Smj Eximp Limited vs Union Of India & Ors
2022 Latest Caselaw 3109 Cal

08.06.2022.
   p.b.
 Sl. No.32.


                           W.P.A. 9222 of 2022


                    SMJ Eximp Limited
                             Vs.
                    Union of India & Ors.



              Mr. Avra Mazumder,
              Mr. Sk. Md. Bilwal Hossain,
              Mr. Binayak Gupta,
              Ms. Megha Agarwal.
                                ........for the petitioner.

              Mr. Aryak Dutt..
                                 .........for the respondent.

Heard learned advocates appearing for the parties.

In this writ petition, petitioner has challenged the

impugned notice dated 30th March, 2021 relating to

assessment year 2015-16 under Section 148 of the Income

Tax Act, 1961 and impugned assessment order under

Section 147 read with Section 144 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 23rd December, 2005 by the order of this

Hon'ble High Court, Calcutta, dated December 22, 2005

and the respondent department was intimated on the

amalgamation of the noticee company on 13th January,

2009. 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 and assessment order are bad and not

sustainable in law against the non-existing company.

In support of his contention, Mr. Avra Mazumder,

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 20.06.2012. 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 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 respondents 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 30th March, 2021

(Annexure P-3 to the writ petition) and assessment order

dated March 16, 2022 (Annexure P-4 to the writ petition)

are 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 9222 of 2022 is disposed of.

(Md. Nizamuddin, J.)