Abhishek Caplease Pvt. Ltd v. Income Tax Officer

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 6340 of 2022 ========================================================== ABHISHEK CAPLEASE PVT. LTD. VersusINCOME TAX OFFICER ========================================================== Appearance: DARSHAN R PATEL(8486) for the Petitioner(s) No. 1M R BHATT & CO.(5953) for the Respondent(s) No. 1 ==========================================================CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMARandHONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 17/08/2022 ORAL ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) 1.Learned counsel appearing for the respondent, with leaveof the Court, has filed affidavit-in-reply. Same is placed onrecord. 2. Learned standing counsel in his usual fairness submits that in view of the order passed by the Coordinate Bench, whichhas been brought to the notice of this Court by the learnedcounsel appearing for the petitioner, namely order dated15.2.2022 passed in Special Civil Application No.17039 of 2021,similar orders may be passed in this application also. He placeson record the assessment order dated 31.3.2022. 3.Having heard learned counsel appearing for the parties,we notice that in this Special Civil Application, proceedingsunder Section 147 came to be initiated by issuance of noticeunder Section 148 on the purported escapement of income forAY 2014-15 against the petitioner company, which came to beamalgamated by an order of the Company Court dated30.10.2015 in Company Petition No.330 of 2015 with effect from1.4.2015. Undisputedly, notice under Section 148 came to beissued on 27.3.2021. In fact, petitioner company on beingamalgamated with Akash Residency and Hospitality Pvt. Ltd.had intimated the jurisdictional AO, namely Income Tax Officer,Ward-1, Gandhinagar by communications dated 23.11.2015 and27.1.2016 of such amalgamation having taken place, which wasduly acknowledged by the said office. Yet, impugned notice on27.3.2021 has been issued to a company which was not inexistence or had ceased to be in existence as on the date ofnotice. The Coordinate Bench in Special Civil ApplicationNo.17039 of 2021, disposed of on 15.2.2022, has heldthereunder as follows:- 5. Ms. Shah further invited the attention of this Court tothe two letters of even date 23rd July 2021 addressed tothe two letters of even date 23rd July 2021 addressed to the jurisdictional Assessing Officer by the Director ofthe erstwhile Shivganga Property Holders PrivateLimited bringing it to his notice that the impugnednotice could not have been issued. 6. Mr. M. R. Bhatt, the learned Senior Counsel assisted byMr. Karan Sanghani, the learned advocate appearingfor the Revenue, with his usual fairness, submitted thatin view of the intimation as regards the merger /amalgamation way back on 17th January 2019, the twoimpugned notices could not have been issued. 4.In the light of the afore-stated opinion expressed by theCoordinate Bench, of which we are in complete agreement andthe facts obtained in the present case clearly disclosing thatpetitioner company even as on date of issuance of impugnednotice dated 27.3.2021 was not in existence by virtue of samehaving been amalgamated with Akash Residency and HospitalityPvt. Ltd. with effect from 1.4.2015 itself or in other words, ithad ceased to be in existence from the said date and this factwas also being within the knowledge of the jurisdictional ITO byvirtue of communications dated 23.11.2015 and 27.1.2016forwarded by the petitioner to the said authorities impugnednotice cannot be sustained. 5.Hence, we proceed to pass following: ORDER (1) Special Civil Application is ALLOWED. 4.In the light of the afore-stated opinion expressed by theCoordinate Bench, of which we are in complete agreement andthe facts obtained in the present case clearly disclosing thatpetitioner company even as on date of issuance of impugnednotice dated 27.3.2021 was not in existence by virtue of samehaving been amalgamated with Akash Residency and HospitalityPvt. Ltd. with effect from 1.4.2015 itself or in other words, ithad ceased to be in existence from the said date and this factwas also being within the knowledge of the jurisdictional ITO byvirtue of communications dated 23.11.2015 and 27.1.2016forwarded by the petitioner to the said authorities impugnednotice cannot be sustained. 5.Hence, we proceed to pass following: ORDER (1) Special Civil Application is ALLOWED. (2) Notice dated 27.3.2021 and show cause notice dated21.3.2022 as well as consequential order which hassince been passed on 31.3.2022 stand quashed.21.3.2022 as well as consequential order which hassince been passed on 31.3.2022 stand quashed. Sd/-(ARAVIND KUMAR,CJ) OMKAR Sd/- (ASHUTOSH J. SHASTRI, J)