted before the learned CIT(A) that the fact of the merger was duly intimated to the Department vide letter dated 21.03.2018, wherein the assessee also requested for deactivation of the PAN issued in the name of M/s. Modern Trading Business Pvt. Ltd. 6. The learned CIT(A), vide impugned order, after considering the decision of the Hon ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd., reported in (2019) 416 ITR 613 (SC), held that the assessment completed on a non-existent entity is void ab initio as the notice under section 148 was issued on a non-existent entity. Accordingly, the learned CIT(A) quashed the impugned order and decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement 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. 35. For the above reasons, we find no merit in the appeal. The appeal is accordingly dismissed. 6.1.6 To sum up, on the basis of the following facts, the assessment completed on a non-existent company is treated as ab initio void as it has no legal validity: 1) As per the orders passed by the NCLT, Mumbai Bench, Mumbai, dt. 19/07/2017 regarding amalgamation of the companies. 2) Assessee/appellant's submission, dt.21/03/2018 before jurisdictional AO requesting the to deactivate the PAN AABCH4502L consequent on amalgamation of the companies vide order, dt. 19/07/2017 of the NCLT, Mumbai Bench, Mumbai. 3) In spite of the above, notice u/s. 148 of the Act was issued and the assessment reopened u/s. 147 on 31/03/2021 on the PAN AABCH4502L in the name of the non-existing company M/s. Modern Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Jurisdictional High Court wherein the Hon ble Court held that notice issued under section 148 of the Act on a non-existing entity is illegal, invalid and non-est. 9. At the outset, insofar as the decision of the Hon ble Supreme Court in Mahagun Realtors Pvt. Ltd. (supra), on which reliance has been placed by the learned DR, we find that in the facts of that case, no intimation regarding the fact of amalgamation was filed before the Revenue and the taxpayer in that case also suppressed the fact of amalgamation in the return filed under section 153A of the Act post amalgamation. The Hon ble Supreme Court further notes that the conduct of the taxpayer, commencing from the date of the search took place and before all forums reflected that it consistently held itself as the assessee. Thus, in its peculiar facts, the Hon ble Supreme Court decided the issue against the taxpayer. However, in the present case, as noted in the foregoing paragraphs, after the merger of M/s. Modern Trading Business Pvt. Ltd. with M/s. Carron Investment Pvt. Ltd. vide order dated 19.07.2017 passed by the Hon ble NCLT, the assessee filed a letter dated 21.03.2018 before the Income Tax Officer, Ward-1(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 515/416 ITR 613 (SC), as also in a decision of this Court in Teleperformance Global Services (P) Ltd. v Assistant Commissioner of Income Tax, Central Circle 25(1), New Delhi [2021] 127 taxmann.com 46/281 Taxman 331/435 ITR 725 (Bombay) Mr. Mistry relying on these decisions, would submit that it is an undisputed position that, in view of the Order passed by the National Company Law Tribunal, the scheme of amalgamation was approved, whereunder the Assessee - Uber India Research and Development Private Limited stood merged with the Petitioner, hence, the Assessee was a non existent entity. He submits that an intimation to this effect furnished to the Assessing Officer has not been taken into consideration before the impugned notice under Section 148 of the Act was issued by Respondent No.1. 9. On the other hand, Mr. Sharma, the learned Counsel for the Revenue, on instructions, would not dispute that the Assessee (Uber India Research and Development Private Limited) stood amalgamated with the Petitioner and therefore the assessee 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of amalgamation approved by the NCLT, there was no warrant in law for the Assessing Officer to proceed against a non-existent company. The relevant observations of the Supreme Court in the said decision are required to be noted which reads thus:- 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed 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 Enfotainme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Technology India Ltd. [2016] 380 UTE 272 Karnataka high court has held, if a statutory notice is issued in the name of non-existing entity, entire assessment would be nullity in the eye of law. It has also been so held by Delhi high court in the case of Pr CIT v Nokia Solutions Network India (P) Ltd. [2018].[2018] 90 taxmann.com 369/253 Taxman 409/402 ITR 21 (Delhi). 13. In the light of the above discussion, we are of the clear opinion that there was neither a legal basis nor jurisdiction with Respondent No.1 to issue the impugned notice under Section 148 A(b) and pass an order thereon and further to issue the impugned notice under Section 148 to a non-existing entity- Uber India Research and Development Private Limited . Such notices at the threshold were illegal, invalid and non-est. 14. In the light of the above discussion, the Petition needs to succeed. It is accordingly allowed in terms of prayer clause (a). 15. We however clarify that, except for what has been held hereinabove, we have not delved on any other issue on the entitlement of the Revenue and/or any of the rights and liabilities of the Petitioner, which are expressly kept open. 11. In the present case, it is discer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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