9911796707
TMI Blog2024 (7) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... s in existence during the year 2017-18 stood amalgamated with Pharmazell (India) Pvt. Ltd. with effect from 01.07.2018 vide order dated 21.02.2020 of the NCLT, Chennai. The above fact was brought to the notice of the respondent authority by the petitioner vide email dated 22.09.2020 and it was requested to address all future correspondences involving assessment proceedings, notice of the assessee in the name of Pharmazell (India) Pvt. Ltd. The relevant portion of the Email is extracted here under : "We on behalf of and under instructions from our client - Pharmazell (Vizag) Private Limited (the Assessee) wish to draw your goodself's attention to the order passed by the National company Law Tribunal ('NCLT) Chennai Bench sanctioning the scheme of amalgamation of the Assessee with and into PharmaZell (India) Private Limited [collectively known as "PharmaZell entities'] The NCLT had sanctioned the scheme of amalgamation of the PharmaZell entities on 21 February 2020 and the same was pending for approval from various regulatory authorities including the SEZ authonties ROC authorities and the DOP authorities. Since we have duly received the approvals from all the requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainment Ltd. vs. Commissioner of Income Tax, reported in 247 CTR 500 which has been affirmed by the Supreme Court in the case of Principal Commissioner of Income Tax vs. Maruti Suzuki India Ltd., reported in 416 ITR 613, the relevant portion is extracted hereunder : "20. In Spice Entertainment, (supra) a Division Bench of the Delhi High Court dealt with the question as to whether an assessment in the name of a company which has been amalgamated and has been dissolved is null and void or, whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The High Court held that upon a notice under Section 143 (2) being addressed, the amalgamated company had brought the fact of the amalgamation to the notice of the assessing officer. Despite this, the assessing officer did not substitute the name of the amalgamated company and proceeded to make an assessment in the name of a non-existent company which renders it void. This, in the view of the High Court, was not merely a procedural defect. Moreover, the participation by the amalgamated company would have no effect since there could be no estoppel against law: "11. After the sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Apex Court, it was found that it does not in any manner dilute or water down the law laid down in Spice Entertainment and it was clarified that the law laid down in Spice Entertainment governs the field as would be evident from the following portions of the judgment : "27. The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP (supra) which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon'ble Mr Justice A K Sikri and Hon'ble Mr Justice Ashok Bhushan 32 Sky Light Hospitality LLP (supra). In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of this Court: "In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Tax Act. The special leave petition is dismissed. Pending applications stand disposed of." Now, it is evident from the above extract that it was in the peculiar facts of the case that this Court indicated its agreement that the wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused." 29. From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP (supra) against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 2928. The decision in Skylight Hospitality LLP (supra) has been distinguished by the Delhi, Gujarat and Madras High Courts in: (1) Rajender Kumar Sehgal (supra); (ii) Chandreshbhai Jayantibhai Patel; and (supro) (iii) Alamelu Veerappan (supra). 30. There is no conflict between the decisions of this Court in Spice Enfotainment (supra) and in Skylight Hospitality LLP (supra)" ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad duly informed the authorities about the merger of the company and yet the assessment order was passed in the name of the amalgamated / non existing company. Whereas, in the case of Mahagun Realtors (P) Ltd., the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company in the case of Mahagun Realtors (P) Ltd. It was thus held the decision in Maruti Suzuki was inapplicable to the facts of the case. The relevant portion of the order of the Supreme Court in Mahagun Realtors (P) Ltd., is extracted below for better appreciation of the above position : "7. The Revenue, represented by the Additional Solicitor General, Mr. N. Venkataraman, urged that the names of both the amalgamating and amalgamated companies were mentioned in the assessment order. According to him such mistakes, defects or omissions are curable under section 2928 when the assessment is in substance and effect, in conformity with or according to the intent and purpose of the Act. 8. It was contended that the amalgamating or transferor company was duly represented by the amalgamated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 22, 2010, it was for the assessment year 2007 -08 and not for the assessment year 2006-07 For the assessment years 2007-08 to 2008-09, separate proceedings under section 153A were initiated against MIPL and the proceedings against MRPL for these two assessment years were quashed by the Additional Commissioner of Income-tax by order dated November 30, 2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated August 11, 2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies. 35. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the Department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the present case, the participation in proceedings was by MRPL which held out itself as MRPL. ..... 41. In the light of the facts, what is overwhelmingly evident is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the Revenue of the directors and managing director of the group. A return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in case of Mahagun Realtors (P) Ltd., was that the factum of amalgamation was not brought to the notice of the assessing authority and further the assessment order was made in the name of both the amalgamating company and the resultant company. It was under those circumstances it was held by the Supreme Court in Mahagun Realtors (P)Ltd., that the impugned order of the High Court holding that the assessments in that case was not a nullity. However, as found supra in the present case the petitioner had on atleast 5 occasions intimated the assessing authority as to the factum of amalgamation and requested that the assessment be made in the name of the resultant / amalgamated company and thus the impugned order in the name of the amalgamated / non existent company is non-est in terms of the decision of the Supreme Court in Maruti Suzuki and is thus liable to be set aside. 9. Yet another submission made by the learned counsel for the respondent was that the petitioner had not deactivated their PAN to justify the assessments being made in the name of the amalgamating company. However, this again does not justify the passing of an assessment order in the name of a company which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
