TMI Blog2020 (3) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. vi) OGT has admittedly filed a return of income in the name of OAS for A.Y.2013-14 even subsequent to amalgamation and also received refunds issued to OAS. The stand of the petitioner to the effect that proceedings for reassessment ought to have been issued only in the name of OGT is clearly misconceived insofar as the Department has not been put to notice of the factum of amalgamation by OGT till 14.09.2017 and the petitioner has also, by filing a return in the name of OAS and receiving refunds addressed to OAS, furthered the impression that OAS is an existing entity. This argument is rejected. No infirmity in law insofar as the impugned proceedings for re-assessment are concerned and the same are held to be valid. Petitioner has sought confirmation as to whether a return of income can be filed manually by it, since it was unable to upload a return electronically, the successor company not having been incorporated for that assessment year. No reply has been given to this letter and instead the impugned order of assessment has come to be passed on 30.12.2017, exparte. Order dated 30.12.2017 is set aside. The petitioner is permitted to file a return within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best of his judgment. vii) On merits, cash deposits in the bank account of the assessee have been treated as unexplained cash credits under Section 68 of the Act along with equal penalty. viii) It is as against the aforesaid order that the petitioner has filed Writ Petition in W.P.No.1759 of 2018. ix) An order of stay of impugned proceedings granted by this Court on 29.01.2018 was duly brought to the notice of the respondent Officer, despite which, the Officer, being of the view that proceedings for re-assessment were different and distinguishable from proceedings for the levy of penalty, has proceeded to finalise and levy penalty in terms of Section 271(1)(c) of the Act by order dated 28.06.2018. xi) As against the above order, the petitioner has filed W.P.No.21858 of 2018. Both the impugned orders of assessment and penalty have been framed on OGT (formally known as OAS) . 4. The crux of the submissions of the petitioner are to the effect that the impugned order is based on a notice dated 31.03.2017 issued to OAS, that was non-existent on that date and hence the aforesaid notice and all subsequent proceedings including the impugned order of assessment and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its conduct of filing a return of income post amalgamation in the name of OAS furthered the illusion that OAS continues to exist even after amalgamation. The fact that it has benefitted from the refunds issued in favour of OAS is also not denied. Thus, by its very conduct, OGT has led the Department to believe that OAS, as an entity, existed. 10. In the case of Maruti Suzuki (supra), the relevant facts are: i) The transferor entity was Suzuki Powertrain India Limited (SPIL) and the transferee entity was Maruti Suzuki India Limited (MSIL). ii) Return of income had been filed by SPIL, no amalgamation having taken place on that date, i.e., 28.11.2012. On 29.01.2013, the Scheme of amalgamation of SPIL and MSIL was approved with effect from 01.04.2012. On 02.04.2013, MSIL intimated the Assessing Officer of the factum of amalgamation. iii) Notice under Section 143(2) and a questionnaire under Section 142(1) were issued to SPIL, despite the Department having been aware that SPIL had ceased to exist upon an amalgamation. iv) The transfer pricing order and draft assessment order were also passed in the name of SPIL. v) MSIL participated in the assessment proceedings of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice had been issued only in its name, the appeal of the revenue was dismissed. xiv) At paragraph Nos.33 and 34, the Bench states as follows: 33 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 co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment 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. 34 We find no reason to take a different view. There is a value which the court must abide by in promotin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 12. As far as the case of Alamelu Veerappan (supra) is concerned, the decision is wholly distinguishable, since it relates to the provisions of Section 159(2) dealing with a deceased assessee and his legal representatives, whereas the present assessment is made in terms of Section 170 dealing with succession to business or profession otherwise than on death. 13. In the light of the decisions discussed, let us see the facts in the present case. i) No return of income has been filed by OAS for the relevant assessment year. However, there are credits in the bank account that are liable to be explained by the entity for the purposes of determination of taxability. ii) The factum of amalgamation was not known to the Income Tax Department. The jurisdictional notice, i.e., notice under Section 148 thus came to be issued to OAS. iii) Receipt of notices by OGT is not denied, since it has appeared before the Assessing Officer bringing to its notice the factum of amalgamation only then. iv) On 14.09.2017, OGT brings to the notice of the Department the merger of OAS with OGT and specifically requests the Department to handover the notice to its office staff, one Mr.Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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