No rectification u/s 292B if Income Tax Assessment Order issued in the Name of a Non-Existent Entity

International Hospital Limited Vs DCIT (Delhi High Court)

Conclusion: An assessment order issued in the name of the non-existent entity, following an amalgamation could not be cured u/s 292B as once the Scheme came to be approved, the transferor companies came to be dissolved by operation of law.

Held: In the instant case, the petition was filed impugning orders of assessment as well as reassessment action initiated by the respondents on the ground of the amalgamated entity having never been placed on notice. Assessee would contend that despite the respondents having been duly apprised of the factum of amalgamation, no notices were served upon the amalgamated entity and orders of assessment as well as notices of reassessment were maintained in the name of the amalgamating entity. This, according to the writ petitioners, would amount to a fatal defect rendering the final orders and notices as framed being null and void. Also, the impugned action of the respondents would not sustain in light of the decision rendered by the Supreme Court in Principal Commissioner of Income Tax, New Delhi vs Maruti Suzuki (India) Limited. The respondents, on the other hand, would urge us to hold that a failure to place the amalgamated entity on notice was curable and one which would fall within the ambit of Section 292B of the Income Tax Act, 1961.  Additionally, the respondents rest their case on a subsequent decision of the Supreme Court in Principal Commissioner of Income Tax (Central)-2 vs. Mahagun Realtors (P) Ltd. It was held that the position in law appeared to be well-settled that a notice or proceedings drawn against a dissolved company or one which no longer existed in law would invalidate proceedings beyond repair. Maruti Suzuki conclusively answered this aspect and left us in no doubt that the initiation or continuance of proceedings after a company had merged pursuant to a Scheme of Arrangement and ultimately came to be dissolved, would not sustain. Assessee had clearly appear to have apprised their respective AOs of the factum of amalgamation and merger at the first available instance. If the respondents chose to ignore or acknowledge those fundamental changes, they would have to bear the consequences which would follow. Once the Scheme came to be approved, the transferor companies came to be dissolved by operation of law. They, thus, ceased to exist in the eyes of law. Proceedings thus drawn in their name would be a nullity and could not be validated by resort to Section 292B of the Act. Moreover, section 170 and which speaks of succession to a business “otherwise than on death”. It was thus concerned with a specific contingency pertaining to succession to a business and how the predecessor and successor were liable to be taxed. It had no concern with the question of whether a notice or order in the name of a non-existent entity could be treated as valid in law.

FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT

1. This batch of writ petitions and a connected Income Tax Appeal impugn orders of assessment as well as reassessment action initiated by the respondents on the ground of the amalgamated entity having never been placed on notice. The petitioners would contend that despite the respondents having been duly apprised of the factum of amalgamation, no notices were served upon the amalgamated entity and orders of assessment as well as notices of reassessment were maintained in the name of the amalgamating entity. This, according to the writ petitioners, would amount to a fatal defect rendering the final orders and notices as framed being null and void. It was their submission that the impugned action of the respondents would not sustain in light of the decision rendered by the Supreme Court in Principal Commissioner of Income Tax, New Delhi vs Maruti Suzuki (India) Limited¹ .

2. The respondents, on the other hand, would urge us to hold that a failure to place the amalgamated entity on notice is curable and one which would fall within the ambit of Section 292B of the Income Tax Act, 1961 ^2. Additionally, the respondents rest their case on a subsequent decision of the Supreme Court in Principal Commissioner of Income Tax (Central)-2 vs. Mahagun Realtors (P) Ltd.³ . It is the aforesaid rival contentions which fall for our consideration in this batch.

3. For facilitating disposal of the present matters, the petitioners had circulated a detailed chart pertaining to each individual writ petitioner encapsulating relevant details pertaining the Scheme of Arrangement as sanctioned by the National Company Law Tribunal⁴ or the concerned High Court, the dates when the factum of merger may have been intimated to the respondents as well as details pertaining to orders of assessment as made or notices issued under Section 148. That chart which was presented for our consideration is appended to the judgment as “Appendix “A”.

4. From the facts which have been set forth in the lead writ petition being W.P.(C) 13807/2022, we find that Religare Securities Ltd ^5. was a company incorporated under the Companies Act, 1956⁶ and was regularly assessed to tax under the provisions of the Act. It is also stated to be a company which was duly listed on the National Stock Exchange as well as the Bombay Stock Exchange and engaged in providing security, brokering and depository services to its retail clients. For Assessment Year⁷ 2015-16, RSL is stated to have filed its return of income on 31 March 2017. An assessment order under Section 143(3) thereafter came to be framed on 10 December 2018. Although that assessment formed subject matter of cross appeals preferred by respective sides before the Income Tax Appellate Tribunal⁸, the dispute forming part of assessee’s appeal ultimately came to be settled under the Direct Tax Vivad se Vishwas Act, 2020⁹ . The appeal of the Revenue, however, continues to remain pending before the Tribunal.

5. Eleven entities of the Religare Group including RSL are stated to have filed a petition before the NCLT for approval of a composite Scheme of Arrangement. It is the case of the writ petitioner that the Assessing Officer¹⁰ of RSL had submitted its No Objection to the proposed Scheme before the NCLT on 28 September 2017. That Scheme ultimately came to be approved by the NCLT on 08 December 2017, pursuant to which the brokering business of RSL was demerged and vested in Religare Broking Ltd. as a going concern while the remaining balances and undertaking of RSL stood amalgamated with the petitioner, Religare Enterprises Ltd. The appointed date under the aforesaid Scheme was prescribed to be 01 April 2016.

6. It is the case of the writ petitioner that the factum of merger was duly intimated to the Assessing Officer on 29 December 2017. The petitioner is also stated to have submitted merged financial statements along with a revised Return of Income on 29 March 2019.

7. On 15 April 2021, a notice under Section 148 came to be issued in the name of RSL. The aforesaid notice was assailed by the writ petitioner by way of W.P.(C) 7132/2021 before this Court and which ultimately came to be allowed along with a batch of writ petitions which formed subject matter of Mon Mohan Kohli v. Assistant Commissioner of Income-tax and Another¹¹ .

8. In terms of the judgment rendered by the Court on that batch, the reassessment notice of 15 April 2021 came to be quashed. The decision in Mon Mohan Kohli as well as judgments rendered on similar lines by different High Courts ultimately travelled up to the Supreme Court and where the controversy with respect to the reassessment regime which would be applicable in respect of notices issued post 01 April 2021 ultimately came to be clarified in terms of the judgment rendered in Union of India and Ors. vs. Ashish Agarwal¹² . Shorn of unnecessary details, suffice it to note that the decisions of different High Courts came to be modified with liberty being accorded to the Revenue to treat the notices originally issued under Section 148 as being referable to Section 148A(b) as introduced by virtue of Finance Act, 2021 and for proceedings to be taken forward in accordance with law.

9. Acting in purported compliance of that decision, the respondents on 25 May 2022 issued a communication in the name of RSL and provided a copy of the information on the basis of which the notice of 15 April 2021 had been initially issued. It is further alleged by the writ petitioner that without granting any right of personal hearing, a final order referable to Section 148A(d) came to be passed on 28 July 2022 followed by a consequential notice under Section 148. It was the aforesaid action which ultimately led to the institution of the present writ petition. It becomes pertinent to note that it was only the Section 148A(d) order and the consequential notice under Section 148 issued pursuant to the aforesaid determination which for the first time came to be framed in the name of the resultant entity, Religare Enterprises Limited. Both the original Section 148 notice as well as the subsequent notice under Section 148A(b) were in the name of RSL.

10. It becomes pertinent to note that although Instruction No. 1/2022 dated 11 May 2022 issued by the Central Board of Direct Taxes¹³ also formed subject matter of challenge in some of the writ petitions forming part of this batch, no arguments were addressed on that score. We thus confine our determination to the principal question of whether the impugned proceedings would sustain when viewed in the context of the same having been drawn in the name of entities which had ceased to exist.

11. The writ petitioners essentially contend that in terms of a Scheme of Arrangement which may ultimately come to be approved by the jurisdictional High Court or the NCLT, the amalgamating entity comes to be dissolved by operation of law. It was contended that the dissolution of the amalgamating corporate entity occurs by virtue of the NCLT or the High Court sanctioning the compromise or arrangement and this by virtue of the provisions made in Sections 230 to 232 of the Companies Act, 2013¹⁴ and which contemplates a deemed dissolution of the transferor company without the process of winding up being resorted to. According to learned counsels who advanced submissions on the writ petitions, the dissolution of the transferor company would lead to the Court coming to the irresistible conclusion that it would have ceased to exist in the eyes of law and thus any notice issued in its name being a nullity.

12. According to the writ petitioners neither Section 159 nor Section 170 of the Act would save or validate a notice that may be issued in the name of a transferor company which did not exist on the relevant date. It was submitted that the Act itself contemplates a charge of tax being imposed on an entity which is in existence on the date of issuance of notice. The principal submission was that once that legal personality which otherwise existed had ceased to remain in existence on the date of issuance of notice, any proceedings drawn in its name or orders passed would be wholly unsustainable in law and liable to be quashed.

13. According to the writ petitioners, the challenge on grounds noticed above is no longer res integra and stands conclusively answered by the Supreme Court in Maruti Suzuki. It becomes pertinent to note that the judgment of the Supreme Court in Maruti Suzuki had come to be rendered on an appeal which arose from a judgment of this Court and which while upholding the decision rendered by the Tribunal had held that an assessment made in the name of Suzuki Powertrain India Ltd.¹⁵, and which had evidently under an approved Scheme amalgamated with Maruti Suzuki India Ltd.¹⁶ , was a nullity. On facts it emerged that MSIL had duly intimated the AO of the amalgamation prior to the case being selected for scrutiny assessment. Notwithstanding that information being available, the AO appears to have framed a draft assessment order in the name of SPIL.

14. It was in the aforesaid backdrop that the Supreme Court firstly took note of an earlier decision of this Court in Spice Entertainment Ltd. vs. Commissioner of Service Tax 17 , where it had been held that an assessment made in the name of a transferor company would be void ab initio and could not possibly be viewed as a procedural defect curable or rectifiable under Section 292B of the Act. This becomes evident from the following conclusions which came to be rendered:

“11. After the sanction of the scheme on 11^th April, 2004, the Spice ceases to exit w.e.f. 1^st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said ‘dead person’. When notice under Section 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law.”

15. The Special Leave Petition which was taken against the judgment in Spice Entertainment came to be dismissed by the Supreme Court in Commissioner of Income Tax, New Delhi vs. Spice Enfotainment Ltd.¹⁸ in the following terms:

“Delay condoned. Heard the learned Senior Counsel appearing for the parties. We do not find any reason to interfere with the impugned judgment(s) [Spice Entertainment Ltd. v. Commr. of Service Tax, 2011 SCC OnLine Del 3210 : (2012) 280 ELT 43] , [CIT v. Dimension Apparels (P) Ltd., 2014 SCC OnLine Del 7588 : (2015) 370 ITR 288] , [CIT v. Chanakaya Exports (P) Ltd., 2014 SCC OnLine Del 7678] , [CIT v. Chanakaya Exports (P) Ltd., ITA No. 721 of 2014, order dated 24-11-2014 (Del)] , [CIT v. Radha Appearals (P) Ltd., 2015 SCC OnLine Del 14568] ^,[CIT v. Intel Technology (India) (P) Ltd., 2015 SCC OnLine Kar 9493] , [CIT v. Chanakaya Exports (P) Ltd., 2015 SCC OnLine Del 14567] , [CIT v. Mayank Traders (P) Ltd., 2015 SCC OnLine Del 14633] , [CIT v. P.D. Associates (P) Ltd., 2015 SCC OnLine Del 14632] , [CIT v. Foryu Overseas (P) Ltd., 2015 SCC OnLine Del 14566] , [CIT v. Sapient Consulting Ltd., 2016 SCC OnLine Del 6615] passed by the High Court. In view of this, we find no merit in the appeals and special leave petitions. Accordingly, the appeals and special leave petitions are dismissed.”

16. The aspect of an assessment coming to be framed in the name of a company which stood dissolved consequent to amalgamation appears to have arisen for consideration of this Court yet again in Sky Light Hospitality LLP vs. Assistant Commissioner of Income Tax¹⁹. The Sky Light Hospitality Court held that a defect in recording the name of a non-existent company would constitute a procedural error which could be cured under Section 292B of the Act. The appeal taken against that decision to the Supreme Court came to be dismissed in Skylight Hospitality LLP vs. Assistant Commissioner of Income Tax²⁰ in the following terms:-

“In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292-B of the Income Tax Act. The special leave petition is dismissed. Pending applications stand disposed of.”

17. In Maruti Suzuki it appears to have been urged by and on behalf of the Revenue that the decision in Spice Entertainment would not hold good in light of the decision which our High Court had pronounced in Sky Light Hospitality and which had come to be affirmed by the Supreme Court. Dealing with the aforesaid contention, the Supreme Court in Maruti Suzuki observed as follows:

“28. The submission, however, which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296] which was affirmed on 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] by a two-Judge Bench of this Court consisting of Hon’ble Mr Justice A.K. Sikri and Hon’ble Mr Justice Ashok Bhushan. In assessing the merits of the above submission, it is necessary to extract the order dated 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] of this Court : (Skylight Hospitality case[Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] , SCC p. 147, para 1)

“1. In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292-B of the Income Tax Act. The special leave petition is dismissed.

Pending applications stand disposed of.”

Now, it is evident from the above extract that it was in the peculiar facts of the case that this Court indicated its agreement that the  wrong name given in the notice was merely a clerical error, capable  of being corrected under Section 292-B. The “peculiar facts” of Skylight Hospitality emerge from the decision of the Delhi High  Court [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155:  (2018) 405 ITR 296]. Skylight Hospitality, an LLP, had taken over  on 13-5-2016 and acquired the rights and liabilities of Skylight  Hospitality Pvt. Ltd. upon conversion under the Limited Liability Partnership Act, 2008 (the LLP Act, 2008). It instituted writ  proceedings for challenging a notice under Sections 147/148 of the  1961 Act dated 30-3-2017 for AY 2010-2011. The “reasons to  believe” made a reference to a tax evasion report received from the  investigation unit of the Income Tax Department. The facts were  ascertained by the investigation unit. The reasons to believe referred to the assessment order for AY 2013-2014 and the findings recorded in it. Though the notice under Sections 147/148 was issued in the  name of Skylight Hospitality Pvt. Ltd. (which had ceased to exist upon conversion into an LLP), there was, as the Delhi High Court  held “substantial and affirmative material and evidence on record” to  show that the issuance of the notice in the name of the dissolved company was a mistake. The tax evasion report adverted to the  conversion of the private limited company into an LLP. Moreover,  the reasons to believe recorded by the assessing officer adverted to  the approval of the Principal Commissioner. The PAN number of LLP was also mentioned in some of the documents. The notice under  Sections 147/148 was not in conformity with the reasons to believe  and the approval of the Principal Commissioner. It was in this  background that the Delhi High Court held that the case fell within  the purview of Section 292-B for the following reasons : (Skylight  Hospitality case [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine  Del 7155 : (2018) 405 ITR 296], SCC OnLine Del para 18)

“18. … There was no doubt and debate that the notice was  meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the  appellant having received the said notice, had filed without  prejudice reply/letter dated 11-4-2017. They had objected to  the notice being issued in the name of the Company, which  had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the  notice was for them. It was replied and dealt with by them.  The fact that notice was addressed to M/s Skylight  Hospitality Pvt. Ltd., a company which had been dissolved,  was an error and technical lapse on the part of the  respondent. No prejudice was caused.”

29. The decision in Spice Entertainment [Spice Entertainment Ltd. Commr. of Service Tax, 2011 SCC OnLine Del 3210 : (2012) 280 ELT 43] was distinguished with the following observations : (Skylight Hospitality case [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405 ITR 296] , SCC OnLine Del para 19)

“19. Petitioner relies on Spice Infotainment v. CIT [ This judgment has also been referred to as Spice Infotainment Ltd. v. CIT, (2012) 247 CTR (Del) 500] . Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. After notice under Sections 147/148 of the Act was issued and received in the name of Spice Corp. Ltd., the assessing officer was informed about amalgamation but the assessment order was passed in the name of the amalgamated company and not in the name of amalgamating company. In the said situation, the amalgamating company had filed an appeal and issue of validity of assessment order was raised and examined. It was held that the assessment order was invalid. This was not a case wherein notice under Sections 147/148 of the Act was declared to be void and invalid but a case in which assessment order was passed in the name of and against a juristic person which had ceased to exist and stood dissolved as per provisions of the Companies Act. Order was in the name of non-existing person and hence void and illegal.”

30. From a reading of the order of this Court dated 6-4-2018 [Skylight Hospitality LLP CIT, (2018) 13 SCC 147] in the special  leave petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this  conclusion that there was only a clerical mistake within the meaning of Section 292-B. The decision in Skylight Hospitality LLP [Skylight Hospitality LLP v. CIT, 2018 SCC OnLine Del 7155 : (2018) 405  ITR 296] has been distinguished by the Delhi, Gujarat and Madras  High Courts in:

(i) Rajender Kumar Sehgal [Rajender Kumar Sehgal CIT, 2018 SCC OnLine Del 12890];

(ii) Chandreshbhai Jayantibhai Patel [Chandreshbhai Jayantibhai Patel CIT, 2018 SCC OnLine Guj 4812]; and

(iii) Alamelu Veerappan [Alamelu Veerappan CIT, 2018 SCC OnLine Mad 13593] .

31. There is no conflict between the decisions of this Court in Spice Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353] (dated 2-11-2017) and in Skylight Hospitality LLP v. CIT [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] (dated 6-4-2018).”

18. Arguments flowing on lines similar to those which were addressed before us in this batch appear to have been urged before the Supreme Court in Maruti Suzuki with it being argued that a notice in the name of a company which stood dissolved would be a curable mistake and that in any case, Section 170 of the Act would save those notices. This becomes apparent from a reading of paragraphs 32 and 33 of the report which are extracted hereinbelow:

“32. Mr Zoheb Hossain, learned counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, this Court did not find any infirmity in the decision of the Delhi High Court holding that the issuance of a notice to an erstwhile private limited company which had since been dissolved was only a mistake curable under Section 292-B. A close reading of the order of this Court dated 6-4-2018 [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] , however indicates that what weighed in the dismissal of the special leave petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the special leave petition this Court observed that it was the peculiar facts of the case which led the Court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292-B. Thus, there is no conflict between the decisions in Spice Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353] on the one hand and Skylight Hospitality LLP [Skylight Hospitality LLP v. CIT, (2018) 13 SCC 147] on the other hand. It is of relevance to refer to Section 292-B of the Income Tax Act which reads as follows:

“292-B. Return of income, etc., not to be invalid on certain grounds.—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 provisions 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.”

In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292-B.

33. In this context, it is necessary to advert to the provisions of Section 170 which deal with succession to business otherwise than on death. Section 170 provides as follows:

“170. Succession to business otherwise than on death.—

(1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession—

(a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession;

(b) the successor shall be assessed in respect of the income of the previous year after the date of succession.

(2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly.

(3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assessed on the predecessor, cannot be recovered from him, the assessing officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor and the successor shall be entitled to recover from the predecessor any sum so paid.

(4) Where any business or profession carried on by a Hindu undivided family is succeeded to, and simultaneously with the succession or after the succession there has been a partition of the joint family property between the members or groups of members, the tax due in respect of the income of the business or profession succeeded to, up to the date of succession, shall be assessed and recovered in the manner provided in Section 171, but without prejudice to the provisions of this section.

Explanation.—For the purposes of this section, “income” includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession.”

19. The Supreme Court in Maruti Suzuki ultimately held:

“36. 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 coordinate Bench of two learned Judges which dismissed the appeal of the Revenue in Spice Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353] on 2-11-2017. The decision in Spice Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353] 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 Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18 SCC 353].

37. We find no reason to take a different view. There is a value which the Court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-2012 must, in our view be adopted in respect of the present appeal which relates to AY 2012­2013. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.”

20. As is evident from the above, Maruti Suzuki came to affirm the view which was expressed by this Court in Spice Entertainment. The Court in Spice Entertainment had identified the principal question to be whether the provisions of Section 292B could be invoked to salvage a situation where an assessment comes to be framed in the name of the transferor company. The Court was called upon to examine whether such an order of assessment would be a nullity or one which could be viewed as suffering from a procedural defect which could be validated by invoking Section 292B. Dealing with this aspect, the Court in Spice Entertainment had observed as follows:-

“8. A company incorporated under the Indian Companies Act is a juristic person. It takes its birth and gets life with the incorporation.  It dies with the dissolution as per the provisions of the Companies  Act. It is trite law that on amalgamation, the amalgamating company ceases to exist in the eyes of law. This position is even accepted by the Tribunal in para-14 of its order extracted above. Having regard this consequence provided in law, in number of cases, the Supreme Court held that assessment upon a dissolved company is impermissible as there is no provision in Income-Tax to make an assessment thereupon. In the case of Saraswati Industrial Syndicate Ltd. v. CIT, 186 ITR 278 the legal position is explained in the following terms:

“The question is whether on the amalgamation of the Indian  Sugar Company with the appellant Company, the Indian  Sugar Company continued to have its entity and was alive  for the purposes of Section 41(1) of the Act. The  amalgamation of the two companies was effected under the  order of the High Court in proceedings under Section 391  read with Section 394 of the Companies Act. The Saraswati  Industrial Syndicate, the trans free Company was a subsidiary of the Indian Sugar Company, namely, the  transferor Company. Under the scheme of amalgamation the  Indian Sugar Company stood dissolved on 29^th October,  1962 and it ceased to be in existence thereafter. Though the  scheme provided that the transferee Company the Saraswati  Industrial Syndicate Ltd. undertook to meet any liability of the Indian Sugar Company which that Company incurred or it could incur, any liaiblity, before the dissolution or not thereafter.

Generally, where only one Company is involved in change  and the rights of the share holders and creditors are varied,  it amounts to reconstruction or reorganisation or scheme of arrangement. In amalgamation two or more companies are  fused into one by merger or by taking over by another.  Reconstruction or amalgamation has no precise legal  meaning. The amalgamation is a blending of two or more  existing undertakings into one undertaking, the share  holders of each blending Company become substantially the  share holders in the Company which is to carry on the  blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to  an existing Company. Strictly amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues  its undertaking but the context in which the term is used may show that it is intended to include such an acquisition.  See Halsburys Laws of England 4^thEdition Vol. 7 Para 1539. Two companies may join to form a new Company,  but there may be absorption or blending of one by the other,  both amount to amalgamation. When two companies are  merged and are so joined, as to form a third Company or one is absorbed into one or blended with another, the  amalgamating Company loses its entity.”

9. The Court referred to its earlier judgment in General Radio and Appliances Co. Ltd. M.A. Khader (1986) 60 Comp Case 1013. In view of the aforesaid clinching position in law, it is difficult to digest the circuitous route adopted by the Tribunal holding that the assessment was in fact in the name of amalgamated company and there was only a procedural defect.

10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in H. Smith (Plant Hire) Ltd. v. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that “once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved”.

11. After the sanction of the scheme on 11^th April, 2004, the Spice ceases to exit w.e.f. 1^st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said ‘dead person’. When notice under Section 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law.

12. Once it is found that assessment is framed in the name of non­existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act. Section 292B of the Act reads as under: –

“292B. No return of income assessment, notice, summons or other proceedings furnished or made or issue or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reasons 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 proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act.”

13. The Punjab & Haryana High Court stated the effect of this provision in CIT Norton Motors, 275 ITR 595 in the following manner:-

“A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. To put it differently, Section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his/its jurisdiction, the same cannot be cured by having resort to Section 292B.”

14. The issue again cropped up before the Court in CIT Harjinder Kaur (2009) 222 CTR 254 (P&H). That was a case where return in question filed by the assessee was neither signed by the assessee nor verified in terms of the mandate of Section 140 of the Act. The Court was of the opinion that such a return cannot be treated as return even a return filed by the assessee and this inherent defect could not be cured inspite of the deeming effect of Section 292B of the Act. Therefore, the return was absolutely invalid and assessment could not be made on a invalid return. In the process, the Court observed as under: –

“Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, we are of the view that the provisions of Section 292B of the 1961 Act do not authorize the AO to ignore a defect of a substantive nature and it is, therefore, that the aforesaid provision categorically records that a return would not be treated as invalid, if the same “in substance and effect is in conformity with or according to the intent and purpose of this Act”. Insofar as the return under reference is concerned, in terms of Section 140 of the 1961 Act, the same cannot be treated to be even a return filed by the respondent assessee, as the same does not even bear her signatures and had not even been verified by her. In the aforesaid view of the matter, it is not possible for us to accept that the return allegedly filed by the assessee was in substance and effect in conformity with or according to the intent and purpose of this Act. Thus viewed, it is not possible for us to accept the contention advanced by the learned Counsel for the appellant on the basis of Section 292B of the 1961 Act. The return under reference, which had been taken into consideration by the Revenue, was an absolutely invalid return as it had a glaring inherent defect which could not be cured in spite of the deeming effect of Section 292B of the 1961 Act.”

15. Likewise, in the case of Sri Nath Suresh Chand Ram Naresh CIT (2006) 280 ITR 396, the Allahabad High Court held that the issue of notice under Section 148 of the Income Tax Act is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act and when such a notice is not issued and assessment made, such a defect cannot be treated as cured under Section 292B of the Act. The Court observed that this provisions condones the invalidity which arises merely by mistake, defect or omission in a notice, if in substance and effect it is in conformity with or according to the intent and purpose of this Act. Since no valid notice was served on the assessee to reassess the income, all the consequent proceedings were null and void and it was not a case of irregularity. Therefore, Section 292B of the Act had no application.

16. When we apply the ratio of aforesaid cases to the facts of this case, the irresistible conclusion would be provisions of Section 292B of the Act are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a ‘dead person’.

17. The order of the Tribunal is, therefore, clearly unsustainable. We, thus, decide the questions of law in favour of the assessee and against the Revenue and allow these appeals.”

21. A few years after Spice Entertainment, a similar question arose yet again in Sky Light Hospitality. Our Court on that occasion came to the conclusion that the mistake in that particular case was a technical error which could be attended to and saved by virtue of Section 292B of the Act. However, and as the Supreme Court itself had an occasion to note in Maruti Suzuki, the Court while coming to hold that Section 292B would apply, had pertinently observed that the material on record was indicative of the Revenue having always intended the notice to be addressed to the successor entity. It becomes pertinent to note that the Court in Sky Light Hospitality had alluded to “substantial and affirmative material and evidence on record” which indicated that the issuance of the notice in the name of the dissolved entity was a mistake. In arriving at that conclusion, it had not only borne in consideration the material which existed on the record as also the tax evasion report which had duly taken note of the conversion of the Private Limited Company into an LLP. It is thus apparent that Sky Light Hospitality came to be rendered in its own peculiar facts. It was in the aforesaid factual backdrop that the Supreme Court in Maruti Suzuki ultimately came to hold that there was no apparent conflict between Spice Entertainment and Sky Light Hospitality with the latter turning upon its individual facts.

22. However, the sheet anchor of the submission of the respondents was, as noticed in the prefatory parts of this decision, the judgment in Mahagun Realtors. However, and as was noticed by a Division Bench of our Court in Commissioner of Income Tax vs Sony Mobile Communications India Pvt. Ltd.²¹ , and which decision we shall advert to a little later, that decision of the Supreme Court itself turned upon the facts of that particular case.

23. In Mahagun Realtors, while expounding upon the effect of merger of two corporate entities consequent to a Scheme of Arrangement being sanctioned, the Supreme Court pertinently observed:-

“18. Amalgamation, thus, is unlike the winding up of a corporate entity. In the case of amalgamation, the outer shell of the corporate entity is undoubtedly destroyed ; it ceases to exist. Yet, in every other sense of the term, the corporate venture continues – enfolded within the new or the existing transferee entity. In other words, the business and the adventure lives on but within a new corporate residence, i.e., the transferee-company. It is, therefore, essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings. There are analogies in civil law and procedure where upon amalgamation, the cause of action or the complaint does not per se cease- depending of course, upon the structure and objective of enactment. Broadly, the quest of legal systems and courts has been to locate if a successor or representative exists in relation to the particular cause or action, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall.”

24. It also noticed the principles which had been spelt out with respect to a Scheme of Arrangement and its impact on a transferor company as was elaborated in Marshall Sons and Co. (India) Ltd. vs. Income Tax Officer²² as would be evident from paragraph 22 of the report:-

“22. The effect of amalgamation in the context of Income-tax, was again considered in another earlier decision, i.e., Marshall Sons and Co. (India) Ltd. v. ITO. There, the court held that:

“14. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it – as has happened in this case – it should follow that the rate of amalgamation/date of transfer is the date specified in the scheme as ‘the transfer date’. It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time ; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant Rules have to be followed and complied with. During the period the proceedings are pending before the court, both the amalgamation units, i.e., the transferor-company and the transferee-company may carry on business, as has happened in this case but normally provision is made for this aspect also in the scheme of amalgamation. In the present scheme, clause 6(b) does expressly provide that with effect from the transfer date, the transferor company (subsidiary company) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the courts have not only sanctioned the scheme in this case but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd. AIR 1919 PC 9, relied on.

Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an 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. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both, of transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best-judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly.” (emphasis supplied)

23. Many High Courts in recent years, had mostly relied upon Saraswati Syndicate which was a case where the transferor entity had claimed a certain relief on the basis of the agreed method of accounting. The corresponding obligation to recognise the demands was sought to be disallowed in the subsequent year, in the case of the then transferee-company. The decision of the Delhi High Court, in Spice (supra), after discussing the decision in Saraswati Syndicate, went on to explain why assessing an amalgamating-company, without framing the order in the name of the transferee company is fatal:

…………………………… ”

25. The Supreme Court proceeded to record its conclusions in this respect in the following terms:-

“30. The combined effect, therefore, of section 394(2) of the Companies Act, 1956, section 2(1A) and various other provisions of the Income-tax Act, is that despite amalgamation, the business, enterprise and undertaking of the transferor or amalgamating company – which ceases to exist, after amalgamation, is treated as a continuing one, and any benefits, by way of carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee. Therefore, unlike a winding up, there is no end to the enterprise, with the entity. The enterprise in the case of amalgamation, continues.”

26. However, and on facts, it found as follows:-

“33. There is no doubt that MRPL amalgamated with MIPL and ceased to exist thereafter; this is an established fact and not in contention. The respondent has relied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in the name of the amalgamating company is void and illegal. The facts of the present case, however, can be distinguished from the facts in Spice and Maruti Suzuki on the following bases.

34. Firstly, in both the relied upon cases, the assessee had duly informed the authorities about the merger of companies and yet the assessment order was passed in the name of the amalgamating/non-existent company. However, in the present case, for the assessment year 2006-07, there was no intimation by the assessee regarding amalgamation of the company. The return of income for the assessment year 2006-07 first filed by the respondent on June 30, 2006 was in the name of MRPL. MRPL amalgamated with MIPL on May 11, 2007, with effect from April 1, 2006. In the present case, the proceedings against MRPL started in August 27, 2008 – when search and seizure was first conducted on the Mahagun group of companies. Notices under section 153A and section 143(2) were issued in the name MRPL and the representative from MRPL corresponded with the Department in the name of MRPL. On May 28, 2010, the assessee filed its return of income in the name of MRPL, and in the “business reorganization” column of the form mentioned “not applicable” in amalgamation section. Though the respondent contends that they had intimated the authorities by letter dated July 22, 2010, it was for the assessment year 2007-08 and not for the assessment year 2006-07. For the assessment years 2007-08 to 2008-09, separate proceedings under section 153A were initiated against MIPL and the proceedings against MRPL for these two assessment years were quashed by the Additional Commissioner of Income-tax by order dated November 30, 2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated August 11, 2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies.

35. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the Department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the present case, the participation in proceedings was by MRPL – which held out itself as MRPL.”

27. After copiously taking note of the disclosures which were made in the course of assessment, it found that the following salient facts emerged in the case of Mahagun Realtors:-

“40. The facts of the present case are distinctive, as evident from the following sequence:

“1. The original return of MRPL was filed under section 139(1) on June 30, 2006.

2. The order of amalgamation is dated May 11, 2007 – but made effective from April 1, 2006. It contains a condition – clause 2 – whereby MRPL’s liabilities devolved on MIPL.

3. The original return of income was not revised even though the assessment proceedings were pending. The last date for filing the revised returns was March 31, 2008, after the amalgamation order.

4. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies:

(i) When search and seizure of the Mahagun group took place, no indication was given about the amalgamation.

(ii) A statement made on March 20, 2007 by Mr. Amit Jain, MRPL’s managing director, during statutory survey proceedings under section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPL’s account. The specific amount admitted was Rs. 5.072 crores, in the course of the statement recorded.

(iii) The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under section 132 of the Act, on August 27, 2008.

(iv) A total of Rs. 30 crores cash, which was seized – was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on August 27, 2008 in the course of the admission, when a statement was recorded under section 132(4) of the Act, by Mr. Amit Jain.

5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on May 28, 2010. Before that, on two dates, i.e., July 22/27, 2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for the assessment year 2007- 08 (for which separate proceedings had been initiated under section 153A) and not for the assessment year 2006-07.

6. The return specifically suppressed – and did not disclose the amalgamation (with MIPL) – as the response to query 27(b) was ‘N.A.’.

7. The return – apart from specifically being furnished in the name of MRPL, also contained its permanent account number.

8. During the assessment proceedings, there was full participation- on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under section 142). Objections to the special audit were filed in respect of portions relatable to MRPL.

9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending March 31, 2006, in the cross-objection before the Income-tax Appellate Tribunal, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence.

10. Assessment order was issued – undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL).

11. Appeals were filed to the Commissioner of Income-tax (and a cross-objection, to the Income-tax Appellate Tribunal) – by MRPL ‘represented by MIPL’.

12. At no point in time – the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL.

13. The counter-affidavit filed before this court – (dated November 7, 2020) has been affirmed by Shri Amit Jain S/o Shri P. K. Jain, who- is described in the affidavit as ‘Director of M/s. Mahagun Realtors (P.) Ltd., R/o…’.””

28. It was on the aforesaid set of facts that it ultimately came to hold as under:

“41. In the light of the facts, what is overwhelmingly evident – is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the Revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation ; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the Commissioner of Income-tax, and a cross-appeal was filed before the Income-tax Appellate Tribunal. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditor’s report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) – but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The Assessing Officer, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the Assessing Officer in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i. e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order – and section 394(2). Furthermore, it would be anybody’s guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the Assessing Officer is, in this court’s opinion in consonance with the decision in Marshall and Sons (supra), which had held that:

“an 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.”

42. Before concluding, this court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case.

43. In view of the foregoing discussion and having regard to the facts of this case, this court is of the considered view, that the impugned order of the High Court cannot be sustained ; it is set aside. Since the appeal of the Revenue against the order of the Commissioner of Income-tax was not heard on the merits, the matter is restored to the file of the Income-tax Appellate Tribunal, which shall proceed to hear the parties on the merits of the appeal – as well as the cross-objections, on issues, other than the nullity of the assessment order, on merits. The appeal is allowed, in the above terms, without order on costs.”

29. As is apparent from the aforesaid extracts, what appears to have weighed upon the Supreme Court in Mahagun Realtors was a deliberate attempt on the part of the successor assessee to misrepresent and perhaps an evident failure to make a candid and full disclosure of material facts. The Court in Mahagun Realtors noticed that even though the factum of amalgamation was known to the assessee, it failed to make appropriate disclosures either at the time of search or in the statements which came to be recorded in connection therewith. Even the Return of Income which came to be filed had suppressed the factum of amalgamation. It also bore in consideration that the Return itself was submitted in the name of the amalgamating entity. It was that very entity in whose name further appeals came to be instituted. It was in the aforesaid backdrop that the Supreme Court was constrained to observe that the conduct of the assessee was evidence of it having held itself out to be the entity which had ceased to exist in the eyes of law coupled with an abject failure on its part to have made a complete disclosure.

30. These distinguishing features which imbue Mahagun Realtors were succinctly noticed in Sony Mobile Communications with the Court observing as under: –

“22. As is evident upon a perusal of the aforementioned extracts from Mahagun Realtors the court distinguished the judgment rendered in Maruti Suzuki, on account of the following facts obtaining in that case :

(i) There was no intimation by the assessee regarding amalgamation of the concerned company.

(ii) The return of income was filed by the amalgamating company, and in the “business reorganisation” column, curiously, it had mentioned “not applicable”.

(iii) The intimation with regard to the fact that the amalgamation had taken place was not given for the assessment year in issue.

(iv) The assessment order framed in that case mentioned not only the name of the amalgamating company, but also the name of the amalgamated-company.

(v) More crucially, while participating in proceedings before the concerned authorities, it was represented that the erstwhile company, i.e., the amalgamating company was in existence.

23. Clearly, the facts obtaining in Mahagun Realtors do not obtain in this matter.

24. As noticed above, even after the Assessing Officer was informed on December 6, 2013, that the amalgamation had taken place, and was furnished a copy of the scheme, he continued to proceed on the wrong path. This error continued to obtain, even after the Dispute Resolution Panel had made course correction.

25. Thus, for the foregoing reasons, we are unable to persuade ourselves with the contention advanced on behalf of the appellant-Revenue, that this is a mistake which can be corrected, by taking recourse to the powers available with the Revenue under section 292B of the Act.”

31. We thus find ourselves unable to read Mahagun Realtors as a decision which may have either diluted or struck a discordant chord with the principles which came to be enunciated in Maruti Suzuki. We also bear in mind the indisputable position of both judgments having been rendered by co-equal Benches of the Supreme Court. Mahagun Realtors is ultimately liable to be appreciated bearing in mind the peculiar facts of that case including the conduct of the assessee therein. It was those facets which appear to have weighed upon the Supreme Court to hold against the assessee.

32. In view of the aforesaid, the position in law appears to be well-settled that a notice or proceedings drawn against a dissolved company or one which no longer exists in law would invalidate proceedings beyond repair. Maruti Suzuki conclusively answers this aspect and leaves us in no doubt that the initiation or continuance of proceedings after a company has merged pursuant to a Scheme of Arrangement and ultimately comes to be dissolved, would not sustain.

33. We note that in this batch of writ petitions and in light of the disclosures which have been made, the assessees clearly appear to have apprised their respective AOs of the factum of amalgamation and merger at the first available instance. If the respondents chose to ignore or acknowledge those fundamental changes, they would have to bear the consequences which would follow. Once the Scheme came to be approved, the transferor companies came to be dissolved by operation of law. They, thus, ceased to exist in the eyes of law. Proceedings thus drawn in their name would be a nullity and cannot be validated by resort to Section 292B of the Act.

34. The submission of the respondents based on Sections 159 and 170 of the Act is equally misconceived. It becomes relevant to note that Section 159 places the liability of a deceased assessee on its legal representatives. It thus creates a right of recourse for the Revenue to pursue and recover outstanding demands. We fail to appreciate how that provision could have any bearing on the question that stood posited. The proceedings impugned herein are not in relation to any right of recovery that may have been asserted or proposed. The challenge is to orders of assessment and initiation of reassessment made or commenced against a non-existent entity.

35. Similarly, Section 170 deals with contingencies where a person succeeds to or takes over an existing business. It thus provides that the successor would be assessed in respect of income which arises or accrues after the date of succession. The income earned prior to the date of succession is liable to be taxed in the hands of the predecessor. While the respondents sought to draw sustenance from the phrase “when the predecessor cannot be found….” as appearing in sub-section (2) thereof, we find ourselves unable to read that expression as being akin to a dissolution of a corporate entity or its merger with another. The expression “cannot be found” cannot be construed as having been intended to cover situations where an entity ceases to exist in law by virtue of an amalgamation or merger. Regard must also be had to the heading of Section 170 and which speaks of succession to a business “otherwise than on death”. It is thus concerned with a specific contingency pertaining to succession to a business and how the predecessor and successor are liable to be taxed. It has no concern with the question of whether a notice or order in the name of a non-existent entity could be treated as valid in law.

ITA 116/2023 [International Hospital Ltd. Vs. DCIT Circle 12(2)]

36. The aforenoted appeal which stood tagged with the batch poses the following question of law for our consideration: –

“Whether the Income Tax Appellate Tribunal has misdirected itself in law and on facts in sustaining the order of the Commissioner of Income Tax (Appeals) dated 30.05.2019 and the order dated 29.01.2019 passed by the Assessing Officer (AO) under Section 154 of the Income Tax Act, 1961?”

37. Escorts Heart and Super Specialty Institute Ltd²³ is stated to have filed its Return of Income for AY 2013-14 on 30 September 2013. Pursuant to a Scheme of Arrangement which came to be sanctioned by the Punjab and Haryana High Court on 13 December 2013 it merged with International Hospital Limited²⁴ , the appellant herein. The appointed date under the Scheme was stipulated to be 01 January 2013. A notice under Section 143(2) came to be issued in the name of EHSSIL on 05 September 2014. During the course of the assessment which ensued, the Revenue is stated to have been duly apprised the respondents of the sanction of the Scheme and EHSSIL having merged with IHL. The appellants have also placed on our record a letter dated 16 February 2016 in terms of which details relating to the Scheme were duly provided to the AO.

38. The record further bears out that the AO had duly acknowledged the factum of merger and had specifically alluded to the order of the High Court. However, the ultimate assessment order dated 28 March 2016 came to be drawn in the name of EHSSIL. In the appeal which was preferred by IHL before the Commissioner of Income Tax (Appeals)²⁵ , a specific ground with respect to invalidity of that order on the ground of the same having been made in the name of EHSSIL was taken. It was during the pendency of that appeal that the AO invoked Section 154 asserting that the assessment order had inadvertently come to be framed in the name of EHSSIL. It is the validity of this order which was questioned before the Tribunal. The Tribunal has upheld the action of the AO leading to the filing of the present appeal.

39. We find ourselves unable to be concur with the view as taken by the Tribunal for the following reasons. Undisputedly, the factum of merger was duly brought to the notice of the AO. In fact, the said authority has duly taken note of the order of the High Court and in terms of which the Scheme had come to be approved. However, inexplicably, it proceeded to frame an order in the name of EHSSIL. We note that the Return in this case was submitted by EHSSIL prior to the Scheme being sanctioned. It was perhaps in that backdrop that the notice under Section 143(2) came to be issued in its name, albeit after the Scheme had come into force. The assessment proceedings were thus ongoing at the time when the Scheme came to be sanctioned.

40. However, and admittedly, the factum of merger had been duly brought to the attention of the AO. The merger was taken into consideration at more than one place in the order of assessment that came to be framed. Despite the above, the AO proceeded to draw the order in the name of an entity which had ceased to exist. We also bear in consideration the indubitable fact that the rectification order came to be passed three years after the framing of the original order of assessment, and that too, during the pendency of the appeal of the assessee and where a specific ground of challenge was raised in this regard. This was therefore not a case of discovery of an inadvertent error or mistake immediately after the passing of an order.

41. We also bear in consideration Maruti Suzuki having clearly held that such a mistake would not fall within the ken of Section 292B of the Act. An exercise of rectification as undertaken in the present case, if accorded a judicial imprimatur, would in effect amount to recognising a power to amend, modify or correct in an attempt to overcome a fundamental and jurisdictional error contrary to the principles enunciated in Maruti Suzuki.

42. We also cannot lose sight of the fact that this was not a case where the assessee had attempted to mislead or suppress material facts and which may have warranted the case of the assessee being placed in the genre which was considered in Mahagun Realtors. The mere submission of replies on the letter head of EHSSIL also fails to convince us to hold in favour of the Revenue. In any event, none of the authorities below have held that the appellant was guilty of suppression. We would thus be inclined to allow the instant appeal and answer the question as posed in favour of the appellant and against the Revenue.

W.P.(C) 5021/2022, W.P.(C) 5022/2022, and W.P.(C) 5118/2022 [M/s Nokia Solutions and Networks India Private Limited (Successor of Nokia Siemens Networks India Private Limited) vs. Deputy Commissioner of Income Tax, Circle 16(1) and Anr.]

43. These writ petitions assail the notices issued under Section 142(1) on the ground that although they have been drawn in the name of the resultant entity which came into existence consequent to a Scheme being approved, they bear the PAN of the erstwhile entity and which had since then ceased to exist. We find ourselves unable to place that mistake in the category of a “fundamental flaw” or “incurable illegality” as explained in Maruti Suzuki. Although, reliance is placed on a decision rendered inter partes in Pr. Commissioner of Income Tax-6 vs. Nokia Solutions & Network India Pvt. Ltd (Formerly known as, Nokia Siemens Network Pvt. Ltd.)²⁶ , the decision in Nokia Solutions was dealing with a case of an incurable illegality. This since the directions of the Dispute Resolution Panel as well as the final order of assessment were made in the name of an entity which had ceased to exist. The case in Nokia Solutions is distinct from the facts which obtain in the present writ petitions and where the only mistake which is alluded to is the mentioning of a wrong PAN.

44. Although in the writ petition it is averred that the original Section 148 notice was never served upon the petitioner, we find that the order of 15 March 2022 speaks of various subsequent notices which had been issued and remained unanswered. In any event, the present writ petitions merely impugn the notice under Section 142(1) with no challenge having been mounted in respect of the original notice of reassessment. These petitions would consequently merit dismissal.

45. The present order, however, would be without prejudice to such other rights and contentions that may be available and would be open to be canvassed in the ongoing reassessment action.

W.P.(C) 5475/2022 [Shakuntlam Softech Private Limited (now amalgamated with Shakuntlam Securities Private Limited) vs. Income Tax Officer Ward 23(1) Delhi & Anr.] and W.P.(C) 4558/2023 [Suncity Hi-Tech Infrastructure Private Limited – After Merger of M/s Super Built Real Estates and Land Developers Pvt. Ltd. vs. Income Tax Officer, Ward 24-1, Delhi & Anr.]

46. Although these matters were included in the batch, there appears to be a factual dispute as to whether disclosures with respect to the sanction of the Scheme were made in the course of the assessment proceedings. The respondents categorically assert that no information with respect to a Scheme that may have been approved was provided during the course of assessment. The petitioners on the other hand aver that the respondents had been duly placed on notice of the proceedings pending before the NCLT and which had preceded the ultimate approval of the Scheme. In W.P.(C) 4558/2023, the petitioners allude to a communication issued by the Regional Director while the Scheme was pending approval.

47. As is manifest from the aforesaid recordal of facts, there was an abject and evident failure on the part of the petitioners to apprise the respondents of a Scheme which stood duly approved. Even if the concerned AO were assumed to have derived knowledge of the pendency of proceedings before the NCLT or called upon to furnish a consent to the proposed Scheme, the same would not absolve the assessee from the obligation of duly apprising the respondents once a Scheme of Arrangement came to be approved. These writ petitions would thus merit dismissal.

OPERATIVE DIRECTIONS

48. We accordingly allow the following writ petitions and quash the below mentioned notices/orders:-

Case Number	Date of Impugned Notice/Order	Section under which the Notice/Order has been issued
W.P(C)13807/2022	15 April 2021 25 May 2022 28 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C)11498/2019	28 March 2019	Notice under Section 148
W.P.(C) 1894/2020	29 March 2019	Notice under Section 148
W.P.(C)10882/2021	30 June 2021	Assessment Order under Section 143(3) read with Section 144B
W.P.(C) 13862/2021	28 March 2021	Notice under Section 148
W.P.(C) 13883/2021	28 March 2021	Notice under Section 148
W.P.(C) 13930/2021	26 March 2021	Notice under Section 148
W.P.(C) 14005/2021	26 March 2021	Notice under Section 148
W.P.(C) 14061/2021	26 March 2021	Notice under Section 148
W.P.(C) 14062/2021	26 March 2021	Notice under Section 148
W.P.(C) 14296/2021	28 March 2021	Notice under Section 148
W.P.(C) 14306/2021	26 March 2021	Notice under Section 148
W.P.(C) 14798/2021	26 March 2021	Notice under Section 148
W.P.(C) 4035/2022	26 March 2021	Notice under Section 148
W.P.(C) 4038/2022	26 March 2021	Notice under Section 148
W.P.(C) 4103/2022	26 March 2021	Notice under Section 148
W.P.(C) 4925/2022	26 March 2021	Notice under Section 148
W.P.(C) 5082/2022	26 March 2021	Notice under Section 148
W.P.(C) 5134/2022	26 March 2021	Notice under Section 148
W.P.(C) 5161/2022	27 March 2021	Notice under Section 148
W.P.(C) 5165/2022	26 March 2021	Notice under Section 148
W.P.(C) 5166/2022	26 March 2021	Notice under Section 148
W.P.(C) 5171/2022	26 March 2021	Notice under Section 148
W.P.(C) 7151/2022	28 March 2022	Assessment Order under Section 147 read with Section 144
W.P.(C) 7217/2022	30 March 2022	Assessment Order under Section 147 read with Section 144
W.P.(C) 13991/2022	21 June 2021 23 May 2022 25 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C) 14034/2022	27 May 2022 28 July 2022	Order under Section 148A(b) Order under Section 148A(d) and Notice under Section 148
W.P.(C) 17290/2022	25 June 2021 30 May 2022 30 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C) 17329/2022	20 April 2021 27 May 2022 28 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C) 3885/2023	15 April 2021 26 May 2022 27 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C) 5868/2023	30 June 2021 20 May 2022 30 July 2022	Notice under Section 148 Order under Section 148A(b)Order under Section 148A(d) and Notice under Section 148
W.P.(C) 7775/2023	14 March 2023 23 March 2023	Order under Section 148A(b) Order under Section 148A(d) and Notice under Section 148
W.P.(C) 7487/2024	23 February 2024 22 March 2024	Order under Section 148A(b) Order under Section 148A(d) and Notice under Section 148

49. For reasons assigned in Paragraphs 43 to 45 we dismiss W.P.(C) 5021/2022, W.P.(C) 5022/2022, and W.P.(C) 5118/2022. All rights and contentions of respective parties on merits are kept open.

50. For reasons assigned in Paragraphs 46 and 47 we dismiss W.P.(C) 5475/2022 and W.P.(C) 4558/2023. All rights and contentions of respective parties on merits are kept open.

51. In light of our conclusion rendered in paragraph 42, ITA 116/2023 shall stand allowed. The order of the Tribunal dated 23 September 2022 is set aside. The appellant would be entitled to consequential relief.

Notes:

¹ (2020) 18 SCC 331

² Act

³ 2022 SCC OnLine SC 407

⁴ NCLT

⁵ RSL

⁶ 1956 Act

⁷ AY

⁸ Tribunal

⁹ The 2020 Act

¹⁰ AO

¹¹ 2021 SCC OnLine Del 5250

¹² (2023) 1 SCC 617

¹³ CBDT

¹⁴ 2013 Act

¹⁵ SPIL

¹⁶ MSIL

¹⁷ 2011 SCC OnLine Del 3210

¹⁸ (2020) 18 SCC 353

¹⁹ 2018 SCC OnLine Del 7155

²⁰ (2018) 13 SCC 147

²¹ 2023 SCC OnLine Del 1231

²² (1997) 2 SCC 302

²³ EHSSIL

²⁴ IHL

²⁵ CIT(A)

²⁶ ITA 135/2018 decided on 06 February 2018