Brubeck Resources Pvt. Ltd. & Anr vs Union Of India & Ors
2021 Latest Caselaw 4031 Cal

S/L 13
02.08.2021
Court. No. 2
cm
                                WPA 1791 of 2020
                          Brubeck Resources Pvt. Ltd. & Anr.
                                         Vs.
                                Union of India & Ors.
                             (Through Video Conference)

                              Mr. Promit Bag
                              Mr. Anuj Kumar Mishra
                                             .... For the Petitioners
                              Mr. S. Roychowdhury
                              Mr. S. Bhattacharjee
                                              .... For the Respondents

Heard the learned advocates appearing for the

parties.

In this writ petition, petitioner has challenged the

impugned notice dated 29th March, 2019 relating to

assessment year 2012-13 under Section 148 of the

Income Tax Act, 1961 which is a transferee company

on the ground that the impugned notice has been

issued in the name of company which has already been

amalgamated in 2012 and the department has been

intimated about this amalgamation which is matters of

record and such notice in the name of a non-existing

company is not tenable in the eye of law.

In support of his contention Mr. Bag, learned

advocate appearing for the petitioners has relied on a

decision of the Hon'ble Gujarat High Court in the case

of Takshashila Realties Pvt. Ltd. Versus Dy.

Commissioner of Income Tax reported in 2016 SCC

OnLine Guj 6462 and specifically relies on Paragraph

10 of the said judgment which is hereinbelow:

"10. Heard the learned Counsels appearing on

behalf of the respective parties at length. At the outset,

it is required to be noted and it is not in dispute that

the impugned notices under Section 148 of the Income

Tax Act have been issued against the original assessee

on 21.01.2011 to reopen the assessment for the

Assessment year 2009-10. It is also not in dispute that

the respective petitioners-original assessee are ordered

to be amalgamated with one Takshashila Gruh Nirman

(Subsequently named as Takshahila Realties Pvt. Ltd).

The scheme of amalgamation has been sanctioned by

this Court, by which the respective petitioners are

ordered to be amalgamated into Takshashila Gruh

Nirman(Subsequently named as Takshahila Realties

Pvt. Ltd.) with effect from 01.04.2010. Under the

circumstances, when the impugned notices are issued

against the original assessee-amalgamating Company

on 21.01.2011, it can be said that the same has been

issued against the non-existent Company. It cannot be

disputed that once the scheme for amalgamation has

been sanctioned by the Court with effect from

01.04.2010, from that date amalgamating Company

would not be in existence. Under the circumstances,

the impugned notices, which are issued against the

non existent Company, cannot be sustained and the

same deserves to be quashed and set aside. Identical

question came to be considered by the Division Bench

of this Court in the case of Khurana Engineering Ltd.

(Supra). It was the case where the original assessee

Company was ordered to be amalgamated with effect

from 01.04.2009. Notice under Section 148 of the

Income Tax Act was issued against and the transferor

Company-amalgamating Company on 20.06.2012. The

Division Bench of this Court in a writ petition filed by

the transferor Company has observed and held that on

and from the appointed date, as per the scheme of

amalgamation sanctioned by the Court, the transferor

Company shall not be in existence, and therefore, the

impugned notices against the transferor Company

(non-existent Company) shall not be permissible. The

Division Bench has observed that in such a situation

the assessment can always be made and is supposed

to be made on the transferee Company taking into

account the income of both the transferor and

transferee Company and also the more advisable

course from the point of view of the revenue would be

to make one assessment on the transferee Company

and to make separate protective assessments on both

the transferor and transferee Companies separately

ultimately, the Division Bench has held that the

transferor Company would no longer be amenable to

the assessment proceedings for the Assessment Year

2010-11, and therefore, notice for producing

documents for such assessment would therefore be

invalid."

Learned advocates appearing for the respondents

objects to the prayer (b) of the writ petition which

learned advocate for the petitioners does not want to

press and so far as prayer (a) is concerned learned

advocate for the respondents in all his fairness has

submitted that he has got no case and could not

distinguish the aforesaid judgement of the Hon'ble

Gujarat High Court on the facts and law.

Considering the submission of the parties, I am of

the view that the impugned notice dated 29th March,

2019 (Annexure P-3 to the writ petition) is not tenable

in the eye of law and all further steps pursuant to the

said impugned notice also are not tenable in the eye of

law. This writ petition is allowed and the impugned

notice is quashed solely on the ground that the

impugned notice was issued in the name of non-

existing company in spite of revenue having notice and

knowledge of non-existence of such Company.

Since no affidavits have been called for,

allegations made in the writ petition are deemed to

have been denied by the respondents.

Accordingly, WPA 1791 of 2021 is disposed of

(Md. Nizamuddin, J.)