TMI Blog2023 (1) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, which has been amalgamated is illegal and without jurisdiction, since the amalgamating entity ceases to exist and cannot be regarded as person under sub-section (31) of section 2 of the Act against whom the assessment proceedings can be initiated. In view of all notice itself is not sustainable under the law. Petition stands allowed quashing and setting aside the notice issued under section 148 with all consequential reliefs. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 15621 of 2019 - - - Dated:- 7-1-2023 - HONOURABLE MS. JUSTICE SONIA GOKANI And HONOURABLE MR. JUSTICE SANDEEP N. BHATT MR B S SOPARKAR(6851) FOR THE PETITIONER(S) NO. 1 MRS KALPANA K RAVAL WITH MR KARAN SANGHANI FOR THE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminary objection that the notice has been issued at an entity, which no longer exists and it is merged. 2.4 According to the petitioner, the ground of reopening is in relation to the amount of Rs.2.68 crores, which is transferred to Hong Kong and UAE by 12 entities managed by one Afroze Hassan Fatta in the guise of bogus import payment. The ground recorded is based on the information received from DDIT (Investigation), Surat unit and there is no application of mind. Therefore, the petition is preferred seeking following reliefs: 7. The Petitioner, therefore, prays that this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the decisions of this Court in the case of Neo Structo Construction (P.) ltd. vs Assistant Commissioner of Income-tax, [2022] 144 taxmann.com 41 (Gujarat) and in the case of Dharmnath Shares Services (P.) Ltd. vs. Assistant Commissioner of Income-tax, Cen.Cir.1(2) , [2018] 94 taxmann.com 458 (Gujarat), to urge that the petitioner, on the ground of issuance of notice on the entity, which is not in existence in 2013-14 and the one which has been merged with the present petitioner, cannot be issued the notice and the petition should be entertained. 6 We have also heard Mrs. Kalpana Raval, learned advocate for the respondent assisted Mr. Karan Sanghani, learned advocate for the respondent, who does not dispute the settled positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entally 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. 8. He further placed reliance on the decision of this Court in case of Gayatri Microns Ltd vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings considering the fact that the extinct entity would not be covered within the ambit of the provisions of the Act. 11. Accordingly, in view of the aforesaid concluded proposition of law; which applies on all fours to the facts of the present case, the notice dated 25th March, 2019 issued by the respondent under the provisions of section 148 of the Act for the assessment year 2012-13, being without jurisdiction, is not sustainable. 9. On the other hand, learned advocate Mr.Manish Bhatt has opposed this petition. 10.We have heard learned advocates appearing for the respective parties. It is an undisputed fact that the Billfinger Neo Structo Pvt Ltd. was merged with Neo Structo Construction Pvt. Ltd by the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany amalgamated with Dharmanath by virtue of the judgment of this Court dated 4th May 2012. In fact, copy of the order of this Court is produced on record. Though this order was passed on 4th May 2012, the effective date of amalgamation was 1st April 2010. Division Bench of this Court in case of Khurana Engineering Limited v. Deputy Commissioner of Income Tax, reported in [2014] 364 ITR 600 [Guj.] had held that once the assessee company had amalgamated with the transferee company, its independent existence did not survive, and therefore, would no longer be amenable to assessment proceedings. For such purpose, the Court had quashed the notice on the company which had already merged, for producing documents for assessment. Under the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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