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TMI Blog2025 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 April 2020, the Petitioner informed the Income Tax Authority of the merger effective 01 April 2018. This intimation dated 27 August 2020 is at Exhibit-B (page 34 of the paper book in Writ Petition No.6076 of 2023). This intimation bears the stamp and endorsement of receipt from the office of the Deputy Commissioner of Income Tax, Circle 1(1), Pune. In the return filed on behalf of the Respondents, no dispute is raised about receiving this intimation on 27 August 2020. 7. On 31 March 2023, the Assistant Commissioner of Income Tax, Circle 1(1), Pune, issued a notice dated 31 March 2013 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 31 March 2023 under Section 148 of the IT Act, 1961 were issued only in the name of "Amanora Future Towers Private Limited" 15. The contents of the impugned notice dated 31 March 2023 at Exhibit 'C' page 35 in Writ Petition No. 6076 of 2023 are transcribed below for the convenience of reference:- "EXHIBIT-C GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), PUNE To AMANORA FUTURE TOWERS PRIVATE LIMITED 917/19A CITY CHAMBERS, F.C. ROAD PUNE PUNE 411004, Maharashtra India PAN : AAKCA3074H A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, 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 explanation in paragraphs 4.2 and 4.3 of the affidavit filed by Dr. Ganesh S. Rakh, Joint Commissioner of Income Tax (OSD), in these Petitions. To appreciate the contention, Paragraphs 4.2 and 4.3 are transcribed below for the convenience of reference: - "4.2. With reference to the contents of Para No. 3 A of the Writ Petition, notice issued u/s. 148 of the Income-tax Act, 1961 (hereinafter referred as 'the Act') dated 31/03/2023 issued by the Respondent No. 1 in the case of the petitioner for A. 2013-14. I deny that the notice issued Υ by respondent No. 1 is bad-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the Petitioner states that the Respondent was well aware of the fact that Amanora Future Tower Private Limited was merged with the Petitioner's company i.e. City Corporation Limited. To that, I reiterate my comments in the earlier paragraphs of this reply and agree that the amalgamation of the company was brought to notice of the Department. I say that the notice was issued on the non-existing company due to technical glitch in the system wherein no field in the notice u/s 148 of the Act is editable." 21. The averments in the above paragraphs support the Petitioner's case. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction was assumed by the assessing officer, was issued to a non-existent company. The assessment order was issued against the amalgamating company. "This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B". 27. The argument now sought to be raised by Mr Suresh Kumar based on Skylight Hospitality LLP (supra) was considered and rejected by the Gujarat High Court in Anokhi Realty (P) Ltd. Vs. Income-tax Officer (2023) 153 taxmann.com 275 (Gujarat). In Adani Wilmar Ltd. Vs. Assistant Commissioner of Income-tax 2023 150 taxmann.com 178 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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