Rupak Trading Pvt Ltd vs Union Of India And Ors
2022 Latest Caselaw 1661 Cal/2

OD-10

                              ORDER SHEET
                             WPO/2202/2022
                     IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                              ORIGINAL SIDE

                        RUPAK TRADING PVT LTD
                                   VS
                        UNION OF INDIA AND ORS.


BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 7th June, 2022.

                                                                         Appearance:
                                                    Mr. Pratyush Jhunjhunwala, Adv.
                                                                  Mr. S. Rudra, Adv.
                                                                  ... for the Petitioner

                                                                Mr. Aryak Dutt, Adv.
                                                               ... for the respondents

The Court : Heard learned advocates appearing for the parties.

In this writ petition, petitioner has challenged the impugned

notice dated 22nd March, 2022 relating to assessment year 2018-19,

under Section 148A of the Income Tax Act, 1961 and notice dated 13th

April, 2022 under Section 148 of the Act on the ground that the

noticee company is no more in existence and it has already been

amalgamated with effect from 1st April, 2018 by the order of the NCLT

dated 24th February, 2021 and the respondent department was

intimated on the amalgamation of the noticee company on 10th and

18th June, 2021 and 20th July, 2021. 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. Jhunjhunwala, 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 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 Takshashila 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 Takshashila

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, 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

2010-11, 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 22nd March, 2022 and 13th April, 2022

(Annexures P-2 and 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.

However, quashing of the impugned notice will not prevent the

respondent assessing officer to initiate any appropriate proceeding in

future in accordance with law.

Accordingly, WPO 2202 of 2022 is disposed of.

(MD. NIZAMUDDIN, J.)

TR/