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2023 (5) TMI 547 - HC - Income TaxValidity of Reopening of assessment u/s 147 - notice against company amalgamated/ non-existing - HELD THAT:- The legality of a notice issued against a non-existing company is no longer res-integra and has been held to be clearly untenable in view of the Apex Court judgment in Saraswati Industrial Syndicate Ltd. [1990 (9) TMI 1 - SUPREME COURT]. In the case of Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] a Division Bench of the Delhi High Court held that once the factum of amalgamation of a company had been brought to the notice of the Assessing Officer, despite which the proceedings are continued and an order of assessment passed in the name of a non-existing company, the order of assessment would not merely be a procedural defect but would render it void. It was also held that participation in the proceedings by the amalgamated company would have no effect since there could be no estoppel against law. Not only had Morgan Construction amalgamated with the petitioner but the factum of such amalgamation had been intimated to the Assessing Officer on 17th September 2012. The company post amalgamation having ceased to exist, the jurisdictional requirement of service of notice as envisaged under section 148 of the Act could never have been fulfilled rendering the proceedings unsustainable in law. Decided in favour of assessee.
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