TMI Blog2021 (4) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 1.4.2012. It has been observed that assessment order passed for the assessment year 2012-13 in the name of non-existing entity is a substantive illegality and would not be procedural violation of Section 292 (b) of the Act. The Supreme Court in its aforesaid decision, has quoted an extract from its decision in Saraswati Industrial Syndicate Ltd. Vs. CIT [ 1990 (9) TMI 1 - SUPREME COURT] The Supreme Court has also referred to decision of Delhi high court in the case of CIT Vs. Spice Enfotainment Ltd 2011 (8) TMI 544 - DELHI HIGH COURT and observed that in its decision Delhi high court had held that assessment order passed against non-existing company would be void. Such defect cannot be treated as procedural defect and mere participation of appellant would be of no effect as there is no estoppel against law. Such a defect cannot be cured by invoking provisions under section 292B. Petitioner lead us to consider that petitioner has made out a case for reliefs and it would be appropriate to allow petition in terms of prayer clause (a). - WRIT PETITION No. 950 OF 2020 - - - Dated:- 9-4-2021 - SUNIL P. DESHMUKH, ABHAY AHUJA, JJ. Mr. Jehangir D. Mistri, Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 143(3) of the Act under order 31st January, 2017. 5. Notice dated 30th March, 2019 under section 148 of the Act for the assessment year 2012-13 in the name of TSPL had been issued by respondent No. 1 directing to file return of income within thirty days stating there is reason to believe that income chargeable to tax had escaped assessment,, without realising that said company was a non existing entity. 6. He submits, petitioner became aware of aforesaid notice based on telephonic conversation of respondent No. 1 with an employee of petitioner in second week of September, 2019. Petitioner had filed a letter dated 18th September, 2019 stating that TSPL has been amalgamated with effect from 1st April, 2010 and since then said company has ceased to exist, and as such, there is no question of filing returns of income for assessment year 2012-13 by said company. The then company M/s. Intelenet Global Services pvt. Ld. had duly filed returns of income for all the subsequent assessment years, and had as such submitted that the notice had been issued on misconception and appears to be an inadvertent error. In ensued telephonic conversation with respondent No. 1, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamation is clearly outside the scope of jurisdiction of respondent No. 1. He refers to the letters dated 18th September, 2019 and 29th November, 2019 as well as e-mails dated 16th October, 2019. He submits that despite aforesaid, the decision purports to consider that impugned notice has not been responded to. He submits that there is not even a whisper about the objection by petitioner to the notice and the proceedings. He submits that no assessment or re-assessment proceedings can be initiated against a person not in existence during the relevant period. Thus the impugned notice and impugned order are absolutely without jurisdiction. He submits that it has been ignored that M/s. Tecnovate Esolutions Pvt. Ltd. had not been in existence with effect from 1.4.2010 for the financial year 2011-12. He submits that M/s. Intelenet Global Services Pvt. Ltd. had already filed returns of income for the assessment year 2012-13 and assessment completed under Section 143(3) of the Act. In the circumstance, there is no question of assessment being reopened or the assessment order being passed in the name of erstwhile company. 10. He submits, petitioner was not afforded any opportunity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein Supreme Court considered that even if a small fraction of cause of action accrues within the territorial jurisdiction of a court, the court is competent to entertain writ petition by virtue of clause (2) of Article 226 of the Constitution of India. It has been observed that if passing of a parliamentary legislation gives rise to civil or evil consequences, a cause for writ petition questioning constitutionality thereof arises and can be filed in any high court. It is not so, a cause of action arises only when the provisions of the Act or some of them are implemented would give rise to civil or evil consequences to the petitioner. The seat of the Parliament or a State Legislature would not be relevant factor for determining territorial jurisdiction of a high court to entertain a petition. It has been held in the same that the material facts which are imperative for the suitor to allege and prove constitutes the cause of action. 15. It has also been referred to in said decision, paragraph 24 thereof in using the terms cause of action , it has been considered that litigant who is the dominus litis to have his forum conveniens and litigant has the right to go to a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y upon a decision of this Court in the case of Principal Commissioner of Income-tax, Pune Vs. Sunguard Solutions (I) (P.) Ltd. (2019) 105 taxmann.com 67 (Bombay). It appears that in said case, order by tribunal in Bangalore was passed on 30.7.2015. On 8.9.2015 an order was passed under section 127 transferring the assessee s case from the assessing officer at Bangalore to an assessing officer at Pune and the appeal was filed in January, 2006 before this court contending that situs of the assessing officer would alone determine the high court which would have jurisdiction over the orders of the tribunal under section 260A of the Act. At the time of appeal, seat of assessing officer is at Pune therefore this high court will have jurisdiction. Aforesaid submissions were opposed by the assessee contending that appeals to high court are governed by chapter XX of the Act. Section 260A provides appeals to high court from every orders passed in appeal by tribunal. Section 269 of the Act, defines the high court of the State. It was contended that section 127 of the Act deals with the jurisdiction of the authorities and would not control / decide and/or determine which high court wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n factual aspect that TSPL had been amalgamated into M/s. Intelnet Global Services Pvt. Ltd. with effect from 1st April, 2010. As a matter of fact, same has been endorsed in the affidavit-in-reply filed on behalf of the respondents, referring to that petitioner is its ultimate successor. Thereafter, said company had also been submitting returns and those were assessed from time to time in respect of subsequent financial and assessment years. This aspect as well has not been disputed. So is the case in respect of averments appearing in paragraph 4J. (c) of the petition to the following effect: (c) The Petitioner submitted that even after merger, sometimes the payers make payment to the Petitioner, however, erroneously continue to mention the PAN of the erstwhile company and not the Petitioner s company. However, the Petitioner in its return of income consider all such payments and claim all such deduction. Therefore, there can be no question of any escaping assessment for the assessment year 2012-13. 21. During the course of submissions, learned senior counsel Mr. Mistri refers to decision of the Supreme Court of India in the case of Principal Commissioner of Income Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 90 taxmann.com 369/253 Taxman 409/402 ITR 21 (Delhi) 23. The Supreme Court in Spice Infotainment Ltd. Vs. CIT (2012) 247 CTR 500 (Delhi) found that there is no reason to interfere with the impugned judgment of Delhi high court and it found no merits in the appeal and special leave petition and were dismissed accordingly. The Supreme Court had taken note of revenue resistance contending that contrary position emerges from decision of Delhi high court decision in Sky Light Hospitality LLP Vs. Assistant Commissioner of Income-tax (2018) 92 taxmann.com 93 (SC) and that it had been affirmed by the Supreme Court. However, the Supreme Court had also taken note of Sky Light LLP (supra) was in peculiar facts of the case, where the high court had catgegorically concluded that there was clerical mistake within the meaning of section 292B and the case had been distinguished by decisions of Delhi, Gujarat and Madras high courts in Rajender Kumar Sehgal Vs. ITO (2019) 10 taxmann.com 233/260 Taxman 412 (Delhi); Chandreshbhai Jayantibhai Patel Vs. IOT (2019) 101 taxmann.com 362/261 Taxman 137 (Guj.); and Alamelu Veerappan Vs. ITO (2018) taxmann.com 155/257Taxman 72 (Mad.). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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