Heard The Learned Advocates Appearing For Theparties v. Dy.commissioner Of Income Tax Reported In 2016 Scc

14.03.2022Sl. No. 20 PB WPA 3680 of 2022 Seel Investment Pvt. Ltd. & Anr.Vs.Union of India & Ors. Mr. Saurab Bagaria, Ms. Sweta Mohanty. …. For the Petitioners Mr. Tilak Mitra. …. For the Respondents Heard the learned advocates appearing for theparties. In this writ petition, petitioner has challenged theimpugned notice dated 16[th] April, 2021 relating toassessment year 2013-14 under Section 148 of theIncome Tax Act, 1961 which is a transferor companyon the ground that the impugned notice has beenissued in the name of company which has already beenamalgamated in 2020 and the department has beenintimated about this amalgamation which is matters ofrecord and such notice in the name of a non-existingcompany is not tenable in the eye of law. In support of his contention Mr. Bagaria, learnedadvocate appearing for the petitioners has relied on adecision of the Hon’ble Gujarat High Court in the caseof Takshashila Realties Pvt. Ltd. Versus Dy.Commissioner of Income Tax reported in 2016 SCC OnLine Guj 6462 and specifically relies on Paragraph10 of the said judgment which is hereinbelow: “10. Heard the learned Counsels appearing onbehalf of the respective parties at length. At the outset,it is required to be noted and it is not in dispute thatthe impugned notices under Section 148 of the IncomeTax Act have been issued against the original assesseeon 21.01.2011 to reopen the assessment for theAssessment year 2009-10. It is also not in dispute thatthe respective petitioners-original assessee are orderedto be amalgamated with one Takshashila Gruh Nirman(Subsequently named as Takshahila Realties Pvt. Ltd).The scheme of amalgamation has been sanctioned bythis Court, by which the respective petitioners areordered to be amalgamated into Takshashila GruhNirman(Subsequently named as Takshahila RealtiesPvt. Ltd.) with effect from 01.04.2010. Under thecircumstances, when the impugned notices are issuedagainst the original assessee-amalgamating Companyon 21.01.2011, it can be said that the same has beenissued against the non-existent Company. It cannot bedisputed that once the scheme for amalgamation hasbeen sanctioned by the Court with effect from01.04.2010, from that date amalgamating Companywould not be in existence. Under the circumstances,the impugned notices, which are issued against the non existent Company, cannot be sustained and thesame deserves to be quashed and set aside. Identicalquestion came to be considered by the Division Benchof this Court in the case of Khurana Engineering Ltd.(Supra). It was the case where the original assesseeCompany was ordered to be amalgamated with effectfrom 01.04.2009. Notice under Section 148 of theIncome Tax Act was issued against and the transferorCompany-amalgamating Company on 20.06.2012. TheDivision Bench of this Court in a writ petition filed bythe transferor Company has observed and held that onand from the appointed date, as per the scheme ofamalgamation sanctioned by the Court, the transferorCompany shall not be in existence, and therefore, theimpugned notices against the transferor Company(non-existent Company) shall not be permissible. TheDivision Bench has observed that in such a situationthe assessment can always be made and is supposedto be made on the transferee Company taking intoaccount the income of both the transferor andtransferee Company and also the more advisablecourse from the point of view of the revenue would beto make one assessment on the transferee Companyand to make separate protective assessments on boththe transferor and transferee Companies separatelyultimately, the Division Bench has held that the transferor Company would no longer be amenable tothe assessment proceedings for the Assessment Year2010-11, and therefore, notice for producingdocuments for such assessment would therefore beinvalid.” Learned advocate for the respondents in all hisfairness has submitted that he has got no case andcould not distinguish the aforesaid judgement of theHon’ble Gujarat High Court on the facts and law. transferor Company would no longer be amenable tothe assessment proceedings for the Assessment Year2010-11, and therefore, notice for producingdocuments for such assessment would therefore beinvalid.” Learned advocate for the respondents in all hisfairness has submitted that he has got no case andcould not distinguish the aforesaid judgement of theHon’ble Gujarat High Court on the facts and law. Considering the submission of the parties, I am ofthe view that the impugned notice dated 16[th] April,2021 (Annexure P-1 to the writ petition) is not tenablein the eye of law and all further steps pursuant to thesaid impugned notice also are not tenable in the eye oflaw. This writ petition is allowed and the impugnednotice is quashed solely on the ground that theimpugned notice was issued in the name of non-existing company in spite of revenue having notice andknowledge of non-existence of such Company. Since no affidavits have been called for,allegations made in the writ petition are deemed tohave been denied by the respondents. Accordingly, WPA 3680 of 2022 is disposed of (Md. Nizamuddin, J.)