Calcutta High Court
Private Limited vs Union Of India And Ors on 5 December, 2022
OD - 7
ORDER SHEET
WPO/3101/2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
NISHTHA INVESTMENT AND CONSULTANCY SERVICES
PRIVATE LIMITED
VS
UNION OF INDIA AND ORS.
BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 5th December, 2022.
Appearance:
Mr. Arvind Agarwal, Adv.
Mr. Farhan Ghaffar, Adv.
...For the Petitioner
Mr. Aryak Dutt, Adv.
...For the Respondent.
The Court : Heard learned advocates appearing for the
parties.
In this writ petition, petitioner has challenged the
impugned notice dated 31st March, 2022 relating to
assessment year 2018-19, under Section 148A of the Income
Tax Act, 1961, on the ground that the noticee company is
no more in existence and it has already been amalgamated
with effect from 1st April, 2019 by the order of the NCLT
dated 15th November, 2019 and the respondent department
was intimated on the amalgamation of the noticee company
on 28th August, 2019. It is the grievance of the
petitioner that in spite of intimation of the fact that
the assessee is not existing, still respondent is
proceeding with the impugned reassessment proceeding and
submits that the whole proceeding and the impugned notice
are bad and not sustainable in law against the non-
existing company.
In support of his contention Mr. Arvind Agarwal,
learned advocate appearing for the petitioner has relied
on a decision of the Hon'ble Gujarat High Court in the
case of Takshashila Realties Pvt. Ltd. vs. 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 28th
July, 2022 to reopen the assessment for the Assessment
year 2016-17. It is also not in dispute that the
respective petitioners-original assessee (Wheat Corn Agro
Private Ltd.) are ordered to be amalgamated with one
Nishtha Investments and Consultancy Services (P) Ltd.
The scheme of amalgamation has been sanctioned by this
Court, by which the respective petitioners are ordered to
be amalgamated into Nishtha Investments and Consultancy
Services (P) Ltd. with effect from 1st April, 2019. Under
the circumstances, when the impugned notices are issued
against the original assessee-amalgamating Company on 28th
July, 2022, 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 1st April, 2019 from that
date amalgamating Company would not be in existence.
Under the circumstances, 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 20.6.2012. 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 transferor Company
would no longer be amenable to the assessment proceedings
for the Assessment Year 2016-17, and therefore, notice
for producing documents for such assessment would
therefore be invalid."
Learned advocate appearing for the respondent is not
in a position to contradict the admitted facts as appear
from records.
Considering the submissions of the parties, I am of
the view that the impugned notice dated 31st March, 2022
(Annexure P-5 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, WPO 3101 of 2022 is disposed of.
(MD. NIZAMUDDIN, J.)
TR/
