9911796707
TMI Blog2025 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sham Walve, a/w Mr Sanket S. Bora, Ms Vidhi Punmiya, Mr Bhavik Chheda, i/b. SPCM Legal,. For the Respondents in all Petitions: Mr Suresh Kumar,. JUDGMENT (PER MS SONAK J) :- 1. Heard learned counsel for the parties. 2. Rule in each of these Petitions. The rule is made returnable immediately at the request of and with the consent of learned counsel for the parties. 3. The learned counsel for the parties agree that all these Petitions can be disposed by a common order since they involve substantially common issues of law and fact. The learned counsel also agree that Writ Petition No.6076 of 2023 be treated as lead Petition. 4. Writ Petition No. 6076 of 2023 concerns Assessment Year 2013-14. The remaining Writ Petitions are concerned with Assessment Years 2014-15, 2016-17, 2017-18, 2018-19 and 2019-20 respectively. 5. All these Petitions are instituted by "City Corporation Limited" [CCL], which is engaged in constructing and developing infrastructure facilities. In terms of the NCLT's order dated 27 April 2020, the CCL got merged with its wholly owned subsidiary "Amanora Future Tower Pvt. Ltd." (AFTPL), with effect from 01 April 2018. 6. By communication dated 27 Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospitality LLP vs Asstt. CIT (2018) 92 taxmann.com 93/254 Taxman 390 (SC). He submitted that, in this case, the Delhi High Court upheld a notice issued to the company that had already merged. Mr. Suresh Kumar Accordingly urged that these Petitions may be dismissed. 12. Rival contentions now fall for our determination. 13. In all these Petitions, the merger between City Corporation Limited and Amanora Future Towers Private Limited, which was effective from 01 April 2018, is not disputed. This merger was based on the NCLT's order dated 27 April 2020. 14. There is also no dispute about the Petitioner, vide a communication received by the Income Tax Department on 27 August 2020 informing about the merger effective 01 April 2018. The communication, along with an endorsement from the office of the Deputy Commissioner of Income-tax, Circle 1(1), Pune, is placed on record at Exhibit-b (page 34 of the paper book in Writ Petition No.6076 of 2023), as also in the connected Petitions. In the affidavit in reply filed, no dispute was raised about the department not receiving the intimation on 27 August 2020 or about the department being unaware of the merger. Still, the impugned notices dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme, the jurisdictional notice was issued only in its name. The Court held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the merged entity ceases to exist upon the approved merger scheme. Participation in the proceedings by the petitioner company into which the merged company had merged or amalgamated could not operate as an estoppel against the law. 19. In Ubber India Systems (supra), the Coordinate Bench held that where by virtue of an order passed by the NCLT, the assessee company stood amalgamated with the petitioner, notice issued under Section 148A(b) and Section 148 to the assessee, which was a non-existent company was illegal, invalid and non-est. Similarly, in Alok Knit Exports Ltd (supra), another Coordinate Bench where the Assessing Officer had committed a fundamental error by issuing notice under Section 148 of the IT Act in the name of an entity which had ceased to exist because of it having merged with the petitioner company, the stand of the Assessing Officer that this was only an error which could be corrected under Section 292B could not be sustained. 20. Mr Suresh Kumar, however, relied upon the expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s City Corporation Ltd.)'. So, considering the above facts and after verifying that Amanora Future Towers Private Limited was merged with City Corporation Limited, the approval was taken from competent authority in the name of Amanora Future Towers Private Limited (PAN:AAKCA3074H) which merged in City Corporation Limited (PAN:AACCC2820K). A copy of the same approval is attached herewith for kind reference as Exhibit-R1. The same copy was also shared with petitioner alongwith notices issued u/s. 148 of the Act. All the internal procedure has been communicated with the name of resultant entity. However, due to non-linking of amalgamating entity's PAN to amalgamated entity's PAN, and non-availability of modification option in the 148 notice before issuance, notice u/s 148 was generated through system in the name of Amanora Future Towers Private Limited. As such, the approval was taken in the name of existing entity thus; the notice should have been issued in the name of resultant entity. Thus, Hon'ble Court is requested to direct petitioner to treat the notice as good as in the name of existent entity. 4.3. With reference to the contents of Para No. 3 B of the Writ Petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being akin to those in Skylight Hospitality LLP (supra) cannot be accepted. Except for submitting that the facts are similar or comparable, nothing was shown to us based upon which such a submission could be entertained, much less sustained. In any event, the Hon'ble Supreme Court, in the case of Maruti Suzuki (supra), considered the Delhi High Court's decision in Skylight Hospitality LLP (supra) and held that the same was delivered "in the peculiar facts of the case". In fact, even the Delhi High Court had clarified that the decision was in the case's peculiar facts. 26. In that case, there was substantial and affirmative material and evidence on record to show that issuing the notice in the name of the dissolved company was only a mistake. The Court held that the Special Leave Petition filed by the Skylight Hospitality LLP (supra) against the judgment of the Delhi High Court rejecting its challenge was dismissed in the peculiar facts of the case, which weighed with the Court in concluding that there was merely a clerical mistake within meaning of Section 292B. The Hon'ble Supreme Court held that in Maruti Suzuki (supra) the notice under Section 143(2) under which jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
