Calcutta High Court
Principal Commissioner Of Income Tax ... vs Gpt Sons Pvt Ltd on 8 November, 2024
Author: Hiranmay Bhattacharyya
Bench: T.S Sivagnanam, Hiranmay Bhattacharyya
od 24
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
ITAT/195/2024
IA NO: GA/2/2024
PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 2 KOLKATA
VS
GPT SONS PVT LTD
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM
-A N D-
HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
DATE : November 08, 2024.
Appearance :
Mr. Soumen Bhattacharjee, Adv.
....for appellant
Mr. Amit Agarwal, Adv.
...for respondents
The Court :- We have heard the learned Advocates for the parties.
The revenue has filed this appeal under Section 260A of the Income Tax Act,
1961 (the Act) is directed against the order dated 9th May, 2023 passed by the Income
Tax Appellate Tribunal "B" Bench, Kolkata (the Tribunal) in ITA/491/Kol/2021 for the
assessment year 2011-12. The revenue has raised the following substantial questions
of law for consideration:-
a. Whether the learned Tribunal has committed substantial error in law in
granting relief to the assessee without considering the fact that neither the
assessee nor the amalgamating company informed the AO about the scheme
of amalgamation approved by the Hon'ble High Court and therefore defect in
not issuing notice in the name of amalgamated company remained a curable
defect under section 292B of the Income Tax Act, 1961 ?
b. Whether the learned Tribunal has committed substantial error in law in
granting relief to the assessee without considering the fact that neither the
assessee nor the amalgamating company applied for deactivation of PAN of
the amalgamating company, which was in existence till the issuance of
scrutiny notice and therefore defect in not issuing notice in the name of
amalgamated company is a curable defect under section 292B of the Income
Tax Act, 1961 ?
c. Whether the learned Tribunal has committed substantial error in granting
relief to the assessee without considering the fact that return in response to
notice under section 148 was filed in the name of amalgamated company
and therefore defect in not issuing notice in the name of amalgamated
company is a curable defect under section 292B of the Income Tax Act,
1961?
d. Whether the learned Tribunal has committed substantial error in law in
allowing relief to the assessee without considering the fact that when the
Assessing Officer was informed that merger had taken place the order under
section 147/143(3) was passed in the name of M/s. GPT Sons (P) Ltd.
(Amalgamated company) and therefore the technical defect in not issuing
notice in the name of amalgamated company should not be given any
weightage and the same should have deemed to have been caused under
section 292B of the Income Tax Act, 1961?
e. Whether the learned Income Tax Appellate Tribunal has substantially erred
in law in not considering the spirit of the judgment of the Hon'ble Supreme
Court in the case of M/s. Mahagun Realtors (P) Ltd. [443 ITR 194 (SC)]
wherein the assessment made in the name of amalgamating company was
held to be valid as the fact of amalgamation was suppressed from the AO ?
The short question which falls for consideration in this appeal is whether the
reopening of the assessment was valid in law, inasmuch as, the notice was admittedly
sent to a non existing entity. Before us the learned standing counsel vehemently
contend that the fact that the assessee company was amalgamated with GPT Ventures
Pvt. Ltd. was never disclosed to the assessing officer and they came to know only on
2024.
This submission appears not to have been raised any such fact before the
learned Tribunal. Nonetheless, we considered the said submission and we found the
said submission to be factually incorrect as the assessing officer was aware of the
amalgamation even at the time when proceedings were initiated under Section 147 of
the Act pursuant to the notice dated 6.12.2018. Apart from that in the reasons to
believe which was appended to the notice the assessing officer has specifically referred
to the details regarding the amalgamation. Therefore, the submission of the revenue
cannot be accepted as it is factually incorrect.
The second aspect contending that the assessee had filed the return in the
name of the company prior to its amalgamation. This issue was also considered by the
learned Tribunal and after taking note of the decision of this Court in the case of I. K.
Agencies (P) Ltd. Vs. Commission of Wealth Tax (2012) 20 taxmann.com 731 (Cal)
the contention was rejected since the fact that the real assessee subsequently filed its
return with objection that such notice is invalid cannot cure the defect which goes to
the root of the jurisdiction to reopen the proceedings. Further it was held that the said
provision cannot cure the defect of the nature involved in the case where no notice at
all has been issued by the real assessee responsible for payment of its dues. The
learned Tribunal also took note of the decision in the case of Alamelu Veerappan Vs.
ITO (2018) 95 taxmann.com 155 (Mad) which was rendered by relying upon the
decision of the Hon'ble Supreme Court in CIT VS. Amarchand N. Shroff (1963) 48 ITR
59 (SC).
The learned standing Counsel appearing for the revenue placed reliance
on the decision of the Hon'ble Supreme Court in PCIT Vs. Mahagun Realtors Pvt. Ltd.
(2022) 443 ITR 194 (SC). In fact this decision was also placed by the learned Advocate
by the revenue. The learned Tribunal took note of the facts of the said case and found
that in the said case the assesee had suppressed the fact of amalgamation. However,
in the instant case as pointed out earlier the fact of amalgamation was well within the
knowledge of the assessing officer as early as in the year 2018. So far as filing of
return in the name of the assessee company prior to its amalgamation was an event
which could not be avoided by the assessee and in any event mere filing of such return
cannot be taken to be a ground to cure the inherent defect which goes to the root of
the matter.
Therefore, the decision of the Hon'ble Supreme Court in PCIT Vs. Mahagun
Realtors Pvt. Ltd. (supra) cannot be of any assistance to the facts and circumstances
of the present case.
For the reasons as stated above, the appeal is dismissed.
The substantial questions of law are answered against the revenue.
(T.S. SIVAGNANAM)
CHIEF JUSTICE
(HIRANMAY BHATTACHARYYA, J.)
pkd/GH.
