IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.56004/2018 (T – IT) BETWEEN :
M/s eMUDHRA LTD., (SUCCESSOR IN INTEREST FOR M/s TAXSMILE.COM INDIA PVT. LTD.,) #56, 3RD FLOOR, SAI ARCADE, MARATHAHALLI OUTER RING ROAD DEVERABEESANAHALLI BENGALURU - 560 103 REP BY ITS DIRECTOR SRI VENU MADHAVA S/O SRI APPOO RAO, AGED ABOUT 43 YEARS ...PETITIONER (BY SRI CHYTHANYA K.K., ADV.) AND :
1 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 2(1)(2) ROOM NO.218, 2ND FLOOR BMTC DEPOT, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095.
2 . THE DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 1(3)(2) ROOM NO.540, AAYAKAR BHAVAN M.K.MARG, MUMBAI - 400 020. …RESPONDENTS (BY SRI E.I.SANMATHI, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH, AS FAR AS THE PETITIONER IS CONCERNED, BY AN APPROPRIATE WRIT OR ORDER IN THE NATURE OF CERTIORARI OR OTHERWISE, THE IMPUGNED NOTICE ISSUED UNDER SECTION 148 BEARING DATED 28.03.2018 BY THE LEARNED R-2 FOR THE ASSESSMENT YEAR 2011-2012. THE SAME IS ENCLOSED AS ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has challenged the notice dated 28/03/2018 issued under Section 148 of the Income Tax Act, 1961 (‘Act’ for short) relating to the assessment year 2011-12 and the order of overruling the objections dated 29/11/2018 as well as the notice dated 11/12/2018 issued under Section 142(1) of the Act.
2. The petitioner is a company engaged in the business of software development. The petitioner had filed return of income for the assessment year 2011-12 by declaring total income of Rs.1,52,73,876/- on 21/09/2011.
3. The case of the petitioner’s company was taken up for scrutiny by issuing notice under Section 143(2) of the Act. Thereafter, assessments were concluded under Section 143(3) of the Act, on 31/01/2014 by the second respondent. Subsequently, M/s. Taxsmile.com India Pvt. Ltd., was amalgamated with M/s. eMudhra Ltd., in terms of the order of this Court dated 23/04/2015 passed in Company Petition No. 23/2015 and connected matters with the appointment date fixed as 01/04/2014. The second respondent had issued notice dated 28/03/2018 under Section 148 of the Act, relating to the assessment year 2011-12. On the request made by the petitioner for supply of reasons to re-open the assessment, the same being furnished, the petitioner had filed written objections dated 22/11/2018, the second respondent passed an order dated 29/11/2018 overruling the objections filed by the petitioner. Notice was issued under Section 142(1) of the Act, in the name of M/s. Taxsmile.com India Pvt. Ltd., seeking the petitioner to file the details of the selling cost. The petitioner being aggrieved by the notice issued under Section 148 of the Act as well as the order of overruling the objections on the notice issued under Section 142(1) of the Act, is before this Court.
4. Learned counsel Sri. Chythanya K.K, appearing for the petitioner would submit that the notice issued under Section 148 of the Act impugned herein, is without jurisdiction as issued on the non-existing company and the same is nothing but change of opinion without any tangible material moreover, beyond the period of limitation prescribed under the first proviso to Section 147 of the Act.
5. Learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in the case of Principal Commissioner of Income Tax v. Maruti Suzuki India Ltd., reported in (2019) 107 taxmann.com 375 (SC) in support of his contention.
6. Learned counsel appearing for the revenue would submit that on the date of issuance of notice under Section 148 of the Act, the department was oblivious of the fact of amalgamation of company M/s. Taxsmile.com India Pvt. Ltd., with M/s. eMudhra Ltd. The petitioner has not informed the amalgamation of the company M/s. Taxsmile.com India Pvt. Ltd., with M/s. eMudhra Ltd., neither in the objections filed to the reasons recorded nor at any time, to the authorities. It is for the first time in this writ petition, the petitioner has come up with a plea of non-existence of the company M/s. Taxsmile.com India Pvt. Ltd. The Income Tax Department was not a party to the proceedings before this Court relating to the amalgamation of the company M/s. Taxsmile.com India Pvt. Ltd.
7. Learned counsel made an endeavour to distinguish the judgment of the Hon’ble Apex Court in the case of Maruthi Suzuki India Ltd., supra, contending that upon the order of amalgamation passed by the competent Court, the same was made known to the Income Tax Department in that case, notice was issued in the name of the amalgamating company, despite the amalgamated company MSIL therein, addressed a communication to the officer intimating the fact of amalgamation. In that context, initiation of assessment proceedings against an entity which has ceased to exist was held to be void ab initio, but in the absence of such communication made either by the amalgamating company or amalgamated company, the proceedings initiated under Section 148 of the Act, cannot be held to be against a non-existing company. Accordingly, the learned counsel for the revenue seeks for dismissal of the writ petition.
8. I have given my anxious and careful consideration to the arguments addressed by the learned counsel for the parties and perused the material on record.
9. The main grievance of the learned counsel for the petitioner is that M/s. Taxsmile.com India Pvt. Ltd., was amalgamated with M/s. eMudhra Ltd, in terms of the order dated 23/04/2015 passed in Company Petition No.23/2015 and connected matters, which was well within the knowledge of the department. However, notice under Section 148 of the Act was issued on 28/03/2018 on the non-existing company M/s. Taxsmile.com India Pvt. Ltd.
10. It is not in dispute that the transfer memo along with forwarding memo dated 24/10/2018 was issued by the second respondent forwarding the file for further action to DCIT-2(1)(2), Bangalore, wherein it is specifically stated that the jurisdiction of the assessee lies with the officer at Bengaluru, in view of the amalgamation of M/s. Taxsmile.com India Pvt. Ltd. with M/s. eMudhra Ltd. The Compliance Response Sheet at Annexure-H, furnished by M/s. Taxsmile.com India Pvt. Ltd, indicates that the said company has been merged with M/s. eMudhra Ltd and merged entity’s return has been filed for the assessment year 2015-16 and the same has been acknowledged by the department. This document would disclose that the amalgamation of M/s. Taxsmile.com India Pvt. Ltd with M/s. eMudhra Ltd, was within the knowledge of the department.
11. Though the learned counsel for the revenue made an endeavour to contend that the Income Tax Department not being arrayed as party to the company proceedings, the order was not within its knowledge, cannot be countenanced for the reason that the Registrar of Companies before filing the appropriate affidavit before this Court in the said proceedings had issued notice to the Income Tax Department. Based on the reply received, wherein, it was observed by the department that M/s eMudra Ltd, is required to adhere to the provisions of the Income Tax Act and Rules and also notifications and instructions. Upon the claim being sanctioned and particularly on the subsequent transfer memo issued and the Compliance Response Sheet submitted, the department cannot feign ignorance of the amalgamation order merely for the reason that no specific objection was raised by the petitioner on this aspect in the objections filed to the reasons recorded by the Assessing Officer.
12. In view of the proceedings initiated under Section 148 of the Act at the ‘n’th hour before the limitation getting lapsed on 31/03/2018, even if the matter is now remanded back to the Assessing Officer, it would be a futile exercise, since the defective notice issued under Section 148 of the Act, cannot be cured at this length of time.
13. The Hon’ble Apex Court in the case of M/s.
Maruthi Suzuki Limited supra, has categorically observed thus;
“ In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Entertainment on 2 November 2017. The decision in Spice Entertainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Entertainment.”
While arriving at such a decision, the Hon’ble Apex Court has taken note of Section 292-B of the Act also, which is apposite to refer to and the same reads as under;
“292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provision of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect, or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.”
The jurisdiction assumed by the Assessing Officer to issue notice under Section 148 of the Act to non-
existing company is substantive illegality and not the procedural violation of the nature adverted to in Section 292-B of the Act. The substantive defective notice issued against a non-existing company is not curable. On this ground alone, without adjudicating upon the other issues raised by the petitioner inasmuch as the limitation aspect, change of opinion, non-existence of tangible material and non-failure on the part of the assessee disclosing full and true material facts need not be examined. Without going into these aspects, the writ petition requires to be allowed on the ground of issuance of notice under Section 148 of the Act to the non-existing company.
14. Hence, Notice dated 28/3/2018 issued under Section 148 of the Act, at Annexure-A, the order overruling the objections of the petitioner dated 29/11/2018 at Annexure-B and Notice dated 11/12/2018 issued under Section 142(1) of the Act at Annexure-S are quashed.
15. The writ petition is allowed, in terms of the above.
Sd/- JUDGE Msu