Delhi High Court
Paytm Mobile Solutions Private … vs Assistant Commissioner Of Income Tax & … on 26 September, 2024
Author: Yashwant Varma
Bench: Yashwant Varma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: September 11, 2024
Judgment pronounced on September 26, 2024
+ ITA 116/2023
INTERNATIONAL HOSPITAL LIMITED .....Appellant
Through: Mr. Simran Mehta, Advocate.
versus
DCIT CIRCLE 12 (2) .....Respondent
Through: Mr. Gaurav Gupta, SSC along
with Mr. Shivendra Singh and
Mr. Yojit Pareek, JSCs.
+ W.P.(C) 13807/2022
RELIGARE ENTERPRISES LIMITED (AS SUCCESSOR-IN-
INTEREST OF RELIGARE SECURITIES LTD) .....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Agrawal Ms. Manisha Sharma
and Ms. Somya Jain, Advocates
versus
ASSISTANT COMMISSIONER OF
INCOME TAX & ORS. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Adv.
+ W.P.(C) 11498/2019
BABA LEASE & INVESTMENT PVT LTD .....Petitioner
Through: Mr. Prakash Sinha, Adv.
versus
INCOME TAX OFFICER, WARD NO.
15(1), DELHI .....Respondent
Through: Mr. Siddhartha Sinha, SSC along
Signature Not Verified
ITA 116/2023 & other connected matters Page 1 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
with Ms. Dacchita Shahi and Ms.
Anjuja Pethia, JSCs, Mr. Nring
Chamwibo Zeliang and Ms. Anu
Priya Minz, Advs.
+ W.P.(C) 1894/2020
M/S BABA LEASE & INVESTMENT PVT LTD .....Petitioner
Through: Mr. Prakash Sinha, Adv.
versus
INCOME TAX OFFICER WARD NO
16(1), DELHI .....Respondent
Through: Mr. Anurag Ojha, SSC along
with Ms. Hemlata Rawat and Mr.
V.K. Saksena, JSCs.
+ W.P.(C) 10882/2021
GARTNER INDIA RESEARCH AND ADVISORY SERVICES
PRIVATE LIMITED .....Petitioner
Through: Mr. Vishal Kalra, Ms. Singdha
Gautam, Mr. S.S. Tomar and Mr.
Ankit Sahni, Advs.
versus
THE ASSESSING OFFICER NATIONAL FACELESS
ASSESSMENT CENTRE DELHI & ANR. .....Respondents
Through: Mr. Abhishek Maratha, SSC
with Mr. Parth Semiwal, Mr.
Apoorv Agarwal, Jr SCs, Ms.
Nupur Sharma, Mr. Gaurav
Singh, Ms. Muskan Goel, Mr.
Bhanukaran Singh, Ms. Surabhi
Jain and Mr. Himanshu Gaur,
Advocates.
+ W.P.(C) 13862/2021
BSBK ENGINEERS PRIVATE LIMITED (RESULTING
COMPANY OF VOGUE LEASING AND FINANCE PVT.
LTD.) .....Petitioner
Through: Mr. Amol Sinha, Mr. Kshitij
Signature Not Verified
ITA 116/2023 & other connected matters Page 2 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Garg and Mr. Sourav Verma,
Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL
CIR-13 DELHI .....Respondent
Through: Mr. Sanjay Kumar, SSC along
with Ms. Easha Kadian, JSC.
+ W.P.(C) 13883/2021
BSBK ENGINEERS PRIVATE LIMITED (RESULTING
COMPANY OF MADHULIKA FINANCE COMPANY
LTD.) .....Petitioner
Through: Mr. Amol Sinha, Mr. Kshitij
Garg and Mr. Sourav Verma,
Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL
CIR-13 DELHI .....Respondent
Through: Mr. Sanjay Kumar, SSC along
with Ms. Easha Kadian, JSC.
+ W.P.(C) 13930/2021
RELIGARE ENTERPRISES LTD. (AS SUCCESSOR-IN-
INTEREST OF RGAM INVESTMENT ADVISERS PRIVATE
LIMITED) .....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Agrawal Ms. Manisha Sharma
and Ms. Somya Jain, Advocates
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Signature Not Verified
ITA 116/2023 & other connected matters Page 3 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Adv.
+ W.P.(C) 14005/2021
RELIGARE ENTERPRISES LTD. (AS SUCCESSOR-IN-
INTEREST OF RELIGARE CAPITAL MARKETS (INDIA)
PVT. LTD.) .....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Agrawal Ms. Manisha Sharma
and Ms. Somya Jain, Advocates
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Adv.
+ W.P.(C) 14061/2021
RELIGARE ENTERPRISES LTD. (AS SUCCESSOR-IN-
INTEREST OF RELIGARE ARTS INVESTMENT
MANAGEMENT LIMITED) .....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Agrawal Ms. Manisha Sharma
and Ms. Somya Jain, Advocates
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Adv.
+ W.P.(C) 14062/2021
RELIGARE ENTERPRISES LTD (AS SUCCESSOR-IN-
INTEREST OF RGAM CAPITAL INDIA LTD.) .....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Signature Not Verified
ITA 116/2023 & other connected matters Page 4 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Agrawal Ms. Manisha Sharma
and Ms. Somya Jain, Advocates
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Adv.
+ W.P.(C) 14296/2021
BSBK ENGINEERS PRIVATE LIMITED (RESULTING
COMPANY OF PARISHUDH FINANCE COMPANY PVT.
LTD.) .....Petitioner
Through: Mr. Amol Sinha, Mr. Kshitij
Garg and Mr. Sourav Verma,
Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL
CIR-13 DELHI .....Respondent
Through: Mr. Sanjay Kumar, SSC along
with Ms. Easha Kadian, JSC.
+ W.P.(C) 14306/2021
RANGOLI RESORTS PVT LTD (AS SUCCESSOR IN
INTEREST OF POLYFLEX MARKETING PVT LTD)
.....Petitioner
Through: Mr. Rohit Jain, Mr. Aniket D.
Agrawal, Ms. Manisha Sharma,
Mr. Saksham Singhal and Mr.
Samarth Chaudhari, Advocates
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Signature Not Verified
ITA 116/2023 & other connected matters Page 5 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Through: Mr. Ruchir Bhatia, SSC along
with Mr. Anant Mann, JSC, Mr.
Abhishek Anand and Mr. Pranjal
Singh, Advs.
+ W.P.(C) 14798/2021
MADHU VINIYOG PRIVATE LIMITED (MARIGOLD
NIRMAN PVT. LTD. MERGED WITH PETITIONER)
.....Petitioner
Through: Mr. Rohit Bansal, Adv.
versus
DEPUTY COMMISSIONER OF INCOME TAX CIRCLE
16(1), DELHI & ANR. .....Respondents
Through: Mr. Abhishek Maratha, SSC
with Mr. Parth Semiwal, Mr.
Apoorv Agarwal, Jr SCs, Ms.
Nupur Sharma, Mr. Gaurav
Singh, Ms. Muskan Goel, Mr.
Bhanukaran Singh, Ms. Surabhi
Jain and Mr. Himanshu Gaur,
Advocates.
+ W.P.(C) 4035/2022
QUALCOMM INDIA PVT. LTD. AFTER MERGER OF CSR
TECHNOLOGY INDIA- PRIVATE LIMITED. .....Petitioner
Through: Ms. Ananya Kapoor, Adv.
versus
ASSISTANT COMMISSIONER OF INCOME
TAX CIRCLE 19-1 & ORS. .....Respondents
Through: Mr. Puneet Rai, SSC along with
Mr. Ashvini Kumar and Mr.
Rishabh Nangia, SCs.
+ W.P.(C) 4038/2022
QUALCOMM INDIA PVT. LTD. -AFTER MERGER OF
IKANOS COMMUNICATIONS INDIA PVT. LTD.
.....Petitioner
Through: Ms. Ananya Kapoor, Adv.
Signature Not Verified
ITA 116/2023 & other connected matters Page 6 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE
19 (1), DELHI AND ORS. .....Respondents
Through: Mr. Puneet Rai, SSC along with
Mr. Ashvini Kumar and Mr.
Rishabh Nangia, SCs.
+ W.P.(C) 4103/2022
QUALCOMM INDIA PVT. LTD. -AFTER MERGER OF CSR
INDIA PRIVATE LIMITED. .....Petitioner
Through: Ms. Ananya Kapoor, Adv.
versus
ASSISTANT COMMISSIONER OF INCOME TAX
CIRCLE 19-1 & ORS. .....Respondents
Through: Mr. Puneet Rai, SSC along with
Mr. Ashvini Kumar and Mr.
Rishabh Nangia, SCs.
+ W.P.(C) 5021/2022
NOKIA SOLUTIONS AND NETWORKS INDIA PVT LTD
(SUCCESSOR OF NOKIA SIEMENS NETWORK INDIA
PRIVATE LIMITED) .....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
DEPUTY COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Through: Mr. Abhishek Maratha, SSC
with Mr. Parth Semiwal, Mr.
Apoorv Agarwal, Jr SCs, Ms.
Nupur Sharma, Mr. Gaurav
Singh, Ms. Muskan Goel, Mr.
Bhanukaran Singh, Ms. Surabhi
Signature Not Verified
ITA 116/2023 & other connected matters Page 7 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Jain and Mr. Himanshu Gaur,
Advocates.
+ W.P.(C) 5022/2022
M/S NOKIA SOLUTIONS AND NETWORKS INDIA PVT
LTD (SUCCESSOR OF NOKIA SIEMENS NETWORKS
INDIA PRIVATE LIMITED) .....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
DEPUTY COMMISSIONER OF INCOME TAX,
CIRCLE 16 (1) AND ANR. .....Respondents
Through: Mr. Abhishek Maratha, SSC
with Mr. Parth Semiwal, Mr.
Apoorv Agarwal, Jr SCs, Ms.
Nupur Sharma, Mr. Gaurav
Singh, Ms. Muskan Goel, Mr.
Bhanukaran Singh, Ms. Surabhi
Jain and Mr. Himanshu Gaur,
Advocates.
+ W.P.(C) 5118/2022
M/S NOKIA SOLUTIONS AND NETWORKS INDIA
PRIVATE LIMITED (SUCCESSOR OF NOKIA SIEMENS
NETWORKS INDIA PRIVATE LIMITED) .....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE
16(1) AND ANR .....Respondents
Through: Mr. Abhishek Maratha, SSC
with Mr. Parth Semiwal, Mr.
Apoorv Agarwal, Jr SCs, Ms.
Nupur Sharma, Mr. Gaurav
Signature Not Verified
ITA 116/2023 & other connected matters Page 8 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Singh, Ms. Muskan Goel, Mr.
Bhanukaran Singh, Ms. Surabhi
Jain and Mr. Himanshu Gaur,
Advocates.
+ W.P.(C) 5134/2022
PAYTM MOBILE SOLUTIONS PRIVATE LIMITED ( NOW
MERGED INTO ONE 97 COMMUNICATIONS LIMITED)
.....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE
19(1), DELHI AND ORS. .....Respondents
Through: Mr. Indruj Rai, SSC with Mr.
Sanjeev Menon and Mr. Rahul
Singh, JSCs
+ W.P.(C) 5161/2022
PAYTM MOBILE SOLUTIONS PRIVATE LIMITED (N0W
MERGED INTO ONE 97 COMMUNICATIONS LIMITED)
.....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE
19(1), DELHI AND OTHERS .....Respondents
Through: Mr. Indruj Rai, SSC with Mr.
Sanjeev Menon and Mr. Rahul
Singh, JSC
+ W.P.(C) 5165/2022
Signature Not Verified
ITA 116/2023 & other connected matters Page 9 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
PAYTM MOBILE SOLUTIONS PRIVATE LIMITED (NOW
MERDED INTO ONE 97 COMMUNICATIONS LTD.)
.....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE
19(1), DELHI AND ORS. .....Respondents
Through: Mr. Indruj Rai, SSC with Mr.
Sanjeev Menon and Mr. Rahul
Singh, JSC
+ W.P.(C) 5166/2022
PAYTM MOBILE SOLUTIONS PRIVATE LIMITED (NOW
MERGED INTO ONE 97 COMMUNICATIONS LTD.)
.....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE
19(1), DELHI AND ORS. .....Respondents
Through: Mr. Indruj Rai, SSC with Mr.
Sanjeev Menon and Mr. Rahul
Singh, JSC
+ W.P.(C) 5171/2022
PAYTM MOBILE SOLUTIONS PRIVATE LIMITED (NOW
MERGED INTO ONE 97 COMMUNICATIONS LIMITED)
.....Petitioner
Through: Mr. Deepak Chopra, Mr. Ankul
Goyal and Mr. Priyam
Bhatnagar, Advs.
versus
Signature Not Verified
ITA 116/2023 & other connected matters Page 10 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
ASSISTANT COMMISSIONER OF INCOME
TAX & ORS. .....Respondents
Through: Mr. Indruj Rai, SSC with Mr.
Sanjeev Menon and Mr. Rahul
Singh, JSC
+ W.P.(C) 5475/2022
SHAKUNTLAM SOFTECH PRIVATE LIMITED (NOW
AMALGAMATED WITH SHAKUNTLAM SECURITIES
PRIVATE LIMITED) .....Petitioner
Through: Mr. Ruchesh Sinha and Ms.
Monalisa Maity, Advs.
versus
INCOME TAX OFFICER WARD 23(1)
DELHI & ANR. .....Respondents
Through: Mr. Puneet Rai, SSC along with
Mr. Ashvini Kumar and Mr.
Rishabh Nangia, SCs.
+ W.P.(C) 7151/2022
MERCER CONSULTING (INDIA) PRIVATE
LIMITED .....Petitioner
Through: Mr. Manuj Sabharwal and Mr.
Drona Negi, Advocates
versus
DEPUTY COMMISSIONER OF INCOME-
TAX & ORS. .....Respondents
Through: Mr. Siddhartha Sinha, SSC along
with Ms. Dacchita Shahi and Ms.
Anjuja Pethia, JSCs, Mr. Nring
Chamwibo Zeliang and Ms. Anu
Priya Minz, Advs.
Signature Not Verified
ITA 116/2023 & other connected matters Page 11 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
+ W.P.(C) 7217/2022
MERCER CONSULTING (INDIA) PRIVATE
LIMITED .....Petitioner
Through: Mr. Manuj Sabharwal and Mr.
Drona Negi, Advocates
versus
DEPUTY COMMISSIONER OF INCOME-TAX
CIRCLE 16(1), DELHI & ORS. .....Respondents
Through: Mr. Siddhartha Sinha, SSC along
with Ms. Dacchita Shahi and Ms.
Anjuja Pethia, JSCs, Mr. Nring
Chamwibo Zeliang and Ms. Anu
Priya Minz, Advs.
+ W.P.(C) 13991/2022
EKUM DESIGN PRIVATE LIMITED .....Petitioner
Through: Mr. Vikas Jain, Mr. Aviral
Saxena, Ms. Shrawani, Mr.
Piyush Thavi and Mr. Hardik
Jayal, Advs.;
versus
INCOME TAX OFFICER AND ORS. .....Respondents
Through: Mr. Sanjay Kumar, SSC along
with Ms. Easha Kadian, JSC.
+ W.P.(C) 14034/2022
SIDDHESHWARI TRADEX
PRIVATE LIMITED .....Petitioner
Through: Ms. Shreya Jain and Adv. Mr.
Gaurav Tanwar, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME
TAX & ANR. .....Respondents
Signature Not Verified
ITA 116/2023 & other connected matters Page 12 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Through: Mr. Sanjay Kumar, SSC along
with Ms. Easha Kadian, JSC.
+ W.P.(C) 17290/2022
RANJITGARH FINANCE CO. PRIVATE LIMITED
(TRANSFEREE COMPANY OF AASTHA PROFESSIONAL
CONSULTANTS PRIVATE LIMITED) THROUGH ITS
DIRECTOR SH. MANAN NARANG .....Petitioner
Through: Mr. Mukesh Sukhija, Mr. Milind
Gautam, Mr. Priyeranjan
Ambashtha and Ms. Archana
Biala, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME
TAX CIRCLE 19(1) .....Respondent
Through: Mr. Aseem Chawla, SSC with
Ms. Priya Sarkar, JSC & Ms.
Pratishtha Chaudhary, Adv.
+ W.P.(C) 17329/2022 & CM APPL. 57045/2023 (Direction)
RANJITGARH FINANCE CO. PRIVATE LIMITED
(TRANSFEREE COMPANY OF OMANSH PROPERTIES
PRIVATE LIMITED) THROUGH ITS DIRECTOR SH.
MANAN NARANG .....Petitioner
Through: Mr. Mukesh Sukhija, Mr. Milind
Gautam, Mr. Priyeranjan
Ambashtha and Ms. Archana
Biala, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME
TAX CIRCLE 19(1) .....Respondent
Through: Mr. Aseem Chawla, SSC with
Ms. Priya Sarkar, JSC & Ms.
Pratishtha Chaudhary, Adv.
Signature Not Verified
ITA 116/2023 & other connected matters Page 13 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
+ W.P.(C) 3885/2023
NCUBATE INDIA SERVICES PRIVATE
LIMITED .....Petitioner
Through: Mr. Sumit K. Batra, Mr. Manish
Khurana, Ms. Priyanka Jindal &
Mr. Nikhin Alex, Advs.
versus
DEPUTY COMMISSIONER OF INCOME TAX,
CIRCLE 16 (1), DELHI & ANR. .....Respondents
Through: Mr. Gaurav Gupta, SSC along
with Mr. Shivendra Singh and
Mr. Yojit Pareek, JSCs.
+ W.P.(C) 4558/2023
SUNCITY HI-TECH INFRASTRUCTURE PRIVATE
LIMITED - AFTER MERGER OF M/S SUPER BUILT REAL
ESTATES AND LAND DEVELOPERS PVT. LTD
.....Petitioner
Through: Mr. Salil Kapoor, Mr. Sumit
Lalchandani and Ms. Ananya
Kapoor, Advs.
versus
INCOME TAX OFFICER, WARD 24-1,
DELHI & ANR. .....Respondents
Through: Mr. Sunil Kumar Agarwal, SSC
along with Mr. Shivansh B.
Pandya, Mr. Viplav Acharya,
JSCs and Mr. Utkarsh Tiwari,
Adv.
+ W.P.(C) 5868/2023 & CM APPL. 23019/2023 (Interim Stay)
ELITE WEALTH LIMITED .....Petitioner
Through: Mr. Amol Sinha, Mr. Kshitij
Garg and Mr. Sourav Verma,
Advs.
Signature Not Verified
ITA 116/2023 & other connected matters Page 14 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
versus
INCOME TAX OFFICER, WARD8(1),
DELHI & ANR. .....Respondents
Through: Mr. Debesh Panda, SSC with
Mr. Vikramaditya Singh, Ms.
Zehra Khan, JSCs and Mr. Ishan
Puri, Adv.
+ W.P.(C) 7775/2023 & CM APPL. 30016/2023 (Stay)
LECOANET HEMANT INDIA PVT. LTD. (SUCCESSOR /
TRANSFEREE COMPANY OF IP SUPPORT SERVICES
(INDIA) PVT. LTD.) .....Petitioner
Through: Mr. Piyush Kaushik and Mr.
Tanveer Zaki, Advs.
versus
PRINCIPAL COMMISSIONER OF INCOME TAX-4
N.DELHI & ANR. .....Respondents
Through: Mr. Gaurav Gupta, SSC along
with Mr. Shivendra Singh and
Mr. Yojit Pareek, JSCs.
+ W.P.(C) 7487/2024 & CM APPL. 31188/2024 (Interim Stay)
LECOANET HEMANT INDIA PVT. LTD. .....Petitioner
Through: Mr. Piyush Kaushik and Mr.
Tanveer Zaki, Advs.
versus
PRINCIPAL COMMISSIONER OF INCOME
TAX-4 & ANR. .....Respondents
Through: Mr. Gaurav Gupta, SSC along
with Mr. Shivendra Singh and
Mr. Yojit Pareek, JSCs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
Signature Not Verified
ITA 116/2023 & other connected matters Page 15 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
JUDGMENT
YASHWANT VARMA, J.
1. This batch of writ petitions and a connected Income Tax Appeal
impugn orders of assessment as well as reassessment action initiated by
the respondents on the ground of the amalgamated entity having never
been placed on notice. The petitioners would contend that despite the
respondents having been duly apprised of the factum of amalgamation,
no notices were served upon the amalgamated entity and orders of
assessment as well as notices of reassessment were maintained in the
name of the amalgamating entity. This, according to the writ
petitioners, would amount to a fatal defect rendering the final orders
and notices as framed being null and void. It was their submission that
the impugned action of the respondents would not sustain in light of the
decision rendered by the Supreme Court in Principal Commissioner of
Income Tax, New Delhi vs Maruti Suzuki (India) Limited1.
2. The respondents, on the other hand, would urge us to hold that a
failure to place the amalgamated entity on notice is curable and one
which would fall within the ambit of Section 292B of the Income Tax
Act, 1961 2. Additionally, the respondents rest their case on a
subsequent decision of the Supreme Court in Principal Commissioner
of Income Tax (Central)-2 vs. Mahagun Realtors (P) Ltd. 3. It is the
aforesaid rival contentions which fall for our consideration in this
batch.
3. For facilitating disposal of the present matters, the petitioners had
1
(2020) 18 SCC 331
2
Act
3
2022 SCC OnLine SC 407
Signature Not Verified
ITA 116/2023 & other connected matters Page 16 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
circulated a detailed chart pertaining to each individual writ petitioner
encapsulating relevant details pertaining the Scheme of Arrangement as
sanctioned by the National Company Law Tribunal 4 or the concerned
High Court, the dates when the factum of merger may have been
intimated to the respondents as well as details pertaining to orders of
assessment as made or notices issued under Section 148. That chart
which was presented for our consideration is appended to the judgment
as “Appendix “A”.
4. From the facts which have been set forth in the lead writ petition
being W.P.(C) 13807/2022, we find that Religare Securities Ltd 5. was
a company incorporated under the Companies Act, 19566 and was
regularly assessed to tax under the provisions of the Act. It is also
stated to be a company which was duly listed on the National Stock
Exchange as well as the Bombay Stock Exchange and engaged in
providing security, brokering and depository services to its retail
clients. For Assessment Year7 2015-16, RSL is stated to have filed its
return of income on 31 March 2017. An assessment order under Section
143(3) thereafter came to be framed on 10 December 2018. Although
that assessment formed subject matter of cross appeals preferred by
respective sides before the Income Tax Appellate Tribunal 8, the
dispute forming part of assessee’s appeal ultimately came to be settled
under the Direct Tax Vivad se Vishwas Act, 2020 9. The appeal of the
Revenue, however, continues to remain pending before the Tribunal.
4
NCLT
5
RSL
6
1956 Act
7
AY
8
Tribunal
9
The 2020 Act
Signature Not Verified
ITA 116/2023 & other connected matters Page 17 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
5. Eleven entities of the Religare Group including RSL are stated to
have filed a petition before the NCLT for approval of a composite
Scheme of Arrangement. It is the case of the writ petitioner that the
Assessing Officer10 of RSL had submitted its No Objection to the
proposed Scheme before the NCLT on 28 September 2017. That
Scheme ultimately came to be approved by the NCLT on 08 December
2017, pursuant to which the brokering business of RSL was demerged
and vested in Religare Broking Ltd. as a going concern while the
remaining balances and undertaking of RSL stood amalgamated with
the petitioner, Religare Enterprises Ltd. The appointed date under the
aforesaid Scheme was prescribed to be 01 April 2016.
6. It is the case of the writ petitioner that the factum of merger was
duly intimated to the Assessing Officer on 29 December 2017. The
petitioner is also stated to have submitted merged financial statements
along with a revised Return of Income on 29 March 2019.
7. On 15 April 2021, a notice under Section 148 came to be issued
in the name of RSL. The aforesaid notice was assailed by the writ
petitioner by way of W.P.(C) 7132/2021 before this Court and which
ultimately came to be allowed along with a batch of writ petitions
which formed subject matter of Mon Mohan Kohli v. Assistant
Commissioner of Income-tax and Another 11.
8. In terms of the judgment rendered by the Court on that batch, the
reassessment notice of 15 April 2021 came to be quashed. The decision
in Mon Mohan Kohli as well as judgments rendered on similar lines by
different High Courts ultimately travelled up to the Supreme Court and
10
AO
11
2021 SCC OnLine Del 5250
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where the controversy with respect to the reassessment regime which
would be applicable in respect of notices issued post 01 April 2021
ultimately came to be clarified in terms of the judgment rendered in
Union of India and Ors. vs. Ashish Agarwal 12. Shorn of unnecessary
details, suffice it to note that the decisions of different High Courts
came to be modified with liberty being accorded to the Revenue to treat
the notices originally issued under Section 148 as being referable to
Section 148A(b) as introduced by virtue of Finance Act, 2021 and for
proceedings to be taken forward in accordance with law.
9. Acting in purported compliance of that decision, the respondents
on 25 May 2022 issued a communication in the name of RSL and
provided a copy of the information on the basis of which the notice of
15 April 2021 had been initially issued. It is further alleged by the writ
petitioner that without granting any right of personal hearing, a final
order referable to Section 148A(d) came to be passed on 28 July 2022
followed by a consequential notice under Section 148. It was the
aforesaid action which ultimately led to the institution of the present
writ petition. It becomes pertinent to note that it was only the Section
148A(d) order and the consequential notice under Section 148 issued
pursuant to the aforesaid determination which for the first time came to
be framed in the name of the resultant entity, Religare Enterprises
Limited. Both the original Section 148 notice as well as the subsequent
notice under Section 148A(b) were in the name of RSL.
10. It becomes pertinent to note that although Instruction No. 1/2022
dated 11 May 2022 issued by the Central Board of Direct Taxes13
12
(2023) 1 SCC 617
13
CBDT
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also formed subject matter of challenge in some of the writ petitions
forming part of this batch, no arguments were addressed on that score.
We thus confine our determination to the principal question of whether
the impugned proceedings would sustain when viewed in the context of
the same having been drawn in the name of entities which had ceased to
exist.
11. The writ petitioners essentially contend that in terms of a Scheme
of Arrangement which may ultimately come to be approved by the
jurisdictional High Court or the NCLT, the amalgamating entity comes
to be dissolved by operation of law. It was contended that the
dissolution of the amalgamating corporate entity occurs by virtue of the
NCLT or the High Court sanctioning the compromise or arrangement
and this by virtue of the provisions made in Sections 230 to 232 of the
Companies Act, 2013 14 and which contemplates a deemed dissolution
of the transferor company without the process of winding up being
resorted to. According to learned counsels who advanced submissions
on the writ petitions, the dissolution of the transferor company would
lead to the Court coming to the irresistible conclusion that it would
have ceased to exist in the eyes of law and thus any notice issued in its
name being a nullity.
12. According to the writ petitioners neither Section 159 nor Section
170 of the Act would save or validate a notice that may be issued in the
name of a transferor company which did not exist on the relevant date.
It was submitted that the Act itself contemplates a charge of tax being
imposed on an entity which is in existence on the date of issuance of
notice. The principal submission was that once that legal personality
14
2013 Act
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which otherwise existed had ceased to remain in existence on the date
of issuance of notice, any proceedings drawn in its name or orders
passed would be wholly unsustainable in law and liable to be quashed.
13. According to the writ petitioners, the challenge on grounds
noticed above is no longer res integra and stands conclusively answered
by the Supreme Court in Maruti Suzuki. It becomes pertinent to note
that the judgment of the Supreme Court in Maruti Suzuki had come to
be rendered on an appeal which arose from a judgment of this Court
and which while upholding the decision rendered by the Tribunal had
held that an assessment made in the name of Suzuki Powertrain India
Ltd. 15, and which had evidently under an approved Scheme
amalgamated with Maruti Suzuki India Ltd. 16, was a nullity. On facts
it emerged that MSIL had duly intimated the AO of the amalgamation
prior to the case being selected for scrutiny assessment.
Notwithstanding that information being available, the AO appears to
have framed a draft assessment order in the name of SPIL.
14. It was in the aforesaid backdrop that the Supreme Court firstly
took note of an earlier decision of this Court in Spice Entertainment
Ltd. vs. Commissioner of Service Tax 17, where it had been held that
an assessment made in the name of a transferor company would be void
ab initio and could not possibly be viewed as a procedural defect
curable or rectifiable under Section 292B of the Act. This becomes
evident from the following conclusions which came to be rendered:
“11. After the sanction of the scheme on 11th April, 2004, the Spice
ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the15
SPIL
16
MSIL
17
2011 SCC OnLine Del 3210
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returns, it became incumbent upon the Income tax authorities to
substitute the successor in place of the said ‘dead person’. When
notice under Section 143(2) was sent, the appellant/amalgamated
company appeared and brought this fact to the knowledge of the AO.
He, however, did not substitute the name of the appellant on record.
Instead, the Assessing Officer made the assessment in the name of
M/s Spice which was non existing entity on that day. In such
proceedings and assessment order passed in the name of M/s Spice
would clearly be void. Such a defect cannot be treated as procedural
defect. Mere participation by the appellant would be of no effect as
there is no estoppel against law.”
15. The Special Leave Petition which was taken against the
judgment in Spice Entertainment came to be dismissed by the Supreme
Court in Commissioner of Income Tax, New Delhi vs. Spice
Enfotainment Ltd. 18 in the following terms:
“Delay condoned. Heard the learned Senior Counsel appearing for
the parties. We do not find any reason to interfere with the impugned
judgment(s) [Spice Entertainment Ltd. v. Commr. of Service Tax,
2011 SCC OnLine Del 3210 : (2012) 280 ELT
43] , [CIT v. Dimension Apparels (P) Ltd., 2014 SCC OnLine Del
7588 : (2015) 370 ITR 288] , [CIT v. Chanakaya Exports (P) Ltd.,
2014 SCC OnLine Del 7678] , [CIT v. Chanakaya Exports (P) Ltd.,
ITA No. 721 of 2014, order dated 24-11-2014 (Del)] , [CIT v. Radha
Appearals (P) Ltd., 2015 SCC OnLine Del 14568] ,[CIT v. Intel
Technology (India) (P) Ltd., 2015 SCC OnLine Kar
9493] , [CIT v. Chanakaya Exports (P) Ltd., 2015 SCC OnLine Del
14567] , [CIT v. Mayank Traders (P) Ltd., 2015 SCC OnLine Del
14633] , [CIT v. P.D. Associates (P) Ltd., 2015 SCC OnLine Del
14632] , [CIT v. Foryu Overseas (P) Ltd., 2015 SCC OnLine Del
14566] , [CIT v. Sapient Consulting Ltd., 2016 SCC OnLine Del
6615] passed by the High Court. In view of this, we find no merit in
the appeals and special leave petitions. Accordingly, the appeals and
special leave petitions are dismissed.”
16. The aspect of an assessment coming to be framed in the name of
a company which stood dissolved consequent to amalgamation appears
to have arisen for consideration of this Court yet again in Sky Light
18
(2020) 18 SCC 353
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Hospitality LLP vs. Assistant Commissioner of Income Tax 19. The
Sky Light Hospitality Court held that a defect in recording the name of a
non-existent company would constitute a procedural error which could
be cured under Section 292B of the Act. The appeal taken against that
decision to the Supreme Court came to be dismissed in Skylight
Hospitality LLP vs. Assistant Commissioner of Income Tax 20 in the
following terms:-
“In the peculiar facts of this case, we are convinced that wrong name
given in the notice was merely a clerical error which could be
corrected under Section 292-B of the Income Tax Act. The special
leave petition is dismissed. Pending applications stand disposed of.”
17. In Maruti Suzuki it appears to have been urged by and on behalf
of the Revenue that the decision in Spice Entertainment would not hold
good in light of the decision which our High Court had pronounced in
Sky Light Hospitality and which had come to be affirmed by the
Supreme Court. Dealing with the aforesaid contention, the Supreme
Court in Maruti Suzuki observed as follows:
“28. The submission, however, which has been urged on behalf of
the Revenue is that a contrary position emerges from the decision of
the Delhi High Court in Skylight Hospitality LLP [Skylight
Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405
ITR 296] which was affirmed on 6-4-2018 [Skylight Hospitality
LLP v. CIT, (2018) 13 SCC 147] by a two-Judge Bench of this Court
consisting of Hon’ble Mr Justice A.K. Sikri and Hon’ble Mr Justice
Ashok Bhushan. In assessing the merits of the above submission, it
is necessary to extract the order dated 6-4-2018 [Skylight Hospitality
LLP v. CIT, (2018) 13 SCC 147] of this Court : (Skylight Hospitality
case[Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] , SCC p.
147, para 1)
“1. In the peculiar facts of this case, we are convinced that
wrong name given in the notice was merely a clerical error
which could be corrected under Section 292-B of the
Income Tax Act. The special leave petition is dismissed.
19
2018 SCC OnLine Del 7155
20
(2018) 13 SCC 147
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Pending applications stand disposed of.”
Now, it is evident from the above extract that it was in the peculiar
facts of the case that this Court indicated its agreement that the
wrong name given in the notice was merely a clerical error, capable
of being corrected under Section 292-B. The “peculiar facts” of
Skylight Hospitality emerge from the decision of the Delhi High
Court [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155:
(2018) 405 ITR 296]. Skylight Hospitality, an LLP, had taken over
on 13-5-2016 and acquired the rights and liabilities of Skylight
Hospitality Pvt. Ltd. upon conversion under the Limited Liability
Partnership Act, 2008 (the LLP Act, 2008). It instituted writ
proceedings for challenging a notice under Sections 147/148 of the
1961 Act dated 30-3-2017 for AY 2010-2011. The “reasons to
believe” made a reference to a tax evasion report received from the
investigation unit of the Income Tax Department. The facts were
ascertained by the investigation unit. The reasons to believe referred
to the assessment order for AY 2013-2014 and the findings recorded
in it. Though the notice under Sections 147/148 was issued in the
name of Skylight Hospitality Pvt. Ltd. (which had ceased to exist
upon conversion into an LLP), there was, as the Delhi High Court
held “substantial and affirmative material and evidence on record” to
show that the issuance of the notice in the name of the dissolved
company was a mistake. The tax evasion report adverted to the
conversion of the private limited company into an LLP. Moreover,
the reasons to believe recorded by the assessing officer adverted to
the approval of the Principal Commissioner. The PAN number of
LLP was also mentioned in some of the documents. The notice under
Sections 147/148 was not in conformity with the reasons to believe
and the approval of the Principal Commissioner. It was in this
background that the Delhi High Court held that the case fell within
the purview of Section 292-B for the following reasons : (Skylight
Hospitality case [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine
Del 7155 : (2018) 405 ITR 296], SCC OnLine Del para 18)
“18. … There was no doubt and debate that the notice was
meant for the petitioner and no one else. Legal error and
mistake was made in addressing the notice. Noticeably, the
appellant having received the said notice, had filed without
prejudice reply/letter dated 11-4-2017. They had objected to
the notice being issued in the name of the Company, which
had ceased to exist. However, the reading of the said letter
indicates that they had understood and were aware, that the
notice was for them. It was replied and dealt with by them.
The fact that notice was addressed to M/s Skylight
Hospitality Pvt. Ltd., a company which had been dissolved,
was an error and technical lapse on the part of the
respondent. No prejudice was caused.”
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29. The decision in Spice Entertainment [Spice Entertainment
Ltd. v. Commr. of Service Tax, 2011 SCC OnLine Del 3210 : (2012)
280 ELT 43] was distinguished with the following observations :
(Skylight Hospitality case [Skylight Hospitality LLP v. CIT, 2018
SCC OnLine Del 7155 : (2018) 405 ITR 296] , SCC OnLine Del
para 19)
“19. Petitioner relies on Spice Infotainment v. CIT [ This
judgment has also been referred to as Spice Infotainment
Ltd. v. CIT, (2012) 247 CTR (Del) 500] . Spice Corp. Ltd.,
the company that had filed the return, had amalgamated
with another company. After notice under Sections 147/148
of the Act was issued and received in the name of Spice
Corp. Ltd., the assessing officer was informed about
amalgamation but the assessment order was passed in the
name of the amalgamated company and not in the name of
amalgamating company. In the said situation, the
amalgamating company had filed an appeal and issue of
validity of assessment order was raised and examined. It
was held that the assessment order was invalid. This was
not a case wherein notice under Sections 147/148 of the Act
was declared to be void and invalid but a case in which
assessment order was passed in the name of and against a
juristic person which had ceased to exist and stood
dissolved as per provisions of the Companies Act. Order
was in the name of non-existing person and hence void and
illegal.”
30. From a reading of the order of this Court dated 6-4-2018
[Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] in the special
leave petition filed by Skylight Hospitality LLP against the judgment
of the Delhi High Court rejecting its challenge, it is evident that the
peculiar facts of the case weighed with this Court in coming to this
conclusion that there was only a clerical mistake within the meaning
of Section 292-B. The decision in Skylight Hospitality LLP [Skylight
Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405
ITR 296] has been distinguished by the Delhi, Gujarat and Madras
High Courts in:
(i) Rajender Kumar Sehgal [Rajender Kumar Sehgal v. CIT, 2018
SCC OnLine Del 12890];
(ii) Chandreshbhai Jayantibhai Patel [Chandreshbhai Jayantibhai
Patel v. CIT, 2018 SCC OnLine Guj 4812]; and
(iii) Alamelu Veerappan [Alamelu Veerappan v. CIT, 2018 SCC
OnLine Mad 13593] .
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31. There is no conflict between the decisions of this Court in Spice
Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353]
(dated 2-11-2017) and in Skylight Hospitality LLP v. CIT [Skylight
Hospitality LLP v. CIT, (2018) 13 SCC 147] (dated 6-4-2018).”
18. Arguments flowing on lines similar to those which were
addressed before us in this batch appear to have been urged before the
Supreme Court in Maruti Suzuki with it being argued that a notice in
the name of a company which stood dissolved would be a curable
mistake and that in any case, Section 170 of the Act would save those
notices. This becomes apparent from a reading of paragraphs 32 and 33
of the report which are extracted hereinbelow:
“32. Mr Zoheb Hossain, learned counsel appearing on behalf of the
Revenue urged during the course of his submissions that the notice
that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections
147 and 148. Hence, he urged that despite the fact that the notice is
of a jurisdictional nature for reopening an assessment, this Court did
not find any infirmity in the decision of the Delhi High Court
holding that the issuance of a notice to an erstwhile private limited
company which had since been dissolved was only a mistake curable
under Section 292-B. A close reading of the order of this Court dated
6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] ,
however indicates that what weighed in the dismissal of the special
leave petition were the peculiar facts of the case. Those facts have
been noted above. What had weighed with the Delhi High Court was
that though the notice to reopen had been issued in the name of the
erstwhile entity, all the material on record including the tax evasion
report suggested that there was no manner of doubt that the notice
was always intended to be issued to the successor entity. Hence,
while dismissing the special leave petition this Court observed that it
was the peculiar facts of the case which led the Court to accept the
finding that the wrong name given in the notice was merely a
technical error which could be corrected under Section 292-B. Thus,
there is no conflict between the decisions in Spice
Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353]
on the one hand and Skylight Hospitality LLP [Skylight Hospitality
LLP v. CIT, (2018) 13 SCC 147] on the other hand. It is of relevance
to refer to Section 292-B of the Income Tax Act which reads as
follows:
“292-B. Return of income, etc., not to be invalid on certain
grounds.–No return of income, assessment, notice,
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summons or other proceeding, furnished or made or issued
or taken or purported to have been furnished or made or
issued or taken in pursuance of any of the provisions of this
Act shall be invalid or shall be deemed to be invalid merely
by reason of any mistake, defect or omission in such return
of income, assessment, notice, summons or other
proceeding if such return of income, assessment, notice,
summons or other proceeding is in substance and effect in
conformity with or according to the intent and purpose of
this Act.”
In this case, 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 292-B.
33. In this context, it is necessary to advert to the provisions of
Section 170 which deal with succession to business otherwise than
on death. Section 170 provides as follows:
“170. Succession to business otherwise than on death.–
(1) Where a person carrying on any business or profession
(such person hereinafter in this section being referred to as
the predecessor) has been succeeded therein by any other
person (hereinafter in this section referred to as the
successor) who continues to carry on that business or
profession–
(a) the predecessor shall be assessed in respect of the
income of the previous year in which the succession took
place up to the date of succession;
(b) the successor shall be assessed in respect of the income
of the previous year after the date of succession.
(2) Notwithstanding anything contained in sub-section (1),
when the predecessor cannot be found, the assessment of
the income of the previous year in which the succession
took place up to the date of succession and of the previous
year preceding that year shall be made on the successor in
like manner and to the same extent as it would have been
made on the predecessor, and all the provisions of this Act
shall, so far as may be, apply accordingly.
(3) When any sum payable under this section in respect of
the income of such business or profession for the previous
year in which the succession took place up to the date of
succession or for the previous year preceding that year,
assessed on the predecessor, cannot be recovered from him,
the assessing officer shall record a finding to that effect and
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the sum payable by the predecessor shall thereafter be
payable by and recoverable from the successor and the
successor shall be entitled to recover from the predecessor
any sum so paid.
(4) Where any business or profession carried on by a Hindu
undivided family is succeeded to, and simultaneously with
the succession or after the succession there has been a
partition of the joint family property between the members
or groups of members, the tax due in respect of the income
of the business or profession succeeded to, up to the date of
succession, shall be assessed and recovered in the manner
provided in Section 171, but without prejudice to the
provisions of this section.
Explanation.–For the purposes of this section, “income”
includes any gain accruing from the transfer, in any manner
whatsoever, of the business or profession as a result of the
succession.”
19. The Supreme Court in Maruti Suzuki ultimately held:
“36. 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 coordinate Bench of two learned Judges which
dismissed the appeal of the Revenue in Spice
Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353]
on 2-11-2017. The decision in Spice Enfotainment [CIT v. Spice
Enfotainment Ltd., (2020) 18 SCC 353] 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 Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18
SCC 353].
37. We find no reason 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 which has been taken by this Court in
relation to the respondent for AY 2011-2012 must, in our view be
adopted in respect of the present appeal which relates to AY 2012-
2013. 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.
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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.”
20. As is evident from the above, Maruti Suzuki came to affirm the
view which was expressed by this Court in Spice Entertainment. The
Court in Spice Entertainment had identified the principal question to be
whether the provisions of Section 292B could be invoked to salvage a
situation where an assessment comes to be framed in the name of the
transferor company. The Court was called upon to examine whether
such an order of assessment would be a nullity or one which could be
viewed as suffering from a procedural defect which could be validated
by invoking Section 292B. Dealing with this aspect, the Court in Spice
Entertainment had observed as follows:-
“8. A company incorporated under the Indian Companies Act is a
juristic person. It takes its birth and gets life with the incorporation.
It dies with the dissolution as per the provisions of the Companies
Act. It is trite law that on amalgamation, the amalgamating company
ceases to exist in the eyes of law. This position is even accepted by
the Tribunal in para-14 of its order extracted above. Having regard
this consequence provided in law, in number of cases, the Supreme
Court held that assessment upon a dissolved company is
impermissible as there is no provision in Income-Tax to make an
assessment thereupon. In the case of Saraswati Industrial Syndicate
Ltd. v. CIT, 186 ITR 278 the legal position is explained in the
following terms:
“The question is whether on the amalgamation of the Indian
Sugar Company with the appellant Company, the Indian
Sugar Company continued to have its entity and was alive
for the purposes of Section 41(1) of the Act. The
amalgamation of the two companies was effected under the
order of the High Court in proceedings under Section 391
read with Section 394 of the Companies Act. The Saraswati
Industrial Syndicate, the trans free Company was a
subsidiary of the Indian Sugar Company, namely, the
transferor Company. Under the scheme of amalgamation the
Indian Sugar Company stood dissolved on 29th October,
1962 and it ceased to be in existence thereafter. Though the
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Industrial Syndicate Ltd. undertook to meet any liability of
the Indian Sugar Company which that Company incurred or
it could incur, any liaiblity, before the dissolution or not
thereafter.
Generally, where only one Company is involved in change
and the rights of the share holders and creditors are varied,
it amounts to reconstruction or reorganisation or scheme of
arrangement. In amalgamation two or more companies are
fused into one by merger or by taking over by another.
Reconstruction or amalgamation has no precise legal
meaning. The amalgamation is a blending of two or more
existing undertakings into one undertaking, the share
holders of each blending Company become substantially the
share holders in the Company which is to carry on the
blended undertakings. There may be amalgamation either
by the transfer of two or more undertakings to a new
Company, or by the transfer of one or more undertakings to
an existing Company. Strictly amalgamation does not cover
the mere acquisition by a Company of the share capital of
other Company which remains in existence and continues
its undertaking but the context in which the term is used
may show that it is intended to include such an acquisition.
See Halsburys Laws of England 4thEdition Vol. 7 Para
1539. Two companies may join to form a new Company,
but there may be absorption or blending of one by the other,
both amount to amalgamation. When two companies are
merged and are so joined, as to form a third Company or
one is absorbed into one or blended with another, the
amalgamating Company loses its entity.”
9. The Court referred to its earlier judgment in General Radio and
Appliances Co. Ltd. v. M.A. Khader (1986) 60 Comp Case 1013. In
view of the aforesaid clinching position in law, it is difficult to digest
the circuitous route adopted by the Tribunal holding that the
assessment was in fact in the name of amalgamated company and
there was only a procedural defect.
10. Section 481 of the Companies Act provides for dissolution of the
company. The Company Judge in the High Court can order
dissolution of a company on the grounds stated therein. The effect of
the dissolution is that the company no more survives. The dissolution
puts an end to the existence of the company. It is held in M.H. Smith
(Plant Hire) Ltd. v. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342
(CA) that “once a company is dissolved it becomes a non-existent
party and therefore no action can be brought in its name. Thus an
insurance company which was subrogated to the rights of another
insured company was held not to be entitled to maintain an action in
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the name of the company after the latter had been dissolved”.
11. After the sanction of the scheme on 11th April, 2004, the Spice
ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the
returns, it became incumbent upon the Income tax authorities to
substitute the successor in place of the said ‘dead person’. When
notice under Section 143(2) was sent, the appellant/amalgamated
company appeared and brought this fact to the knowledge of the AO.
He, however, did not substitute the name of the appellant on record.
Instead, the Assessing Officer made the assessment in the name of
M/s Spice which was non existing entity on that day. In such
proceedings and assessment order passed in the name of M/s Spice
would clearly be void. Such a defect cannot be treated as procedural
defect. Mere participation by the appellant would be of no effect as
there is no estoppel against law.
12. Once it is found that assessment is framed in the name of non-
existing entity, it does not remain a procedural irregularity of the
nature which could be cured by invoking the provisions of Section
292B of the Act. Section 292B of the Act reads as under: –
“292B. No return of income assessment, notice, summons
or other proceedings furnished or made or issue or taken or
purported to have been furnished or made or issued or taken
in pursuance of any of the provisions of this Act shall be
invalid or shall be deemed to be invalid merely by reasons
of any mistake, defect or omission in such return of income,
assessment, notice, summons or other proceeding if such
return of income, assessment, notice, summons or other
proceedings is in substance and effect in conformity with or
according to the intent and purpose of this Act.”
13. The Punjab & Haryana High Court stated the effect of this
provision in CIT v. Norton Motors, 275 ITR 595 in the following
manner: –
“A reading of the above reproduced provision makes it clear
that a mistake, defect or omission in the return of income,
assessment, notice, summons or other proceeding is not
sufficient to invalidate an action taken by the competent
authority, provided that such return of income, assessment,
notice, summons or other proceeding is in substance and
effect in conformity with or according to the provisions of
the Act. To put it differently, Section 292B can be relied
upon for resisting a challenge to the notice, etc., only if
there is a technical defect or omission in it. However, there
is nothing in the plain language of that section from which it
can be inferred that the same can be relied upon for curing a
jurisdictional defect in the assessment notice, summons or
other proceeding. In other words, if the notice, summons or
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other proceeding taken by an authority suffers from an
inherent lacuna affecting his/its jurisdiction, the same
cannot be cured by having resort to Section 292B.”
14. The issue again cropped up before the Court in CIT v. Harjinder
Kaur (2009) 222 CTR 254 (P&H). That was a case where return in
question filed by the assessee was neither signed by the assessee nor
verified in terms of the mandate of Section 140 of the Act. The Court
was of the opinion that such a return cannot be treated as return even
a return filed by the assessee and this inherent defect could not be
cured inspite of the deeming effect of Section 292B of the Act.
Therefore, the return was absolutely invalid and assessment could
not be made on a invalid return. In the process, the Court observed as
under: –
“Having given our thoughtful consideration to the
submission advanced by the learned Counsel for the
appellant, we are of the view that the provisions of Section
292B of the 1961 Act do not authorize the AO to ignore a
defect of a substantive nature and it is, therefore, that the
aforesaid provision categorically records that a return would
not be treated as invalid, if the same “in substance and
effect is in conformity with or according to the intent and
purpose of this Act”. Insofar as the return under reference is
concerned, in terms of Section 140 of the 1961 Act, the
same cannot be treated to be even a return filed by the
respondent assessee, as the same does not even bear her
signatures and had not even been verified by her. In the
aforesaid view of the matter, it is not possible for us to
accept that the return allegedly filed by the assessee was in
substance and effect in conformity with or according to the
intent and purpose of this Act. Thus viewed, it is not
possible for us to accept the contention advanced by the
learned Counsel for the appellant on the basis of Section
292B of the 1961 Act. The return under reference, which
had been taken into consideration by the Revenue, was an
absolutely invalid return as it had a glaring inherent defect
which could not be cured in spite of the deeming effect of
Section 292B of the 1961 Act.”
15. Likewise, in the case of Sri Nath Suresh Chand Ram
Naresh v. CIT (2006) 280 ITR 396, the Allahabad High Court held
that the issue of notice under Section 148 of the Income Tax Act is a
condition precedent to the validity of any assessment order to be
passed under section 147 of the Act and when such a notice is not
issued and assessment made, such a defect cannot be treated as cured
under Section 292B of the Act. The Court observed that this
provisions condones the invalidity which arises merely by mistake,
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defect or omission in a notice, if in substance and effect it is in
conformity with or according to the intent and purpose of this Act.
Since no valid notice was served on the assessee to reassess the
income, all the consequent proceedings were null and void and it
was not a case of irregularity. Therefore, Section 292B of the Act
had no application.
16. When we apply the ratio of aforesaid cases to the facts of this
case, the irresistible conclusion would be provisions of Section 292B
of the Act are not applicable in such a case. The framing of
assessment against a non-existing entity/person goes to the root of
the matter which is not a procedural irregularity but a jurisdictional
defect as there cannot be any assessment against a ‘dead person’.
17. The order of the Tribunal is, therefore, clearly unsustainable. We,
thus, decide the questions of law in favour of the assessee and
against the Revenue and allow these appeals.”
21. A few years after Spice Entertainment, a similar question arose
yet again in Sky Light Hospitality. Our Court on that occasion came to
the conclusion that the mistake in that particular case was a technical
error which could be attended to and saved by virtue of Section 292B of
the Act. However, and as the Supreme Court itself had an occasion to
note in Maruti Suzuki, the Court while coming to hold that Section
292B would apply, had pertinently observed that the material on record
was indicative of the Revenue having always intended the notice to be
addressed to the successor entity. It becomes pertinent to note that the
Court in Sky Light Hospitality had alluded to “substantial and
affirmative material and evidence on record” which indicated that the
issuance of the notice in the name of the dissolved entity was a mistake.
In arriving at that conclusion, it had not only borne in consideration the
material which existed on the record as also the tax evasion report
which had duly taken note of the conversion of the Private Limited
Company into an LLP. It is thus apparent that Sky Light Hospitality
came to be rendered in its own peculiar facts. It was in the aforesaid
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factual backdrop that the Supreme Court in Maruti Suzuki ultimately
came to hold that there was no apparent conflict between Spice
Entertainment and Sky Light Hospitality with the latter turning upon its
individual facts.
22. However, the sheet anchor of the submission of the respondents
was, as noticed in the prefatory parts of this decision, the judgment in
Mahagun Realtors. However, and as was noticed by a Division Bench
of our Court in Commissioner of Income Tax vs Sony Mobile
Communications India Pvt. Ltd. 21, and which decision we shall
advert to a little later, that decision of the Supreme Court itself turned
upon the facts of that particular case.
23. In Mahagun Realtors, while expounding upon the effect of
merger of two corporate entities consequent to a Scheme of
Arrangement being sanctioned, the Supreme Court pertinently
observed:-
“18. Amalgamation, thus, is unlike the winding up of a corporate
entity. In the case of amalgamation, the outer shell of the corporate
entity is undoubtedly destroyed ; it ceases to exist. Yet, in every
other sense of the term, the corporate venture continues – enfolded
within the new or the existing transferee entity. In other words, the
business and the adventure lives on but within a new corporate
residence, i.e., the transferee-company. It is, therefore, essential to
look beyond the mere concept of destruction of corporate entity
which brings to an end or 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.”
21
2023 SCC OnLine Del 1231
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24. It also noticed the principles which had been spelt out with
respect to a Scheme of Arrangement and its impact on a transferor
company as was elaborated in Marshall Sons and Co. (India) Ltd. vs.
Income Tax Officer22 as would be evident from paragraph 22 of the
report:-
“22. The effect of amalgamation in the context of Income-tax, was
again considered in another earlier decision, i.e., Marshall Sons and
Co. (India) Ltd. v. ITO. There, the court held that:
“14. Every scheme of amalgamation has to necessarily
provide a date with effect from which the
amalgamation/transfer shall take place. The scheme
concerned herein does so provide, viz., January 1, 1982. It
is true that while sanctioning the scheme, it is open to the
court to modify the said date and prescribe such date of
amalgamation/transfer as it thinks appropriate in the facts
and circumstances of the case. If the court so specifies a
date, there is little doubt that such date would be the date of
amalgamation/date of transfer. But where the court does not
prescribe any specific date but merely sanctions the scheme
presented to it – as has happened in this case – it should
follow that the rate of amalgamation/date of transfer is the
date specified in the scheme as ‘the transfer date’. It cannot
be otherwise. It must be remembered that before applying to
the court under section 391(1), a scheme has to be framed
and such scheme has to contain a date of
amalgamation/transfer. The proceedings before the court
may take some time ; indeed, they are bound to take some
time because several steps provided by sections 391 to
394A and the relevant Rules have to be followed and
complied with. During the period the proceedings are
pending before the court, both the amalgamation units, i.e.,
the transferor-company and the transferee-company may
carry on business, as has happened in this case but normally
provision is made for this aspect also in the scheme of
amalgamation. In the present scheme, clause 6(b) does
expressly provide that with effect from the transfer date, the
transferor company (subsidiary company) shall be deemed
to have carried on the business for and on behalf of the
transferee company (holding company) with all attendant
consequences. It is equally relevant to notice that the courts
have not only sanctioned the scheme in this case but have22
(1997) 2 SCC 302
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also not specified any other date as the date of
transfer/amalgamation. In such a situation, it would not be
reasonable to say that the scheme of amalgamation takes
effect on and from the date of the order sanctioning the
scheme. We are, therefore, of the opinion that the notices
issued by the Income-tax Officer (impugned in the writ
petition) were not warranted in law. The business carried on
by the transferor company (subsidiary company) should be
deemed to have been carried on for and on behalf of the
transferee company. This is the necessary and the logical
consequence of the court sanctioning the scheme of
amalgamation as presented to it. The order of the court
sanctioning the scheme, the filing of the certified copies of
the orders of the court before the Registrar of Companies,
the allotment of shares etc. may have all taken place
subsequent to the date of amalgamation/transfer, yet the
date of amalgamation in the circumstances of this case
would be January 1, 1982. This is also the ratio of the
decision of the Privy Council in Raghubar Dayal v. Bank of
Upper India Ltd. AIR 1919 PC 9, relied on.
Counsel for the Revenue contended that if the aforesaid
view is adopted then several complications will ensue in
case the court refuses to sanction the scheme of
amalgamation. We do not see any basis for this
apprehension. Firstly, an assessment can always be made
and is supposed to be made on the transferee company
taking into account the income of both the transferor and
transferee company. Secondly, and probably the more
advisable course from the point of view of the Revenue
would be to make one assessment on the transferee
company taking into account the income of both, of
transferor or transferee companies and also to make separate
protective assessments on both the transferor and transferee
companies separately. There may be a certain practical
difficulty in adopting this course inasmuch as separate
balance-sheets may not be available for the transferor and
transferee companies. But that may not be an insuperable
problem inasmuch as assessment can always be made, on
the available material, even without a balance-sheet. In
certain cases, best-judgment assessment may also be
resorted to. Be that as it may, we need not pursue this line
of enquiry because it does not arise for consideration in
these cases directly.” (emphasis supplied)
23. Many High Courts in recent years, had mostly relied upon
Saraswati Syndicate which was a case where the transferor entity
had claimed a certain relief on the basis of the agreed method of
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accounting. The corresponding obligation to recognise the demands
was sought to be disallowed in the subsequent year, in the case of the
then transferee-company. The decision of the Delhi High Court, in
Spice (supra), after discussing the decision in Saraswati Syndicate,
went on to explain why assessing an amalgamating-company,
without framing the order in the name of the transferee company is
fatal:
………………..”
25. The Supreme Court proceeded to record its conclusions in this
respect in the following terms:-
“30. 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 transferor or amalgamating
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.”
26. However, and on facts, it found as follows:-
“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 the present
case, however, can be distinguished from the facts in Spice and
Maruti Suzuki on the following bases.
34. Firstly, in both the relied upon cases, the assessee had duly
informed the authorities about the merger of companies and yet the
assessment order was passed in the name of the amalgamating/non-
existent company. However, in the present case, for the assessment
year 2006-07, there was no intimation by the assessee regarding
amalgamation of the company. The return of income for the
assessment year 2006-07 first filed by the respondent on June 30,
2006 was in the name of MRPL. MRPL amalgamated with MIPL on
May 11, 2007, with effect from April 1, 2006. In the present case,
the proceedings against MRPL started in August 27, 2008 – when
search and seizure was first conducted on the Mahagun group of
companies. Notices under section 153A and section 143(2) were
issued in the name MRPL and the representative from MRPL
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corresponded with the Department in the name of MRPL. On May
28, 2010, the assessee filed its return of income in the name of
MRPL, and in the “business reorganization” column of the form
mentioned “not applicable” in amalgamation section. Though the
respondent contends that they had intimated the authorities by letter
dated July 22, 2010, it was for the assessment year 2007-08 and not
for the assessment year 2006-07. For the assessment years 2007-08
to 2008-09, separate proceedings under section 153A were initiated
against MIPL and the proceedings against MRPL for these two
assessment years were quashed by the Additional Commissioner of
Income-tax by order dated November 30, 2010 as the amalgamation
was disclosed. In addition, in the present case the assessment order
dated August 11, 2011 mentions the name of both the amalgamating
(MRPL) and amalgamated (MIPL) companies.
35. Secondly, in the cases relied upon, the amalgamated companies
had participated in the proceedings before the Department and the
courts held that the participation by the amalgamated company will
not be regarded as estoppel. However, in the present case, the
participation in proceedings was by MRPL – which held out itself as
MRPL.”
27. After copiously taking note of the disclosures which were made
in the course of assessment, it found that the following salient facts
emerged in the case of Mahagun Realtors:-
“40. The facts of the present case are distinctive, as evident from the
following sequence:
“1. The original return of MRPL was filed under section
139(1) on June 30, 2006.
2. The order of amalgamation is dated May 11, 2007 – but
made effective from April 1, 2006. It contains a condition –
clause 2 – whereby MRPL’s liabilities devolved on MIPL.
3. The original return of income was not revised even
though the assessment proceedings were pending. The last
date for filing the revised returns was March 31, 2008, after
the amalgamation order.
4. A search and seizure proceeding was conducted in
respect of the Mahagun group, including the MRPL and
other companies:
(i) When search and seizure of the Mahagun group took
place, no indication was given about the amalgamation.
(ii) A statement made on March 20, 2007 by Mr. Amit Jain,
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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 Rs.
5.072 crores, in the course of the statement recorded.
(iii) 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 August 27, 2008.
(iv) 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 August 27, 2008 in the
course of the admission, when a statement was recorded
under section 132(4) of the Act, by Mr. Amit Jain.
5. Upon being issued with a notice to file returns, a return
was filed in the name of MRPL on May 28, 2010. Before
that, on two dates, i.e., July 22/27, 2010, letters were written
on behalf of MRPL, intimating about the amalgamation, but
this was for the assessment year 2007- 08 (for which
separate proceedings had been initiated under section 153A)
and not for the assessment year 2006-07.
6. The return specifically suppressed – and did not disclose
the amalgamation (with MIPL) – as the response to query
27(b) was ‘N.A.’.
7. The return – apart from specifically being furnished in the
name of MRPL, also contained its permanent account
number.
8. During the assessment proceedings, there was full
participation- on behalf of all transferor companies, and
MIPL. A special audit was directed (which is possible only
after issuing notice under section 142). Objections to the
special audit were filed in respect of portions relatable to
MRPL.
9. After fully participating in the proceedings which were
specifically in respect of the business of the erstwhile
MRPL for the year ending March 31, 2006, in the cross-
objection before the Income-tax Appellate Tribunal, for the
first time (in the appeal preferred by the Revenue), an
additional ground was urged that the assessment order was a
nullity because MRPL was not in existence.
10. Assessment order was issued – undoubtedly in relation
to MRPL (shown as the assessee, but represented by the
transferee company MIPL).
11. Appeals were filed to the Commissioner of Income-tax
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(and a cross-objection, to the Income-tax Appellate
Tribunal) – by MRPL ‘represented by MIPL’.
12. At no point in time – the earliest being at the time of
search, and subsequently, on receipt of notice, was it plainly
stated that MRPL was not in existence, and its business
assets and liabilities, taken over by MIPL.
13. The counter-affidavit filed before this court – (dated
November 7, 2020) has been affirmed by Shri Amit Jain S/o
Shri P. K. Jain, who- is described in the affidavit as
‘Director of M/s. Mahagun Realtors (P.) Ltd., R/o…’.””
28. It was on the aforesaid set of facts that it ultimately came to hold
as under:
“41. In the light of the facts, what is overwhelmingly evident – is that
the amalgamation was known to the assessee, even at the stage when
the search and seizure operations took place, as well as statements
were recorded by the 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 Commissioner of Income-
tax, and a cross-appeal was filed before the Income-tax Appellate
Tribunal. 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 Assessing Officer, 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 Décor Pvt.
Ltd.). The mere choice of the Assessing Officer in issuing a separate
order in respect of MRPL, in these circumstances, cannot nullify it.
Right from the time it was issued, and at all stages of various
proceedings, the parties concerned (i. e., MIPL) treated it to be in
respect of the transferee company (MIPL) by virtue of the
amalgamation order – and section 394(2). Furthermore, it would be
anybody’s guess, if any refund were due, as to whether MIPL would
then say that it is not entitled to it, because the refund order would be
issued in favour of a non-existing company (MRPL). Having regard
to all these reasons, this court is of the opinion that in the facts of
this case, the conduct of the assessee, commencing from the date the
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search took place, and before all forums, reflects that it consistently
held itself out as the assessee. The approach and order of the
Assessing Officer is, in this court’s opinion in consonance with the
decision in Marshall and Sons (supra), which had held that:
“an assessment can always be made and is supposed to be
made on the transferee company taking into account the
income of both the transferor and transferee company.”
42. Before concluding, 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.
43. In view of the foregoing discussion and having regard to the facts
of this case, this court is of the considered view, that the impugned
order of the High Court cannot be sustained ; it is set aside. Since the
appeal of the Revenue against the order of the Commissioner of
Income-tax was not heard on the merits, the matter is restored to the
file of the Income-tax Appellate Tribunal, which shall proceed to
hear the parties on the merits of the appeal – as well as the cross-
objections, on issues, other than the nullity of the assessment order,
on merits. The appeal is allowed, in the above terms, without order
on costs.”
29. As is apparent from the aforesaid extracts, what appears to have
weighed upon the Supreme Court in Mahagun Realtors was a
deliberate attempt on the part of the successor assessee to misrepresent
and perhaps an evident failure to make a candid and full disclosure of
material facts. The Court in Mahagun Realtors noticed that even though
the factum of amalgamation was known to the assessee, it failed to
make appropriate disclosures either at the time of search or in the
statements which came to be recorded in connection therewith. Even
the Return of Income which came to be filed had suppressed the factum
of amalgamation. It also bore in consideration that the Return itself was
submitted in the name of the amalgamating entity. It was that very
entity in whose name further appeals came to be instituted. It was in
the aforesaid backdrop that the Supreme Court was constrained to
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observe that the conduct of the assessee was evidence of it having held
itself out to be the entity which had ceased to exist in the eyes of law
coupled with an abject failure on its part to have made a complete
disclosure.
30. These distinguishing features which imbue Mahagun Realtors
were succinctly noticed in Sony Mobile Communications with the Court
observing as under: –
“22. As is evident upon a perusal of the aforementioned extracts
from Mahagun Realtors the court distinguished the judgment
rendered in Maruti Suzuki, on account 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.
24. As noticed above, even after the Assessing Officer was informed
on December 6, 2013, that the amalgamation had taken place, and
was furnished a copy of the scheme, he continued to proceed on the
wrong path. This error continued to obtain, even after the Dispute
Resolution Panel had made course correction.
25. Thus, for the foregoing reasons, we are unable to persuade
ourselves with the contention advanced on behalf of the appellant-
Revenue, that this is a mistake which can be corrected, by taking
recourse to the powers available with the Revenue under section
292B of the Act.”
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31. We thus find ourselves unable to read Mahagun Realtors as a
decision which may have either diluted or struck a discordant chord
with the principles which came to be enunciated in Maruti Suzuki. We
also bear in mind the indisputable position of both judgments having
been rendered by co-equal Benches of the Supreme Court. Mahagun
Realtors is ultimately liable to be appreciated bearing in mind the
peculiar facts of that case including the conduct of the assessee therein.
It was those facets which appear to have weighed upon the Supreme
Court to hold against the assessee.
32. In view of the aforesaid, the position in law appears to be well-
settled that a notice or proceedings drawn against a dissolved company
or one which no longer exists in law would invalidate proceedings
beyond repair. Maruti Suzuki conclusively answers this aspect and
leaves us in no doubt that the initiation or continuance of proceedings
after a company has merged pursuant to a Scheme of Arrangement and
ultimately comes to be dissolved, would not sustain.
33. We note that in this batch of writ petitions and in light of the
disclosures which have been made, the assessees clearly appear to have
apprised their respective AOs of the factum of amalgamation and
merger at the first available instance. If the respondents chose to ignore
or acknowledge those fundamental changes, they would have to bear
the consequences which would follow. Once the Scheme came to be
approved, the transferor companies came to be dissolved by operation
of law. They, thus, ceased to exist in the eyes of law. Proceedings thus
drawn in their name would be a nullity and cannot be validated by
resort to Section 292B of the Act.
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Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
34. The submission of the respondents based on Sections 159 and
170 of the Act is equally misconceived. It becomes relevant to note that
Section 159 places the liability of a deceased assessee on its legal
representatives. It thus creates a right of recourse for the Revenue to
pursue and recover outstanding demands. We fail to appreciate how
that provision could have any bearing on the question that stood
posited. The proceedings impugned herein are not in relation to any
right of recovery that may have been asserted or proposed. The
challenge is to orders of assessment and initiation of reassessment made
or commenced against a non-existent entity.
35. Similarly, Section 170 deals with contingencies where a person
succeeds to or takes over an existing business. It thus provides that the
successor would be assessed in respect of income which arises or
accrues after the date of succession. The income earned prior to the date
of succession is liable to be taxed in the hands of the predecessor.
While the respondents sought to draw sustenance from the phrase
“when the predecessor cannot be found….” as appearing in sub-section
(2) thereof, we find ourselves unable to read that expression as being
akin to a dissolution of a corporate entity or its merger with another.
The expression “cannot be found” cannot be construed as having been
intended to cover situations where an entity ceases to exist in law by
virtue of an amalgamation or merger. Regard must also be had to the
heading of Section 170 and which speaks of succession to a business
“otherwise than on death”. It is thus concerned with a specific
contingency pertaining to succession to a business and how the
predecessor and successor are liable to be taxed. It has no concern with
the question of whether a notice or order in the name of a non-existent
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Signing Date:26.09.2024
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entity could be treated as valid in law.
ITA 116/2023 [International Hospital Ltd. Vs. DCIT Circle 12(2)]
36. The aforenoted appeal which stood tagged with the batch poses
the following question of law for our consideration: –
“Whether the Income Tax Appellate Tribunal has misdirected itself in
law and on facts in sustaining the order of the Commissioner of
Income Tax (Appeals) dated 30.05.2019 and the order dated
29.01.2019 passed by the Assessing Officer (AO) under Section 154
of the Income Tax Act, 1961?”
37. Escorts Heart and Super Specialty Institute Ltd 23 is stated to
have filed its Return of Income for AY 2013-14 on 30 September 2013.
Pursuant to a Scheme of Arrangement which came to be sanctioned by
the Punjab and Haryana High Court on 13 December 2013 it merged
with International Hospital Limited 24 , the appellant herein. The
appointed date under the Scheme was stipulated to be 01 January 2013.
A notice under Section 143(2) came to be issued in the name of
EHSSIL on 05 September 2014. During the course of the assessment
which ensued, the Revenue is stated to have been duly apprised the
respondents of the sanction of the Scheme and EHSSIL having merged
with IHL. The appellants have also placed on our record a letter dated
16 February 2016 in terms of which details relating to the Scheme were
duly provided to the AO.
38. The record further bears out that the AO had duly acknowledged
the factum of merger and had specifically alluded to the order of the
High Court. However, the ultimate assessment order dated 28 March
2016 came to be drawn in the name of EHSSIL. In the appeal which
23
EHSSIL
24
IHL
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was preferred by IHL before the Commissioner of Income Tax
(Appeals)25, a specific ground with respect to invalidity of that order on
the ground of the same having been made in the name of EHSSIL was
taken. It was during the pendency of that appeal that the AO invoked
Section 154 asserting that the assessment order had inadvertently come
to be framed in the name of EHSSIL. It is the validity of this order
which was questioned before the Tribunal. The Tribunal has upheld the
action of the AO leading to the filing of the present appeal.
39. We find ourselves unable to be concur with the view as taken by
the Tribunal for the following reasons. Undisputedly, the factum of
merger was duly brought to the notice of the AO. In fact, the said
authority has duly taken note of the order of the High Court and in
terms of which the Scheme had come to be approved. However,
inexplicably, it proceeded to frame an order in the name of EHSSIL.
We note that the Return in this case was submitted by EHSSIL prior to
the Scheme being sanctioned. It was perhaps in that backdrop that the
notice under Section 143(2) came to be issued in its name, albeit after
the Scheme had come into force. The assessment proceedings were thus
ongoing at the time when the Scheme came to be sanctioned.
40. However, and admittedly, the factum of merger had been duly
brought to the attention of the AO. The merger was taken into
consideration at more than one place in the order of assessment that
came to be framed. Despite the above, the AO proceeded to draw the
order in the name of an entity which had ceased to exist. We also bear
in consideration the indubitable fact that the rectification order came to
be passed three years after the framing of the original order of
25
CIT(A)
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Signing Date:26.09.2024
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assessment, and that too, during the pendency of the appeal of the
assessee and where a specific ground of challenge was raised in this
regard. This was therefore not a case of discovery of an inadvertent
error or mistake immediately after the passing of an order.
41. We also bear in consideration Maruti Suzuki having clearly held
that such a mistake would not fall within the ken of Section 292B of the
Act. An exercise of rectification as undertaken in the present case, if
accorded a judicial imprimatur, would in effect amount to recognising a
power to amend, modify or correct in an attempt to overcome a
fundamental and jurisdictional error contrary to the principles
enunciated in Maruti Suzuki.
42. We also cannot lose sight of the fact that this was not a case
where the assessee had attempted to mislead or suppress material facts
and which may have warranted the case of the assessee being placed in
the genre which was considered in Mahagun Realtors. The mere
submission of replies on the letter head of EHSSIL also fails to
convince us to hold in favour of the Revenue. In any event, none of the
authorities below have held that the appellant was guilty of suppression.
We would thus be inclined to allow the instant appeal and answer the
question as posed in favour of the appellant and against the Revenue.
W.P.(C) 5021/2022, W.P.(C) 5022/2022, and W.P.(C) 5118/2022
[M/s Nokia Solutions and Networks India Private Limited
(Successor of Nokia Siemens Networks India Private Limited) vs.
Deputy Commissioner of Income Tax, Circle 16(1) and Anr.]
43. These writ petitions assail the notices issued under Section
142(1) on the ground that although they have been drawn in the name
of the resultant entity which came into existence consequent to a
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By:KAMLESH KUMAR
Signing Date:26.09.2024
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Scheme being approved, they bear the PAN of the erstwhile entity and
which had since then ceased to exist. We find ourselves unable to place
that mistake in the category of a “fundamental flaw” or “incurable
illegality” as explained in Maruti Suzuki. Although, reliance is placed
on a decision rendered inter partes in Pr. Commissioner of Income
Tax-6 vs. Nokia Solutions & Network India Pvt. Ltd (Formerly
known as, Nokia Siemens Network Pvt. Ltd.) 26, the decision in Nokia
Solutions was dealing with a case of an incurable illegality. This since
the directions of the Dispute Resolution Panel as well as the final order
of assessment were made in the name of an entity which had ceased to
exist. The case in Nokia Solutions is distinct from the facts which
obtain in the present writ petitions and where the only mistake which is
alluded to is the mentioning of a wrong PAN.
44. Although in the writ petition it is averred that the original Section
148 notice was never served upon the petitioner, we find that the order
of 15 March 2022 speaks of various subsequent notices which had been
issued and remained unanswered. In any event, the present writ
petitions merely impugn the notice under Section 142(1) with no
challenge having been mounted in respect of the original notice of
reassessment. These petitions would consequently merit dismissal.
45. The present order, however, would be without prejudice to such
other rights and contentions that may be available and would be open to
be canvassed in the ongoing reassessment action.
W.P.(C) 5475/2022 [Shakuntlam Softech Private Limited (now
amalgamated with Shakuntlam Securities Private Limited) vs.
Income Tax Officer Ward 23(1) Delhi & Anr.] and W.P.(C)
26
ITA 135/2018 decided on 06 February 2018
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ITA 116/2023 & other connected matters Page 48 of 52
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By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
4558/2023 [Suncity Hi-Tech Infrastructure Private Limited – After
Merger of M/s Super Built Real Estates and Land Developers Pvt.
Ltd. vs. Income Tax Officer, Ward 24-1, Delhi & Anr.]
46. Although these matters were included in the batch, there appears
to be a factual dispute as to whether disclosures with respect to the
sanction of the Scheme were made in the course of the assessment
proceedings. The respondents categorically assert that no information
with respect to a Scheme that may have been approved was provided
during the course of assessment. The petitioners on the other hand aver
that the respondents had been duly placed on notice of the proceedings
pending before the NCLT and which had preceded the ultimate
approval of the Scheme. In W.P.(C) 4558/2023, the petitioners allude to
a communication issued by the Regional Director while the Scheme
was pending approval.
47. As is manifest from the aforesaid recordal of facts, there was an
abject and evident failure on the part of the petitioners to apprise the
respondents of a Scheme which stood duly approved. Even if the
concerned AO were assumed to have derived knowledge of the
pendency of proceedings before the NCLT or called upon to furnish a
consent to the proposed Scheme, the same would not absolve the
assessee from the obligation of duly apprising the respondents once a
Scheme of Arrangement came to be approved. These writ petitions
would thus merit dismissal.
OPERATIVE DIRECTIONS
48. We accordingly allow the following writ petitions and quash the
below mentioned notices/orders:-
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ITA 116/2023 & other connected matters Page 49 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Case Number Date of Impugned Section under which the
Notice/Order Notice/Order has been issuedW.P(C)13807/2022 15 April 2021 Notice under Section 148
25 May 2022 Order under Section 148A(b)
28 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C)11498/2019 28 March 2019 Notice under Section 148
W.P.(C) 1894/2020 29 March 2019 Notice under Section 148
W.P.(C)10882/2021 30 June 2021 Assessment Order under Section
143(3) read with Section 144BW.P.(C) 13862/2021 28 March 2021 Notice under Section 148
W.P.(C) 13883/2021 28 March 2021 Notice under Section 148
W.P.(C) 13930/2021 26 March 2021 Notice under Section 148
W.P.(C) 14005/2021 26 March 2021 Notice under Section 148
W.P.(C) 14061/2021 26 March 2021 Notice under Section 148
W.P.(C) 14062/2021 26 March 2021 Notice under Section 148
W.P.(C) 14296/2021 28 March 2021 Notice under Section 148
W.P.(C) 14306/2021 26 March 2021 Notice under Section 148
W.P.(C) 14798/2021 26 March 2021 Notice under Section 148
W.P.(C) 4035/2022 26 March 2021 Notice under Section 148
W.P.(C) 4038/2022 26 March 2021 Notice under Section 148
W.P.(C) 4103/2022 26 March 2021 Notice under Section 148
W.P.(C) 4925/2022 26 March 2021 Notice under Section 148
W.P.(C) 5082/2022 26 March 2021 Notice under Section 148
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ITA 116/2023 & other connected matters Page 50 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
W.P.(C) 5134/2022 26 March 2021 Notice under Section 148W.P.(C) 5161/2022 27 March 2021 Notice under Section 148
W.P.(C) 5165/2022 26 March 2021 Notice under Section 148
W.P.(C) 5166/2022 26 March 2021 Notice under Section 148
W.P.(C) 5171/2022 26 March 2021 Notice under Section 148
W.P.(C) 7151/2022 28 March 2022 Assessment Order under Section
147 read with Section 144W.P.(C) 7217/2022 30 March 2022 Assessment Order under Section
147 read with Section 144W.P.(C) 13991/2022 21 June 2021 Notice under Section 148
23 May 2022 Order under Section 148A(b)
25 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 14034/2022 27 May 2022 Order under Section 148A(b)
28 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 17290/2022 25 June 2021 Notice under Section 148
30 May 2022 Order under Section 148A(b)
30 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 17329/2022 20 April 2021 Notice under Section 148
27 May 2022 Order under Section 148A(b)
28 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 3885/2023 15 April 2021 Notice under Section 148
26 May 2022 Order under Section 148A(b)
27 July 2022 Order under Section 148A(d) and
Notice under Section 148Signature Not Verified
ITA 116/2023 & other connected matters Page 51 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
W.P.(C) 5868/2023 30 June 2021 Notice under Section 148
20 May 2022 Order under Section 148A(b)
30 July 2022 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 7775/2023 14 March 2023 Order under Section 148A(b)
23 March 2023 Order under Section 148A(d) and
Notice under Section 148W.P.(C) 7487/2024 23 February 2024 Order under Section 148A(b)
22 March 2024 Order under Section 148A(d) and
Notice under Section 148
49. For reasons assigned in Paragraphs 43 to 45 we dismiss
W.P.(C) 5021/2022, W.P.(C) 5022/2022, and W.P.(C) 5118/2022. All
rights and contentions of respective parties on merits are kept open.
50. For reasons assigned in Paragraphs 46 and 47 we dismiss
W.P.(C) 5475/2022 and W.P.(C) 4558/2023. All rights and contentions
of respective parties on merits are kept open.
51. In light of our conclusion rendered in paragraph 42, ITA
116/2023 shall stand allowed. The order of the Tribunal dated 23
September 2022 is set aside. The appellant would be entitled to
consequential relief.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
SEPTEMBER 26, 2024/neha/RW
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ITA 116/2023 & other connected matters Page 52 of 52
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
APPENDIX- A
IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI
Landscape Chart in: Non-existent Entities Batch
NDOH: 11.09.2024
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
67. WP(C) No.13807 of 2022 2015-16 w.e.f. 28.09.2017 08.12.2017 29.12.2017 29.03.2019 Order dated 15.04.2021
01.04.2016 (w.e.f. (Revised) 10.12.2018 passed Notice (section
Religare Enterprises Ltd. [as 01.04.2016) under section 148 of the Act)
successor in interest of Religare [@ Pg.193 [@ Pg.168/ [@Pg.169/ [@ Annex I/ 143(3) of the Act
Securities Ltd.] vs. ACIT /PDF 198] PDF 173] [@ Pg.190/ PDF 174] PDF 240 New regime
PDF 195] onwards] [@Pg.157/ PDF
162 onwards] [@ Pg.92/ PDF
97]
68. WP(C) 11498/2019 2012-13 01.01.2014 – 21.05.2014 09.02.2015 09.02.2015 02.11.2016 28.03.2019
BABA LEASE & INVESTMENT (Through ITR (ITR of (Assessment u/s Notice to
PRIVATE LIMITED of Transferor Transferor 143(3) the case of Transferor
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
company for company for Transferee company company)
(Transferor company – Ladliji AY 2014-15 ) AY 2014-15) for AY 2014-15,
enterprises private limited PAN & recording the facts Erstwhile
AAECR1528F) 14.03.2016 of such regime
(through letter ) amalgamation)
Transferee company- BABA &
LEASE & INVESTMENT 02.11.2016
PRIVATE LIMITED -PAN ( In the
assessment
order of 2014-
15 in the case
of Transferee
company such
fact was
recorded by the
AO)
69. WP(C) 1894/2020 2012-13 01.01.2014 – 21.05.2014 09.02.2015 09.02.2015 02.11.2016 29.03.2019
BABA LEASE & INVESTMENT (Through ITR (ITR of (Assessment u/s Notice to
PRIVATE LIMITED of Transferor Transferor 143(3) the case of Transferor
company for company for Transferee company company)
(Transferor company – Madhav Fin AY 2014-15 ) AY 2014-15) for AY 2014-15,
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
cap Private limited PAN & recording the facts Erstwhile
AAMCS4890B) 14.03.2016 of such regime
(through letter ) amalgamation)
Transferee company- BABA &
LEASE & INVESTMENT 02.11.2016
PRIVATE LIMITED -PAN ( In the
assessment
order of 2014-
15 in the case
of Transferee
company such
fact was
recorded by the
AO)
70. WP(C) No.10882/2021 2017-18 w.e.f. – 20.12.2018 Emails dated – TPO Order passed 25.01.2021
01.04.2018 20.12.2019, on 25.01.2021, draft TPO Order
Gartner India Research & Advisory 07.08.2020, Assessment Order
Services Private Ltd. vs. Assessing 05.11.2020 and dated 07.04.2021, 07.04.2021
Officer, NFAC & Anr. letter dated and final Draft
19.01.2021 assessment order Assessment
filed before dated 30.06.2021 Order
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
TPO passed by AO
30.06.2021
Letter dated Final
31.10.2019, Assessment
14.12.2020 & Order
04.02.2021
filed before AO
*Distinguishing features:
The subject writ petition has been filed challenging the order dated 25.01.2021 passed by the TPO and consequential draft assessment order dated 07.04.2021 and final
assessment order dated 30.06.2021 passed by the AO for the subject assessment year in the name of the non-existent entity which is non-est, invalid, bad in law and liable to be
quashed.
The Revenue Respondent has duly accepted in the Counter Affidavit filed, in respect of the subject writ petition that the Petitioner had duly informed about the fact of merger
to the TPO during transfer pricing proceedings for the subject assessment year and had also requested for transfer of case of the Petitioner to the correct jurisdiction post-
merger.
The present case admittedly falls under Category I and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC)
and CIT vs Sony Mobile Communications Ind (P.) Ltd. : [2023] 456 ITR 753 (Del) as impugned orders have been passed by the AO/ TPO on the non-existent entity despite
numerous intimations being filed by the Petitioner with AO/ TPO at various intervals intimating about the factum of merger.
71. WP(C) No.13862/2021 2017-18 w.e.f. – 02.08.2018 19.11.2018 Statutory – 28.03.2021
01.04.2016 notice u/s 148 Notice (section
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
BSBK Engineers Pvt. Ltd. (resulting [ANN: P-4] issued to 148 of the Act)
company of Vogue Leasing & Page-49 amalgamating
Finance Company Pvt. Ltd. vs. ACIT entity i.e., Erstwhile
Vogue regime
Leasing which
ceased to
exist w.e.f –
02.08.2018.
72. WP(C) No.13883/2021 2017-18 w.e.f. – 02.08.2018 19.11.2018 Statutory – 28.03.2021
01.04.2016 notice u/s 148 Notice (section
BSBK Engineers Pvt. Ltd. (resulting [ANN: P-4] issued to 148 of the Act)
company of Madhulika Finance Page-49 amalgamating
Company Pvt. Ltd. vs. ACIT entity i.e., Erstwhile
Madhulika regime
Finance
which ceased
to
exist w.e.f –
02.08.2018.
73. WP(C) No.13930 of 2021 2017-18 w.e.f. 28.09.2017 08.12.2017 29.12.2017 29.03.2019 Order dated 26.03.2021
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
01.04.2016 (w.e.f. (Revised) 31.03.2021 passed Notice (section
Religare Enterprises Ltd [as 01.04.2016) [@ Pg.128-130] under section 148 of the Act)
successor in interest of RGAM [@ Pg. 86] [@ Pg.64] [@Annex E/ 143(3)/144C,
Investment Advisers Pvt. Ltd.] vs. [@ Pg.83] Pg.131 assessing the Erstwhile
ACIT onwards revised return of regime
income
[@ Pg.63]
[@ Annex G/
Pg.227 onwards]
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and
despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has
been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) &
Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC)
74. WP(C) No.14005 of 2021 2017-18 w.e.f. 28.09.2017 08.12.2017 29.12.2017 29.03.2019 Order dated 26.03.2021
01.04.2016 (w.e.f. (Revised) 31.03.2021 passed Notice (section
Religare Enterprises Ltd [as [@Pg.64] 01.04.2016) [@Pg.128-130] under section 148 of the Act)
successor in interest of Religare [@Pg.86] [@ Annex E/ 143(3)/144C,
Capital Markets (India) Pvt. Ltd.] vs. [@ Pg.83] Pg.131 assessing the Erstwhile
ACIT onwards] revised return of regime
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
income
[@Pg. 63]
[@ Annex G/
Pg.227-232]Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and
despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has
been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) &
Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC)
75. WP(C) No.14061 of 2021 2017-18 w.e.f. 28.09.2017 08.12.2017 29.12.2017 29.03.2019 Order dated 26.03.2021
01.04.2016 (w.e.f. (Revised) 31.03.2021 passed Notice (section
Religare Enterprises Ltd [as [@Pg.64] 01.04.2016) [@Pg.128-130] under section 148 of the Act)
successor in interest of Religare Arts [@ Pg.86] [@ Annex E/ 143(3)/144C,
Investment Management Ltd.] vs. [@ Pg.83] Pg.131 assessing the Erstwhile
ACIT onwards] revised return of regime
income
[@ Pg.63]
[@ Annex G/
Pg.227-232]
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and
despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has
been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) &
Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC)
76. WP(C) No.14062 of 2021 2017-18 w.e.f. 28.09.2017 08.12.2017 29.12.2017 29.03.2019 Order dated 26.03.2021
01.04.2016 (w.e.f. (Revised) 31.03.2021 passed Notice (section
Religare Enterprises Ltd [as [@Pg.64] 01.04.2016) [@Pg.128-130] under section 148 of the Act)
successor in interest of RGAM [@Pg.86] [@ Annex E/ 143(3)/144C,
Capital India Ltd.] vs. ACIT [@ Pg.83] Pg.131 assessing the Erstwhile
onwards] revised return of regime
income
[@ Pg.63]
[@ Annex G/
Pg.227-232]
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite the categorical NOC given by IT Dept. before NCLT on 28.09.2017, and
despite intimation of amalgamation/surrender of old PAN by the Petitioner (amalgamated entity) on 29.12.2017. The present case admittedly falls under Category I as notice has
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
been issued in the name of the amalgamating entity alone and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) &
Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC)
77. WP(C) No.14296/2021 2017-18 w.e.f. – 02.08.2018 19.11.2018 Statutory – 28.03.2021
01.04.2016 notice u/s 148 Notice (section
BSBK Engineers Pvt. Ltd. (resulting [ANN: P-4] issued to 148 of the Act)
company of Parishudh Finance Page-49 amalgamating
Company Pvt. Ltd. vs. ACIT entity i.e., Erstwhile
Parishudh regime
Finance
which ceased
to
exist w.e.f –
02.08.2018.
78. WP(C) No. 14306 of 2021 2017-18 w.e.f. – 28.11.2017 31.03.2018 25.01.2018 Order dated 26.03.2021
01.04.2016 (w.e.f. (Belated) 07.12.2019 passed Notice (section
Rangoli Resorts Pvt. Ltd. [as 01.04.2016) [@ Annex D/ under section 148 of the Act)
successor in interest of Ployflex [@Pg.68] Pg.109] [@Annex E/ 143(3) assessing the
Marketing Pvt. Ltd.] vs. ACIT [@ Annex B/ Pg.110 belated return of Erstwhile
Pg.61] onwards] income regimeSignature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
[@ Annex F/ [@ Pg.60]
Pg.160-167]
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite intimation of amalgamation/surrender of old PAN by the Petitioner
(amalgamated entity) on 31.03.2018. The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone and is squarely
covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC)
79. WP(C) No.14798/2021 2013-14 w.e.f. 18.12.2017 09.07.2018 18.09.2018 & – Merged entity filed 26.03.2021
01.04.2016 04.02.2019 return on Notice (section
Madhu Viniyog Pvt. Ltd. (Marigold 21.09.2018 148 of the Act)
Nirman Pvt. Ltd. merged with
Petitioner) vs. DCIT Erstwhile
regime
80. WP(C) No.4035/2022 2017-18 w.e.f. – 25.09.2017 & 30.11.2017 30.11.2017 Draft Order passed 26.03.2021
01.04.2016 28.09.2017 (filed on (original) is dated 29.03.2021 Notice (section
Qualcomm India Pvt. Ltd. after 04.12.2017) (aspect of and final 148 of the Act)
merger of CSR Technology India and several merger is assessment order is
Pvt. Ltd. vs. ACIT letters disclosed) dated 31.01.2022 Erstwhile
thereafter regime
Remarks:
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite intimation of amalgamation/surrender of old PAN/request for transfer
of TDS/advance tax credit by the Petitioner (amalgamated entity).
The present case admittedly falls under Category II as notice has been issued in the name of the amalgamating entity (Pg. 129 of the writ petition (Annexure P-8) and the notice
is in the name of- “CSR Technology (India) Pvt. Ltd. (Now merged with Qualcomm India Pvt. Ltd.)”. It is squarely covered by the law laid down in the case of PCIT v. Maruti
Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC). It is stated that identical was the position in Maruti Suzuki also and hence
Hon‟ble Apex Court has discussed the cases falling in Category II in detail and ruled in favor of the Assessee.
The revised return has been filed by Qualcomm India Pvt. Ltd. after incorporating all the incomes/TDS/advance tax of the amalgamating entity and the same has been assessed
to tax as well u/s 143(3) proceedings (Annexure P-6). During assessment proceedings, a specific question was asked about the merger, which was duly explained and responded
to.
The aspect of merger was also informed in the ROI under the „Business Organization‟ Column (Annexure P5). Hence, the Respondents have been well aware of the
merger/amalgamation.
81. WP(C) No.4038/2022 2017-18 w.e.f. – 25.09.2017 & 30.11.2017 30.11.2017 Draft Order passed 26.03.2021
01.04.2016 28.09.2017 (filed on (Original) is dated 29.03.2021 Notice (section
Qualcomm India Pvt. Ltd. after 04.12.2017) (aspect of and final 148 of the Act)
merger of Ikanos Communications and several merger is assessment order is
India Pvt. Ltd. vs. ACIT letters disclosed) dated 31.01.2022 Erstwhile
thereafter regime
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite intimation of amalgamation/surrender of old PAN/request for
transfer of TDS/advance tax credit by the Petitioner (amalgamated entity).
Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on
The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone (Pg. 129 of the writ petition-Annexure P-8). It is
squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC).
The revised return has been filed by Qualcomm India Pvt. Ltd. after incorporating all the incomes/TDS/advance tax of the amalgamating entity and the same has been assessed
to tax as well u/s 143(3) proceedings (Annexure P-6). During assessment proceedings, a specific question was asked about the merger, which was duly explained and
responded to.
The aspect of merger was also informed in the ROI under the „Business Organization‟ Column (Annexure P5). Hence, the Respondents have been well aware of the
merger/amalgamation
82. WP(C) No.4103/2022 2017-18 w.e.f. – 25.09.2023 & 30.11.2017 30.11.2017 Draft Order passed 26.03.2021
01.04.2016 28.09.2017 (filed on (Original) is dated 29.03.2021 Notice (section
Qualcomm India Pvt. Ltd. after 04.12.2017) (aspect of and final 148 of the Act)
merger of CSR Technology India and several merger is assessment order is
Pvt. Ltd. vs. ACIT letters disclosed) dated 31.01.2022 Erstwhile
thereafter regime
Remarks:
Notice u/s 148 (old regime) issued in the name of non-existent amalgamating entity on 26.03.2021 despite intimation of amalgamation/surrender of old PAN/request for
transfer of TDS/advance tax credit by the Petitioner (amalgamated entity).
The present case admittedly falls under Category I as notice has been issued in the name of the amalgamating entity alone (Pg. 133 of the writ petition-Annexure P-8). It is
squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC).
The revised return has been filed by Qualcomm India Pvt. Ltd. after incorporating all the incomes/TDS/advance tax of the amalgamating entity and the same has been assessed
to tax as well u/s 143(3) proceedings (Annexure P-6). During assessment proceedings, a specific question was asked about the merger, which was duly explained and
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
responded to.
The aspect of merger was also informed in the ROI under the „Business Organization‟ Column (Annexure P5). Hence, the Respondents have been well aware of the
merger/amalgamation
83. WP(C) No.4925/2022 2016-17 w.e.f. – 14.06.2018 Amalgamation 26.09.2016 – 26.03.2021
01.04.2015 discussed in (Original) Notice (section
Radiant Polymers Pvt. Ltd. vs. ACIT assessment 148 of the Act)
order dated
22.04.2021 of Erstwhile
successor for regime
AY 2018-19.
Assessment
87. WP(C) No.5082/2022 2017-18 w.e.f. – 14.06.2018 proceedings 31.10.2017 17.12.2019 26.03.2021
01.04.2015 initiated vide (Original) Notice (section
Radiant Polymers Pvt. Ltd. vs. ACIT notice dated 148 of the Act)
11.03.2022 for
AY 2018-19 Erstwhile
against regime
predecessor is
dropped
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
Remarks for Radiant Polymers:
Revenue has wrongly contested in its chart that the intimation of amalgamation has not been given to them (this has been done without filing a counter affidavit). The Counsel for
the Petitioner has sent an e-mail dated 24.08.2024 whereby it has been asserted that the due process followed in case of amalgamation matters before NCLT, in itself, incorporates
such intimation. The AO vide notice dated 21.12.2020 for AY 2018-19 (on the successor) had called for the details of amalgamation and the assessee vide reply dated 19.01.2021
submitted the copy of court order regarding Amalgamation and copy of forms filled with MCA. Thereafter, the AO, vide notice dated 19.03.2021 for AY 2018-19 asked the following
query “5. During the year, amalgamation has taken place. Please submit the details and explain with proper justification” in respect of which the submission was filed vide letter dated
26.03.2021 as “A wholly owned subsidiary namely Radiant Complast Private Limited was merged with the company as per court order. Copy of court order regarding Amalgamation and
copy of forms filled with MCA were already been filed as Annexure -9 and 10 with our reply dated 19/01/2021.Kindly refer the same.” Thereafter, the assessment order dated 22.04.2021
was framed for AY 2018-19, which specifically mentions “amalgamation” as one of the major issues examined.
All the above documents were duly provided to the counsel for the Respondents vide e-mail dated 24.08.2024 sent by the counsel for the Petitioner.
93. WP(C) No.5475/2023 2017-18 w.e.f. – 07.06.2019 01.04.2019 The statutory Order dated 31.03.2021
01.04.2018 (w.e.f. notice u/s. 148 04.03.2022 passed Notice (section
Shakuntlam Softech Private Limited 01.04.2018) issued to u/s. 144 r.w.s. 144B 148 of the Act)
(now amalgamated with company of the Act for AY
Shakuntalam Securities Pvt. Ltd.) vs. which already 2017-18 in the Erstwhile
ITO stands name of regime
amalgamated amalgamated
company
94. WP(C) No.7151/2022 2013-14 w.e.f. – Hon‟ble Delhi 30.11.2019 Not applicable 14.02.2017 (on the 30.03.2021
01.04.2011 High Court (ROI for AY as the successor (notice under s.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
Mercer Consulting (India) Pvt. Ltd. & 2013-14) amalgamation 148)
vs. DCIT Hon‟ble High order was
Court of Letter dated passed prior to 28.03.2022
Punjab & 24.07.2014 – commenceme (assessment
Haryana proceedings for nt of AY order)
28.02.2013 AY 2012-13 2013-14 and
and dropped on the 2016-17
95. WP(C) No.7217/2022 2016-17 w.e.f. – 23.05.2013 predecessor 20.01.2020 (on the 27.03.2021
01.04.2011 entity after successor (notice under s.
Mercer Consulting (India) Pvt. Ltd. being intimated 148)
vs. DCIT that the
predecessor 30.03.2022
ceased to exist (assessment
@pg 153 order)
TPO order for
the preceding
year i.e. AY
2012-13 dated
29.01.2016
passed in case
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
of the successor
categorically
records that the
predecessor
entity ceased to
exist @pg 157
Remarks for Mercer Consulting:
The Petitioner has asserted that the amount of addition proposes has already been considered in the P&L account of the successor and the said fact regarding the interest income has
been admitted by the Respondents. As regards, the expenditure proposed to be added, the counsel for the Revenue was supposed to obtain instruction which were never intimated to the
Hon‟ble Court [refer interim order dated 24.05.2022].
96. WP(C) No.13991/2022 2017-18 w.e.f. – 01.07.2019 23.08.2019 Period to file No notice issued 21.06.2021
01.04.2016 revised return u/s. 143(2)
Ekum Design Pvt. Ltd. vs. ITO expired before Notice (section
approval of 148 of the Act)
NCLT
Erstwhile
regime
Remarks: –
The present case clearly falls under Category I, as the notice U/s 148A(b) was issued solely in the name of the amalgamating entity. This situation is unequivocally covered by the legal
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
precedents set forth in PCIT v. Maruti Suzuki India Ltd. [2019] 416 ITR 613 (SC), which establish that any proceedings initiated in the name of a non-existent entity are void ab initio.
97. WP(C) No.14034/2022 2014-15 w.e.f. – 18.01.2021 06.09.2019 – 15.02.2021 – Return was 19.04.2021
01.04.2018 (w.e.f. Intimation to revised Tax processed Notice (section
Siddheshwari Tradex Pvt. Ltd. 01.04.2018) AO Audit filed u/s.143(1) of the 148 of the Act)
(successor of Danta Enterprises Pvt. 09.09.2019 – Act, for the relevant
Ltd.) vs. ACIT Intimation to 15.02.2021 – assessment year Erstwhile
PCIT ITR filed regime
intimating the
Letter dtd. fact of
23.01.2020 amalgamation
(sent via post
on 25.01.2020)
– 2nd intimation
Distinguishing Features:
Present case is clearly a category-I matter since original notice u/s 148 and notice u/s. 148A(b) was issued in the name of amalgamating/ non-existent company only;
Although Notice u/s. 148A(b) was issued by R1, Order u/s. 148A(d) passed by R2 (different authority);
No taxability in terms of section 56(2)(viia)/ no indication of any income having escaped assessment
Re-opening based on an order subsequently reversed in appeal.
Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on 100. WP(C) No. 3885/2023 2014-15 01.04.2013 - 09.09.2014 It is recorded in 26.05.2022 the order dated Notice u/s Ncubate India Services Pvt Ltd 09.09.2014 that 148A(b) of the the Income Tax Act. Department has not raised any 27.07.2022 objections. Order u/s 148A(d) of the Further, vide Act. reply dated 17.04.2021, the 27.07.2022 factum of Notice u/s 148 amalgamation of the Act was once again intimated. 101. WP(C) No.4473 of 2023 2017-18 w.e.f. Intimation 21.12.2020 26.07.2021 - Scrutiny assessment 30.06.2021 01.04.2020 filed with was initiated u/s Notice under Capgemini Technology Services AO on 143(2), however, section 148 of India Ltd. [as successor in interest of 30.05.2020. final assessment the Act - Aricent Technologies Pvt. Ltd.] vs. order was not Erstwhile Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on ACIT passed before the Regime expiry of period of limitation. Hence, 24.05.2022 - the original Notice pursuant assessment to apex Court proceedings became decision in barred by limitation. Ashish Agarwal 29.07.2022 - Order u/s 148A(d) and fresh notice u/s 148 of the Act
Distinguishing features from the facts arising in the case of Mahagun Realtors:
(a) Scrutiny assessment was originally initiated u/s 143(2), however, the final assessment order was not passed before the expiry of period of limitation provided under section 153
of the Act. Thus, the assessing officer attempted to initiate re-assessment proceedings.
(b) In the course of the proceedings before the Regional Director (RD), the Petitioner vide email dated 30.05.2020 (during Covid-19) informed the assessing officer that Aricent
Technologies Pvt Ltd is being merged with Aricent Technologies (Holdings) Ltd alongwith Form CAA-9 and scheme of merger. [Refer: Annexure „R‟ @ Pg. 268];
(c) Vide letter dated 26.07.2021 filed with the assessing officer, the Petitioner duly informed / reiterated that the erstwhile entity stands merged with Aricent Technologies
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
(Holdings) Ltd. [Refer: Annexure „S‟ @ Pg. 270]
(d) Petitioner filed detailed reply dated 15.09.2021 before the assessing officer raising the objections that proceedings cannot be initiated on non-existent entity. [Refer: Annexure
„L‟ @ Pg. 221]
(e) Petitioner filed objections dated 07.06.2022 in response to intimation/ letter dated 24.05.2022 reiterating that the erstwhile entity stands merged with Aricent Technologies
(Holdings) Ltd. [Refer: Annexure „N‟ @ Pg. 244]
(f) Even after repeatedly informing the assessing officer about the amalgamation of Aricent Technologies Pvt Ltd with Aricent Technologies (Holdings) Ltd, the assessing officer
passed the order dated 29.07.2022 under section 148A(d) of the Act and issued the notice dated 29.07.2022 under section 148 in the name and PAN of Aricent Technologies
Pvt Ltd. [Refer: Annexure „C‟ @ Pg. 97 and Annexure „D‟ @ Pg. 103]
(g) Shockingly, in the impugned order dated 29.07.2022 passed under section 148A(d) of the Act, the assessing officer himself recorded the fact that Aricent Technologies Pvt Ltd.
merged with Aricent Technologies (Holdings) Ltd, even then, the Respondents are taking an averment that the facts of amalgamation was not informed to assessing officer
before issuance of jurisdictional notice under section 148 on 29.07.2022. [Refer: Annexure „C‟ @ Pg. 99]
Thus the Petitioner has repeatedly informed the assessing officer regarding the amalgamation and, therefore, the decision in the case of Mahagun Realtors does not apply on facts of
the present case.
102. WP(C) No.4558/2023 2013-14 w.e.f. – 21.03.2016 02.03.2017 06.09.2013 – 30.06.2021
01.04.2014 Notice (section
Suncity Hi-Tech Infrastructure Pvt. 148 of the Act)
Ltd. after merger of M/s Super Built Erstwhile
Real Estates and Land Developers regime
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
Pvt. Ltd.
27.05.2022
Notice (section
148A(b) of the
Act)
30.07.2022
Order (section
148A(d) of the
Act)
30.07.2022
Notice (section
148 of the Act)
Remarks:
Notice u/s 148 issued in the name of non-existent amalgamating entity on 30.06.2021 (Annexure P-4, Pg. 108). Thereafter, pursuant to Ashish Agarwal(supra), notice under
Section 148A(b) was issued on 27.05.2022 in the name of non-existent amalgamating entity (Annexure P-8, Pg. 182). Even Section 148A(d) order dated 30.07.2022 and
impugned Section 148 notice dated 30.07.2022 (Annexure P-12, Pg. 285 and Pg. 292).
The present case admittedly falls under Category I as notice has been issued/order has been passed in the name of the amalgamating entity alone. It is squarely covered by the
law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC).
The Respondent was made aware of the fact of the amalgamation while the proceedings for approval of amalgamation was pending before this Hon‟ble Court Company
Petition 731/2015 (para 8, Annexure P-2, Pg. 69). Furthermore, the Resultant Merged Company (i.e., the Petitioner herein) has been regularly assessed under scrutiny
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
assessment proceedings from time-to-time post-merger and thus the fact of merger was privy to the Tax Department. The fact that the SBRL stands merged with the Petitioner
Company was well within the knowledge of the Income Tax Department as on as many as several prior occasions, the same was disclosed; (i) during scrutiny assessment
proceedings pertaining to AY 2015- 16, wherein the Audited Financial Statements of the Petitioner evidencing the fact of the merger was submitted (Pg.73-74 and Pg.83
Annexure P-3). (ii) intimation to Respondent No. 1 vide W.P. (c) 9137/2021 on 21.08.2021, and (iii) Petitioner‟s reply dated 28.06.2022 in response to Notice dated
27.05.2022 under section 148A(b) of the Act issued by Respondent No. 1 (Annexure P-10). The same is also accepted by the Respondent No. 1 while passing the impugned
order at Pg. 286 (para 7.c) however, still the Respondent No. 1 proceeded to issue notice in the name of the non-existent amalgamating entity.
Apart from the above, the Petitioner has also raised other legal issues including AY 2013-14 being barred by time limitation in view of the first proviso.
The Petitioner has also raised the issue that no income chargeable to tax has escaped assessment in the facts of the present case. On merits, this issue is covered by the
decision of this Hon‟ble Court passed in the case of the sister-concern annexed as Annexure P-15, Pg. 333.
103. WP(C) No.5868/2023 2015-16 w.e.f. 16.03.2021 08.06.2021 *Earlier a – 28.11.2017 30.06.2021
01.04.2020 W.P(C)- Notice (section
Elite Wealth Ltd. vs. ITO 13647/2021 u/s 143(3) in the 148 of the Act)
was filed before hands of issued to
this Hon‟ble Amalgamating Amalgamating
Court and Entity i.e., Elite Entity i.e., Elite
Department Comtrade Private Comtrade
was well Limited Private Limited
Informed. In the Erstwhile
regime
That the same
was disposed Notice u/s.
Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on off in light of 148A(b) dated the decision 20.05.2022 passed in the issued in the case of Mon name of non- Mohan Kohli. existent entity. [ANN: P-7] 86. WP (C) 5118/2022 2013-14 w.e.f. 09.01.2009 Intimation 28.12.2017 Notice under 01.04.2008 dated section 148 of Nokia Solutions and Networks India 25.05.2009 - the Act was Pvt. Ltd. (successor of Nokia surrendering never served on Siemens Networks India Pvt. Ltd.) v. the PAN of the the Petitioner. DCIT amalgamating The factum of company. reassessment (The challenge is to the initiation of [Ann. P5 - Pg. proceedings reassessment proceedings by way of 110 of the WP] was informed issuance of notice under section 148 by virtue of a of the Act and the proceedings notice issued emanating therefrom) under section Letter issued by 142(1) of the the Income Tax Act. PAN Services Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on Unit whereby Notice u/s the Petitioner 142(1) dated was informed 15.03.22 issued about the in the name of issuance of new non-existent PAN to the entity [Ann. P1 amalgamated - Pg. 43 to 45 entity. [Ann. of the WP]. P3 - Pg. 49 of the WP] Erstwhile regime 84. WP (C) 5021/2022 2016-17 w.e.f. 09.01.2009 31.12.2019 Notice under 01.04.2008 section 148 of Nokia Solutions and Networks India This Hon‟ble the Act was Pvt. Ltd. (successor of Nokia Court in the never served on Siemens Networks India Pvt. Ltd.) v. case of PCIT v. the Petitioner. DCIT Nokia The factum of Solutions & reassessment (The challenge is to the initiation of Network India proceedings reassessment proceedings by way of (P.) Ltd., was informed Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on issuance of notice under section 148 [2018] 90 by virtue of a of the Act and the proceedings taxmann.com notice issued emanating therefrom) 369 (Delhi HC) under section has upheld the 142(1) of the order of the Act. Tribunal wherein the Notice u/s regular 142(1) dated assessment 15.03.22 issued framed for AY in the name of 2006-07 on the non-existent non-existent entity [Ann. P1 entity was - Pg. 43 to 45 quashed. of the WP]. Intimation - 25.05.2009 - Erstwhile surrendering regime the PAN of the 85. WP (C) 5022/2022 2014-15 w.e.f. 09.01.2009 amalgamating 28.12.2017 Notice under 01.04.2008 company. [Ann section 148 of Nokia Solutions and Networks India P5 - Pg. 110 of the Act was Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on Pvt. Ltd. (successor of Nokia the WP] never served on Siemens Networks India Pvt. Ltd.) v. the Petitioner. DCIT The factum of reassessment (The challenge is to the initiation of proceedings reassessment proceedings by way of was informed issuance of notice under section 148 by virtue of a of the Act and the proceedings notice issued emanating therefrom) under section 142(1) of the Act. Notice u/s 142(1) dated 15.03.22 issued in the name of non-existent entity [Ann. P1 - Pg. 42 to 44 of the WP]. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on Notice dated 20.05.2022 issued under section 148A(b) of the Act [Pg. 153 -155 of the WP]. Erstwhile as well as New regime 91. WP(C) No. 5166/2022 2013-14 01.04.2011 27.05.2013 Intimation - Amalgamation Order dated Notice dated 03.05.2018 - related 29.01.2016 - 26.03.2021 Paytm Mobile Solutions Pvt. Ltd. also requested modification was scrutiny under section (now merged into One 97 to surrender not required as assessment - the 148 of the Act Communications Ltd.) v. ACIT PAN [Pg. 63 necessary changes returned income [Pg. 49 of the of the WP - were incorporated was accepted. WP - Ann. P1] Ann. P5] during the course [Pg. 59-60 of the of filing of WP - Ann. P4] Erstwhile original return. regime Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on The fact that revised return was filed for AY 2012-13, has been noted in Assessment Order dated 23.03.2015 for AY 2012-13. [Pg. 55 of the WP - Ann. P3] 89. WP(C) No. 5161/2022 2014-15 01.04.2011 27.05.2013 Intimation - Amalgamation Order dated Notice dated 03.05.2018 - related 23.11.2016 - 27.03.2021 Paytm Mobile Solutions Pvt. Ltd. also requested modification was scrutiny under section (now merged into One 97 to surrender not required as assessment - the 148 of the Act - Communications Ltd.) v. ACIT PAN [Pg. 65 necessary changes returned income Pg. 49 of the of the WP - were incorporated was accepted. WP - Ann. P1. Ann. P5] during the course [Pg. 60-61 of the of filing of WP - Ann. P4] Erstwhile original return. regime The fact that Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on revised return was filed for AY 2012-13, has been noted in Assessment Order dated 23.03.2015 for AY 2012-13. [Pg. 56-57 of the WP - Ann. P3] 88. WP(C) No. 5134/2022 2015-16 01.04.2011 27.05.2013 Intimation - Amalgamation Regular Notice dated 03.05.2018 - related assessment 26.03.2021 Paytm Mobile Solutions Pvt. Ltd. also requested modification was concluded under section (now merged into One 97 to surrender not required as vide Order 148 of the Act - Communications Ltd.) v. ACIT PAN [Pg. 59 necessary changes dated Pg. 49 of the
of the WP – were incorporated 26.12.2017. WP – Ann. P1.
Ann. P4] during the course [Pg. 209-210
of filing of of the WP - Erstwhile
original return. Ann. P11] regime
The fact that Reassessment
revised return was on the
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
filed for AY amalgamated
2012-13, has been entity was
noted in concluded
Assessment Order vide Order
dated 23.03.2015 dated
for AY 2012-13. 30.03.2022
[Pg. 215-216 of [Pg. 502-503
the WP - Ann. of the WP
P12] (5134-2022)]
92. WP(C) No. 5171/2022 2016-17 01.04.2011 27.05.2013 Intimation - Amalgamation Regular Notice dated
03.05.2018 - related assessment 26.03.2021
Paytm Mobile Solutions Pvt. Ltd. also requested modification was concluded under section
(now merged into One 97 to surrender not required as vide Order 148 of the Act -
Communications Ltd.) v. ACIT PAN [Pg. 59 necessary changes 27.12.2018. Pg. 49 of the
of the WP – were incorporated [Pg. 209-210 WP – Ann. P1.
Ann. P4] during the course of the WP -
of filing of Ann. P11] Erstwhile
original return. regime
Reassessment
The fact that on the
revised return was amalgamated
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
filed for AY entity was
2012-13, has been concluded
noted in vide Order
Assessment Order dated
dated 23.03.2015 30.03.2022.
for AY 2012-13. [Pg. 504-505
[Pg. 211-212 of of the WP
the WP - Ann. (5134-2022)]
P12]
90. WP(C) No. 5165/2022 2017-18 01.04.2011 27.05.2013 Intimation - Amalgamation Regular Notice dated
03.05.2018 - related assessment 26.03.2021
Paytm Mobile Solutions Pvt. Ltd. also requested modification was concluded under section
(now merged into One 97 to surrender not required as vide dated 148 of the Act -
Communications Ltd.) v. ACIT PAN [Pg. 75 necessary changes 29.12.2019. Pg. 59 of the
of the WP – were incorporated [Pg. 73-34 of WP – Ann. P1.
Ann. P6] during the course the WP -
of filing of Ann. P5] Erstwhile
original return. regime
Reassessment
The fact that on the
revised return was amalgamated
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
filed for AY entity was
2012-13, has been concluded
noted in vide Order
Assessment Order dated
dated 23.03.2015 30.03.2022.
for AY 2012-13. [Pg. 506-507
[Pg. 69-70 of the of the WP
WP - Ann. P4] (5134-2022)]
Remarks:
Assessment in the case of amalgamated entity was framed in 23.03.2015 for AY 2012-13 wherein the AO has categorically recorded the aspect of amalgamation. In the Financial
Statements of the amalgamated entity, it is categorically recorded that in terms of the scheme of amalgamation all the assets and liabilities of the amalgamating company got
transferred to the amalgamated entity w.e.f. 01.04.2011. Further, specific request for surrender of PAN was made vide letter dated 03.05.2018, however, the status of the same was
still appearing as active. The present case admittedly falls under Category I as notice under section 148 of the IT Act has been issued in the name of the amalgamating entity alone
and is squarely covered by the law laid down in the case of PCIT v. Maruti Suzuki India Ltd.: [2019] 416 ITR 613 (SC) & Dalmia Power Ltd. vs. ACIT [2020] 420 ITR 339 (SC).
Further, reliance is also placed on judgment passed in the case of CLSA India Pvt. Ltd. v. DCIT, [2023] 149 taxmann.com 380 (Bombay High Court) and DCIT v. Sterlite
Technologies Ltd., [2024] 158 taxmann.om 242 (SC) confirming the judgement rendered in Sterlite Technologies Ltd. v. DCIT, [2023] 152 taxmann.com 381 (Bombay High
Court), wherein it is held that merely because PAN in the name of non-existent entity had remained active does not create any exception in favour of Revenue to justify the initiation
of reassessment proceedings and dilute the legal position as laid down by the Hon‟ble Supreme Court in Maruti Suzuki India Ltd. (supra).
16. ITA No. 539/2023 2019-20 w.e.f. – – 13.04.2021 – 28.11.2019 Draft Order – Order of
15.05.2018 1st intimation 29.09.2021 Tribunal –
Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:26.09.2024 19:44:08 Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of No. & Year date of by AO approval of amalgamation Belated assessment Impugned Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order as per the NCLT on NCLT/ HC AO/ old PAN (if any) on scheme surrendered on CIT vs John Wiley & Sons, Inc. (Belated) DRP directions- 20.02.2023 (Scheme 17.03.2021 - 29.04.2022 (The assessment order dated approved by 2nd intimation Final assessment Departmental 20.06.2022 passed in the name of Secretary of order- appeal against
erstwhile entity is under challenge) State, New 20.06.2022. common order
York on of the Tribunal
15.05.2018) Thereafter, the quashing final
Tribunal vide assessment
order dated order dated
20.02.2023 held 20.06.2022
final assessment
order passed in
the name of
erstwhile entity to
be bad in law.
Remarks:
The Department has filed an appeal against the order of the Tribunal dated 20.02.2023, quashing final assessment order dated 20.06.2022. Thus, the assessment order dated
20.06.2022, passed in the name of the erstwhile entity, is under challenge.
The DRP vide directions dated 29.04.2022, categorically directed the AO to pass the final assessment order as per the name given in the directions (i.e., John Wiley & Sons,
Inc. / amalgamated entity) (refer para 2.1 of the DRP directions on page 54 and 55 of the appeal for DRP directions in AY 2018-19 and 3 2019-20 respectively). The said fact
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
has also been acknowledged by the ITAT vide order dated 20.02.2023 at para 2.1 on page 27 for the ITAT order at page 22-27 of the appeal for AY 2018-19 and AY 2019-20.
Thus, since the DRP directions were not followed by the AO in both letter and spirit, as per scheme of 144C of the Act, the final assessment order is bad in law and liable to be
quashed on this count as well.
17. ITA No. 554/2023 2018-19 w.e.f. – – 18.11.2020 – 1st 11.04.2019 Draft Order – Order of
15.05.2018 intimation 29.09.2021 Tribunal –
CIT vs John Wiley & Sons, Inc. (Revised post DRP directions- 20.02.2023
(Scheme 17.03.2021 - 2nd
defect notice) 29.04.2022
approved by intimation
(The assessment order dated Final assessment Departmental
Secretary of
20.06.2022 passed in the name of 23.03.2021 - 3 rd order- appeal against
State, New
erstwhile entity is under challenge) intimation 20.06.2022. common order
York on
of the Tribunal
15.05.2018)
The Tribunal vide quashing final
order dated assessment
20.02.2023 held order dated
final assessment 20.06.2022
order passed in
the name of
erstwhile entity to
be bad in law.
Remarks:
The Department has filed an appeal against the order of the Tribunal dated 20.02.2023, quashing final assessment order dated 20.06.2022. Thus, the assessment order dated
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08
Item WP(C) No. Assessment Appointed NOC given Date of Factum of Revised/ Details of regular Date of
No. & Year date of by AO approval of amalgamation Belated assessment Impugned
Cause Title Amalgamation before scheme by intimated to return filed Notice/ Order
as per the NCLT on NCLT/ HC AO/ old PAN (if any) on
scheme surrendered
on
20.06.2022, passed in the name of the erstwhile entity, is under challenge.
The DRP vide directions dated 29.04.2022, categorically directed the AO to pass the final assessment order as per the name given in the directions (i.e., John Wiley & Sons,
Inc./ amalgamated entity) (refer para 2.1 of the DRP directions on page 54 and 55 of the appeal for DRP directions in AY 2018-19 and 3 2019-20 respectively). The said fact
has also been acknowledged by the ITAT vide order dated 20.02.2023 at para 2.1 on page 27 for the ITAT order at page 22-27 of the appeal for AY 2018-19 and AY 2019-20.
Thus, since the DRP directions were not followed by the AO in both letter and spirit, as per scheme of 144C of the Act, the final assessment order is bad in law and liable to be
quashed on this count as well.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:26.09.2024
19:44:08