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TMI Blog2025 (3) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of M/s BEC Finance Pvt. Ltd., already amalgamated with M/s BEC Impex International Pvt. Ltd. on 20th December 2004, is invalid and bad in law and consequently the reassessment framed in the name of non-existing entity, i.e. BEC Finance Pvt. Ltd., is arbitrary, unjust and not sustainable in law. 3. That without prejudice to Grounds No. 1 and 2 above, the CIT (Appeals) has erred on facts and under the law in passing the ex-parte order without affording to the assessee a reasonable opportunity of being heard and consequently the order as passed by CIT (Appeals) in an ex-parte manner without deciding the issue on merit, is arbitrary, unjust and bad in law. 4. That the addition of Rs. 17,62,037/- being the alleged transaction with M/s Unistyle Impex Pvt. Ltd. and M/s Kapil Impex Pvt. Ltd. is arbitrary, unjust and made without proper enquiry and at any rate very excessive. 5. That the above grounds of appeal are independent and without prejudice to one another. Your appellant craves leave to add, alter, amend or withdraw any of the grounds of appeal at the time of hearing." 2. the facts of the case may be summarized as that the statutory notice u/s 143(2) alongwith u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies and all concerned and DOTH APPROVE the said scheme of arrangement to be effective from the appointed dated i.e. 20/12/2004. THIS COURT DOTH FURTHER ORDER 1. That all the property, rights and powers of the Transferor company specified in the First, Secund and Third parts of the schedule-II thereto be transferred without further act or deed respectively to the Transferee company and accordingly the same shall pursuant to section 394 (2) of the Companies Act, 1956 be transferred to and vest respectively the Transferee company for all the estate and interest of the Transferor company therein but subject nevertheless to all charges now affecting the same; and 2. That all the liabilities and duties of the Transferred company be transferred without further act of see respectively to the transferee company become the liabilities and duties of the Transferred company; and 3. That all proceedings now pending by or against the Transferor company be continued he or against the Transferee company; and 4. That the Transferor Company and Transferred company do without further application allot to such members of the Transferor company herein the shares in the Transferee Company to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances cannot operate as an estoppel against law. 9. Likewise, Hon'ble Jurisdictional Delhi High Court in the case of CIT vs. Sony Mobile Communication India Pvt. Ltd., (2023) 456 ITR 753 (Delhi), held some guiding principle which is reproduced as under: "21. In so far as Mahagun Realtors is concerned, as observed hereinabove, the court, once again, noticed the judgment rendered in Spice Enfotainment. As regards Maruti Suzuki, the court in Mahagun Realtors made the following crucial observations (page 214 of 443 ITR): "In Bhagwan Dass Chopra v. United Bank of India (1988) 1 SCR 1088; AIR 1988 SC 215; [1987] Suppl. SCC 536 it was held that in every case of transfer, devolution, merger or scheme of amalgamation, in which rights and liabilities of one company are transferred or devolved upon another company, the successor-in-interest becomes entitled to the liabilities and assets of the transferor company subject to the terms and conditions of contract of transfer or merger, as it were. Later, in Singer India Ltd. v. Chander Mohan Chadha [2004] 122 Comp Cas 468 (SC); [2004] Supp (3) SCR 535 this court held as follows (page 477 of 122 Comp Cas): 'there can be no doubt that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 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.' The court, undoubtedly noticed Saraswati Industrial Syndicate Ltd. v. CIT [1990] 186 ITR 278 (SC). Further, the judgment in Spice (supra) and other line of decisions, culminating in this court's order, approving those judgments, was also noticed. Yet, the legislative change, by way of introduction of section 2(1A), defining 'amalgamation' was not taken into account. Further, the tax treatment in the various provisions of the Act were not brought to the notice of this court, in the previous decisions. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the following facts obtaining in that case: (i) There was no intimation by the assessee regarding amalgamation of the concerned company. (ii) The return of income was filed by the amalgamating company, and in the "business reorganisation" column, curiously, it had mentioned "not applicable". (iii) The intimation with regard to the fact that the amalgamation had taken place was not given for the assessment year in issue. (iv) The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated-company. (v) More crucially, while participating in proceedings before the concerned authorities, it was represented that the erstwhile company, i. e., the amalgamating company was in existence. 23. Clearly, the facts obtaining in Mahagun Realtors do not obtain in this matter." 10. The Ld. DR relied upon the judgment of Hon'ble Supreme Court of India in the case of Principal Commissioner of Income Tax vs. Mahagun Realtors (P) Ltd., 2022 (Arising out of special leave petition (C) No. 4063 of 2020), in which Hon'ble Supreme Court held that whether corporate death of an entity upon amalgamation per se invalidates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt establish the law that the Ld. AO must be informed regarding the amalgamation during the said assessment year, which was duly done in the present case. It is humbly submitted, that vide letters dated 25.10.2017 and 12.12.2017 (filed on 14.06.2024) all aforesaid factors are in the assessee's favour, an intimation of amalgamation was duely communicated, even as evident in the assessment order, return of income was filed in the name of BEC Impex Pvt. Ltd. (amalgamated company), intimation for the relevant assessment year was provided, the assessment order did not have name of the amalgamated company and nowhere in the proceedings was it represented that the amalgamating company was in existence. Furthermore, as held in Mahagun (supra), mere participation in proceedings by the amalgamated company will not act an estoppel. 15. Furthermore, the Ld. AO observed that the assessee's PAN was active during the period under consideration, and in this regard the Ld. AR submitted that this argument of the Revenue has been rejected by the Bombay High Court in CLSA India Pvt. Ltd. v. Deputy Commissioner of income Tax and Others reported in 452 ITR 55 (Bom). In the aforesaid case, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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