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TMI Blog2024 (4) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. AO not only to issue notices in the case of amalgamate company to pass the order in the name of the existing entity in which erstwhile company has been amalgamated. Accordingly, the entire assessment order is bad in law because order in the case of non-existing entity cannot be sustained at all. Thus, assessment order is hereby quashed and appeal of the assessee is allowed. - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER For the Assessee : Shri Neelkanth Khandelwal For the Revenue : Smt. Sanyogita Nagpal ORDER PER AMIT SHUKLA (J.M): The aforesaid appeals have been filed by the assessee as well as by the Revenue against order dated 15/11/2022 passed by NFAC, Delhi for the quantum of assessment passed u/s. 143(3) for the A.Y. 2018-19. 2. At the outset, appeal of the assessee is delayed by 19 days. In the petition of condonation of delay following reasons have been given:- (a) The National Faceless Appeal Centre (the NFAC) passed an order dated 15.11.2022 (the impugned order) in the case of our clients for income-tax assessment year 2018-19. served through e-filing portal on even date (b) Our clients were not aware that the NFAC has passed the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of Rs. 5,32,10,00,137/-), in terms of Section 44AD of the Act, which was without any basis, and further, without appreciating that the provisions of Section 44AD are not applicable to Assessee's case, 4. Because in the facts and circumstances of the case and in law, the CIT(A) has erred in confirming the action of the A.O. in disallowing a sum of Rs. 1,32,56,01,210/- under Section 40(a)(ia) of the Act. 5. Because in the facts and circumstances of the case and in law, the CIT(A) has failed to appreciate that the recipients of the sub-contracts have duly disclosed and offered to tax the income earned by them on the amounts of sub-contracts received by them, and therefore the Assessee cannot be deemed to be an assessee-in-default in terms of second proviso to Section 40(a)(ia) of the Act. 6. Because, without prejudice to what has been stated above, the CIT(A) has failed to appreciate that once the income of the Assessee has been estimated after rejection of the books of accounts, the A.O. could not make disallowance of the same books of account by invoking provisions of Section 40(a)(ia) of the Act. 4. Whereas the Revenue has raised the following grounds:- 1. On the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(2) is invalid and bad in law and consequently, the assessment order is also bad in law and needs to be quashed. 2. The Officer at National Faceless Assessment Centre (hereinafter referred to as the Assessing Officer) erred in framing the assessment order on a non-existent entity. The appellants contend that on the facts and in the circumstances of the case and in law, the impugned assessment order is framed in the name of a non-existent entity (dead person) inasmuch as the erstwhile company (the appellants) is amalgamated with Patil Construction Infrastructure Limited with effect from 1st April, 2018 and hence, the assessment order framed in the name of a non-existent entity is bad in law and needs to be quashed. The appellants crave leave to add to, alter and/or amend therefore stated grounds of appeal. 6. Since the legal issue raised by the assessee challenges the very validity of the order, that order has been passed in the case of a non-existent entity as much as erstwhile company M/s. M.B. Patil Constructions Ltd. has been amalgamated with Patil Constructions and Infrastructure Ltd w.e.f. 01/04/2018 and therefore, the issuance of notice u/s. 143(2) as well as the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued in the name of M.B. Patil Construction Ltd. and on the PAN of erstwhile company. Before us ld. Counsel submitted that once intimation was given to the ld. AO on 02/08/2018 and again on 23/01/2019, then there was no occasion to issue notice on an non-existing entity and consequently, passing the assessment order in the case of erstwhile company which was no longer in existence at the time of passing of the order. In support of his contention, he strongly relied upon the judgment of the Hon ble Gujarat High Court in the case of Inox Wind Energy Ltd vs. Add.CIT reported in (2023) 454 ITR 162 wherein the Hon ble High Court has taken note of the decision of the Hon ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd (2019) 416 ITR 613 and PCIT vs. Mahagun Realtors (P) Ltd. reported in 287 taxmann 566. He also relied upon the Coordinate Bench decision of ITAT in the case of ACIT vs. M/s. Candor Renewable Energy Pvt. Ltd in ITA Nos. 2561/Mum/2021 2560/Mum/2021 and others order dated 19/10/2022, wherein the Tribunal has discussed both the judgments of the Hon ble Supreme Court including M/s. Mahagun Realtors (P) Ltd.(supra) and have explained entire concept of law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to assessment done in the name of non-existent entity. The plea that the assessee was not in existence was never taken throughout the appellate proceedings before the CIT(A). 3.3.2 It is seen from the original Form no 36 filed before the ITAT on 16-01- 2023 that the said appeal had also been filed in the name of M B Patil Construction Ltd. The grounds of appeal did not contain any ground relating to assessment done in the name of non-existent entity. It was only on 04-09-2023 that the assessee revised the Form no 36 by mentioning the name of the amalgamated entity 3.3.3 Thus, the amalgamating entity ie MB Patil Construction Ltd has held out itself as an existent entity throughout the first appellate proceedings. Though the entity ceased to be in existence, in law, yet appeals were filed on its behalf before the CIT(A) and the ITAT. After fully participating in the first appellate proceedings, for the first time, that too eight months after filing of the appeal an additional ground was raised before the ITAT, that the notice u/s 143(2) was issued and assessment order was made on non-existent entity. 3.4 The conduct of the amalgamated company during the assessment proceedings wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding, 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. 5. In the light of the facts of the case discussed vividly in the above paragraphs, it is humbly requested that the additional grounds filed by the assessee be dismissed outright and that the case be heard on the merits. 12. We have heard both the parties and perused the relevant records on the additional ground raised by the assessee. It is not in dispute that M/s. M.B. Patil Constructions Ltd. was amalgamated with M/s Patil Constructions and Infrastructure Ltd. by the order of NCLT dated 29/11/2018 approving the scheme of merger w.e.f. 01/04/2018. It is on record that assessee had communicated this fact vide letter dated 27/07/2018 filed on 02/08/2018, both by erstwhile company M.B. Patil Construction Ltd. and also by M/s. Patil Constructions and Infrastructure Ltd about the proposed scheme of merger and also intimated to the ld. AO that M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-existing entity gets valid. 15. Thus, the issue before us is, whether the assessment in the name of amalgamating company which was not in existence at the time of issuance of notice u/s. 143(2) and passing of the assessment order is a valid order or not? First of all, simply because the return was filed under the name of amalgamating company and therefore, computer generated notice u/s. 143(2) if it has been issued in the name of amalgamating company, validates the entire proceedings cannot be sustained. The NCLT vide order dated 29/11/2018 approved the scheme of merger w.e.f. 01/04/2018, so at least post 29/11/2018, when parties came to know about the merger, then locus standi of amalgamating company ceases to exist and all the proceedings then has to be in the name amalgamate company. It is the duty of the ld. AO that once the intimation has been given to him twice and brought on record, then he should have ensured that notice issued by him u/s. 143(2) is in the name of correct entity and not on a non-existing entity which already stood amalgamated. This co-ordinate Bench in the case of M/s. Candor Renewable Energy Pvt. Ltd (supra) after discussing the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorized sub-letting of the premises by the transferor company. The transferee company set up a defense that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including leasehold and tenancy rights held by the transferor company blended with the transferee company, therefore, the transferee company was legal tenant and there was no question of any subletting. The Hon'ble Apex Court held that under the order of amalgamation made on the basis of the High Court's order, the transferor company ceased to be in existence in the eye of law and it effected itself for all practical purposes. United Kingdom Court in the case of M.H. Smith (Plant Hire) Ltd. Vs. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA), in the context of dissolution of a company that once a company is dissolved it becomes a nonexistent party and therefore no action can be brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that the exemption from tax liability claimed by the appellant-assessee was chargeable to tax under section 41(1) of the Act. The High Court held that, on the amalgamation of the two companies, neither of them ceased to exist; instead both the amalgamating and amalgamated companies continued their entities in a blended form. It further held that the amalgamated company was a successor-in-interest of the amalgamating company and since the assets of both the companies were merged and blended to constitute a new company, the liabilities attaching thereto must, therefore, be on the amalgamated company. On these findings, the High Court held that the amalgamated company, namely, the assessee, was liable to pay tax on Rs. 58,735. The Apex court considered the question whether, on the amalgamation of the Indian Sugar Company with the appellant company, the Indian Sugar Company continued to have its identity and was alive for the purposes of section 41(1) of the Act. The Apex court observed as under :- Generally, where only one company is involved in a change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganization or scheme of arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that after the amalgamation, the amalgamating company loses its identity and cannot be assessed as per the provisions of the Income Tax act, 1961. Spice Entertainment Ltd vs. CST 2012 (280) ELT 43 (Del) [affirmed by SC] 19. Thereafter, the Division bench of Delhi High Court in the case of Spice dealt with the question as to whether an assessment in the name of an amalgamating company which has been amalgamated and has been dissolved is null and void or whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The Hon ble Delhi High Court held as follows: (a) Spice (amalgamating company) got amalgamated with M Corp Pvt. Ltd. It was the result of the scheme of the amalgamation filed before the Company Judge of Delhi High Court which was duly sanctioned vide orders dated 11th February, 2004. With amalgamation made effective from 1st July, 2003, Spice ceased to exist. That is the plain and simple effect in law. (b) The scheme of amalgamation itself provided for this consequence, inasmuch as simultaneous with the sanctioning of the scheme, Spice also stood dissolved by specific order of Delhi High Court. With the dissolution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the landmark judgment of Maruti Suzuki (Supra). The facts of the said case were as follows: a) Assessee - Suzuki Power-train India Limited (SPIL), was a joint venture between Suzuki Motor Corporation (SMC) and Maruti Suzuki India Ltd (MSIL). b) SPIL filed return declaring certain taxable income, which was processed u/s 143(1). c) Subsequently, SPIL (Amalgamating Company) was amalgamated with 'MSIL' (Amalgamated Company) with effect from 1-4-2012 under Court orders on 29.01.2013. d) MSIL intimated to the AO on 2.04.2013. e) Notice under section 143(2) dated 26.09.2013 was issued to SPIL, non-existent entity. f) Thereafter, MSIL participated in assessment proceedings of SPIL. g) The assessment order under section 143(3), read with section 144C (1) of the Act was passed in the name of SPIL (amalgamated with MSIL) . The assessee argued before the tax/ appellate authorities that an assessment order passed in the name of a non-existent entity was void ab initio, since after amalgamation, the amalgamating company ceases to exist. Tax Department was of the view that since name of both the entities were mentioned in the order, the assessment order c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an eligible assessee , in terms of section 144C(15) (b) of the Act. Consequently, there was no requirement to pass a draft assessment order/reference to DRPetc.; g) The final assessment order dated 31 October 2016 is beyond limitation in terms of Section 153(1) read with Section 153 (4) of the Act. h) The assessment framed in the name of the amalgamating Company is invalid [refer: Spice Entertainment vs. CIT, CIT v. Dimension Apparels (P.) Ltd. [2015] 370 ITR 288 (Delhi); affirmed by Hon'ble Apex Court vide Civil Appeal No. 3125 of 2015, CIT v. Micron Steels (P.) Ltd. 372 ITR 386 (Delhi), CIT v. Micra India (P) Ltd. 231 Taxman 809 (Delhi)]. i) Assessment framed in the case of a non-existent entity is non-est in the eyes of law [refer: Pr. CIT vs. BMA Capfin Ltd. [2018] 100 taxmann.com 329 (Delhi) (Revenue's SLP dismissed against the same in Pr. CIT vs. BMA Capfin Ltd. [2018] 100 taxmann.com 330/[2019] 260 Taxman 89 (SC)] The Apex Court after taking into consideration submissions of both sides held as follows: a) Under the approved scheme of amalgamation, the transferee assumed the liabilities of the transferor company, including tax liabilities; b) The consequence of the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date for filing the revised return was 31.03.2008, after the amalgamation order came into operation. iv. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies. v. When search and seizure of the Mahagun group took place, no indication was given about the amalgamation. vi. A statement made on 20.03.2007 by Mr. Amit Jain, MRPL's managing director, during statutory survey proceedings under Section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPL's account. The specific amount admitted was 5.072 crores, in the course of the statement recorded. vii. The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under Section 132 of the Act, on 27.08.2008. viii. A total of Rs. 30 crores cash, which was seized- was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on 27.08.2008 in the course of the search operation, when a statement of Mr. Amit Jain was recorded under Section 132 (4) of the Act. ix. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on 28.05.2010. Before that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r terminates any assessment proceedings. There are analogies in civil law and procedure where upon amalgamation, the cause of action or the complaint does not per se cease - depending of course, upon the structure and objective of enactment. Broadly, the quest of legal systems and courts has been to locate if a successor or representative exists in relation to the particular cause or action, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall. iii. The combined effect, therefore, of Section 394 (2) of the Companies Act, 1956, Section 2 (1A) and various other provisions of the Income Tax Act, is that despite amalgamation, the business, enterprise and undertaking of the transferee or amalgamated company- which ceases to exist, after amalgamation, is treated as a continuing one, and any benefits, by way of carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee. Therefore, unlike a winding up, there is no end to the enterprise, with the entity. The enterprise in the case of amalgamation, continues. iv. There is no doubt that MRPL amalgamated with MIPL had ceased to exist thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the CIT, and a cross appeal was filed before ITAT. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditor's report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) - but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The AO, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Decor Pvt. Ltd.). viii. The mere choice of the AO in issuing a separate order in respect of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in the counter affidavit filed before the Hon'ble Apex Court, it has been affirmed by Shri Amit Jain, who has been described in the affidavit as Director of M/s. Mahagun Realtors (P) Ltd.. It was in this background, the Hon'ble Court in para 33 observed as under - 33. There is no doubt that MRPL amalgamated with MIPL and ceased to exist thereafter; this is an established fact and not in contention. The respondent has relied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in the name of the amalgamating company is void and illegal. The facts of present case, however, can be distinguished from the facts in Spice and Maruti Suzuki on the following bases. 26. Therefore, the Supreme Court merely distinguished the facts in Spice and Maruti, while continuing to agree with the fundamental principle that on amalgamation, the amalgamating entity ceases to exist. Thereafter, the Court in paras 34 onwards, held as under: a) No intimation was given to the AO for A.Y 2006-07 [refer para 34]; b) Return filed, pursuant to notice, suppressed the fact of amalgamation. The return was filed in the name of MRPL. Further in Business Reorganization' column it was men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the merger of companies and yet the assessment order was passed in the name of the non-existent entity. However, in the present case, the assessee failed to inform the assessing officer about the amalgamation for assessment year 2006-07 (year in dispute), though disclosure was made for subsequent years (AYs 2007-08 and 2008-09). The return of income filed on 28.05.2010 (post amalgamation) pursuant to notice under section 153A was filed in the name of MRPL and the fact of business reorganization was mentioned as 'not applicable in the return form. c) In relied upon cases, the amalgamated companies participated in the assessment proceedings before the tax department in their own capacity, due to which the Apex Court affirmed that participation of amalgamated company shall not be regarded as estoppel against law. In the present facts, the participation in the assessment proceedings was by MRPL which held itself as MRPL. d) The relied upon judgment of Saraswati Syndicate (Supra) was decided in relation to assessment issues when the amalgamation was not separately defined under the Act. Specific definition of 'amalgamation has been incorporated in section 2(1 A) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee. Therefore, unlike a winding up, there is no end to the enterprise, with the entity. The enterprise in the case of amalgamation continues. e) 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. 29. The Apex Court with the aforesaid observations, quashed the order of the High Court which held that the assessment order passed in the name of non-existent entity is invalid, and restored the revenue's appeal along with assessee's cross objections to the file of the Hon ble Tribunal to decide the issues on merits other than nullity of assessment order. 30. The aforesaid judgment of Hon ble Supreme Court in the case of Mahagun Realtors Pvt. Ltd. (supra) in our humble opinion, nowhere disagrees with the principles laid down by the Hon ble Apex Court in the case of Maruti Suzuki India Ltd. (supra) and Spice Entertainment Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal. Even the assessment order though which has been captioned as M/s Bhadrawati Ispat Energy Ltd. (merged with M/s. Reliable Record Keepers Pvt. Ltd. which has now known as M/s. Candor Renewable Energy Private Limited is in fact in the name of non-existing entity only. Therefore, the reasons and principles laid down by the Hon ble Apex Court in the case of Maruti Suzuki India Ltd. (supra) is applicable and accordingly assessment orders passed by the AO are invalid and non est. 32. Accordingly, we hold that the entire assessment order is bad in law and therefore has rightly been quashed by the Ld. CIT(A). The aforesaid findings of the Ld. CIT(A) as incorporated supra is not only correct in law but also the facts and hence the order of Ld. CIT(A) is confirmed. Accordingly, the grounds raised by the revenue are dismissed for both the AY 2013-14 and 2014-15. 16. Exactly on same line Hon ble Gujarat High Court in the case of Inox Wind Energy Ltd vs. Add.CIT reported in (2023) 454 ITR 162 on almost similar kind of fact which in brief were as that, the assessee company was a wholly owned subsidiary of GFL. On 25-01-2021, the composite scheme of arrangement between INOX GFL and assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law was there to consider. 18.2 The decision also makes it quite clear that the assessment when initiated in the name of the transferor company and before it gets completed, if the company goes into amalgamation and the Revenue still continues to assess the transferor company and not the transferee company, it is a nullity. 19. The decision of the Apex Court in the case of Pr. CIT v. Mahagun Realtors (P.) Ltd. [2022] 137 taxmann. Com 91/287 Taxman 566, requires serious consideration at this stage. It was a case where no indication about amalgamation was given by the assessee during search operations and return filed pursuant to notice issued under section 153A suppressed the fact of amalgamation. Since the conduct of the assessee, commencing from the date of search and before all forums reflected that it consistently held itself as assessee, assessment order passed in the name of the assessee was valid. The assessee company MRPL was amalgamated with MIPL with effect from 1-42006 vide order of the High Court. Post amalgamation, search was conducted at premises of assessee-amalgamating company and discrepancies were noticed in the books of accounts. The Assessing Officer issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was issued against the company, which was held to be substantive illegality and not procedural violation of the nature adverted to in section 292B. 20.2 In Maruti Suzuki India Ltd. (supra), the Court had further noticed that the Assessing Officer was informed of the amalgamating company having ceased to exist as a result of approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The legal principle that had been applied was that the amalgamating entity ceases to exist against the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against the law. While so doing the Court had also relied on the decision of Spice Entertainment Ltd. (supra) and the Court held that there was no reason as to why to take a different view. There is a value which the Court must abide by in promoting the interest of certainty in tax litigation. The view taken by the Apex Court in relation to the respondent for Assessment Year 2011-12 was found to be necessary to be adopted in respect of the appeal, as otherwise, the same would result into uncertainty and displacement of settled expectation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by MRPL and after considering the special auditor's report, brings specific amounts to tax in the search assessment order. 20.5 All these clearly indicate that the order adopted a particular method of expressing the tax liability. And hence, the Court held that whether the corporate death of an entity upon amalgamation per se invalidates an assessment order, ordinarily cannot be determined on a bare application under section 481 of the Companies Act, but would depend on the terms of amalgamation and the facts of each case. In such circumstances, the Apex Court had not sustained the High Court's order and set it aside. 21. Reverting to the facts of the matter on hands and equating the same with the ration laid down by the Apex Court in the case of Maruti Suzuki India Ltd. (supra) and Mahagun Realtors (P.) Ltd. (supra), Inox Renewables Ltd. (the transferee company) was incorporated on 11-10-2010 under the Companies Act. For the Assessment Year 2018-19 the return of income was filed declaring the total income at nil. The case for scrutiny was selected and the notice under section 143(2) was issued on 23-9-2019. On 25-1-2021, the composite scheme of arrangement between Inox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Order passed by NCLT dated 25th January, 2021 along-with copy of the Scheme is attached herewith for ready reference. This is for your information and needful consequential actions in the matter. 21.1 This makes it abundantly clear that the scheme has been made effective from 9-2-2021 with effect from the appointed date of 1st April, 2020 for Part-II and 1st July, 2020 for Part III of the scheme. 21.2 . 21.3 Thereafter, a communication was sent to the petitioner by Joint Commissioner of Income Tax, National Faceless Assessment Centre, Delhi intimating that the Board of Directors of the Company, as a part of business restructuring, has approved composite scheme of arrangement as per the details given at Part A and Part B. After various queries, which had been raised, certain documents were requested to be taken on record. Thereafter, on 25-9-2021, in reply to the show cause notice dated 23-9-2021, justifications were given as to why the assessment should not be completed as per the draft assessment order. It also complained of less time given for compliance as the email was received on 23-9-2021 and the time given was only upto 25-9-2021, which was less than two days. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it had virtually implored to discontinue the proceedings against the non-existing company. 23. On the issue of prejudice also, we are convinced that when the proceedings continued against the non-existing company, if fort was held for some time by the amalgamated company to ensure that no further damage is caused, this participation surely cannot be held against it. Moreover, amalgamated company, with all its obligations, would file return of income and also continue the process, but once assessment order is passed against non-existing company, there would be no cure, even for filing of the appeal. Once it is found that the assessment is framed, in the instant case, in the name of the non-existing company, as held hereinabove, that surely does not remain the procedural irregularity, which can be cured under the provision of section 292B of the Act. 24. The assessment framed in the name of the existing company requires to be quashed. This Court has chosen to invoke the jurisdiction under Article 226 of the Constitution of India although the plea of alternative remedy of an appeal, is much emphasized upon by the respondent. Considering the fact that there is a non-existing compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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