HIND LEVER CHEMICALS LTD ( SINCE MERGED WITH TATA CHEMICALS LTD), MUMBAI V. ASST CIT 2(3), MUMBAI

ITA 2273/MUM/2013

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4554 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 15-06-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 21-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATAP SINGH
• Keywords: Transfer pricing; Rectification of order; International transaction; Procedural lapse; Scheme of amalgamation; Assessment record; Revised return; Set aside
• Section: 143(3); 142(1); 139(5); 144C; 143(2); 13; 153; 22; 148; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , H BENCH MUMBAI BEFORE SHRI M.BALAGANESH, AM & SHRI PAVAN KUMAR GADALE , JM ITA NO. 2273 /MUM/ 20 13 ( ASSESSMENT YEAR : 2000 - 2001 ) ITA NO. 2274 /MUM/ 2013 ( ASSESSMENT YEAR : 2001 - 200 2 ) ITA NO. 2275 /MUM/ 2013 ( ASSESSMENT YEAR : 2002 - 2003 ) M/S.TATA CHEMICALS LIMITED (AFTER MERGER OF HIND LEVER CHEMICALS LIMITED) 24, HOMI MODY STREET BOMBAY HOUSE FORT, MUMBAI - 400 001 VS. ADDITIONAL CIT 2(3)(1) MUMBAI AAYAKAR BHAWAN, MK ROAD MUMBAI 400 020 PAN/GIR NO. AAACT4059M (APPELLANT ) .. (RESPONDENT ) ITA NO. 3550 /MUM/ 2013 ( ASSESSMENT YEAR : 2000 - 2001 ) ITA NO. 3554 /MUM/ 2013 ( ASSESSMENT YEAR : 2001 - 2002 ) & ITA NO. 3548 /MUM/ 2013 ( ASSESSMENT YEAR : 2002 - 2003 ) DCIT 2(3) MUMBAI R.NO.552, 5 TH FLOOR AAYAKA R BHAWAN, MK ROAD MUMBAI 400 020 VS. M/S.TATA CHEMICALS LIMITED (AFTER MERGER OF HIND LEVER CHEMICALS LIMITED) 24, HOMI MODY STREET BOMBAY HOUSE FORT, MUMBAI - 400 001 PAN/GIR NO. AAACH4118Q / AAACH4115Q ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 2 (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI N ITESH JOSHI, AR REVENUE BY SHRI PRATAP SINGH, CIT DR & SHRI UODAL RAJ SINGH, DR DATE OF HEARING 30 / 09 /2020 DATE OF PRONOUNCEMENT 21 / 10 /2020 / O R D E R PER BENCH : THESE CROSS APPEAL S IN ITA NO S . 2273/MUM/2013 , 3554/MUM/2013 , 2274/MUM/2013 & 3550/MUM/2013 FOR A.Y. 2000 - 01 & 2001 - 02 ARISE OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 6, MUMBAI IN APPEAL NO. CIT(A) - 6/IT - 3/2009 - 10 & CIT(A) - 6/IT - 4/2009 - 10 DATED 21/02/2013 RESPECTIVELY (LD. CIT(A) IN SHORT) AGAINS T THE ORDER OF ASSESSMENT PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 10/02/2006 . THE CROSS APPEALS IN ITA NOS. 2275/MUM/2013 & 3548/MUM/2013 FOR THE A.Y.2002 - 03 ARISE OUT OF ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS ) IN APPEAL NO. CIT(A) - 6/IT - 57/2009 - 10 DATED 08/02/2013 AGAINST THE REGULAR ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S.143(3) OF THE ACT DATED 29/03/2005. 1.1. THE FACTS AND ISSUES INVOLVED IN ONE OF THE ADDITIONAL GROUNDS ON THE PRELIMINARY ISSUE OF FRAMING OF RE - ASSESSMENT IN THE NAME OF AMALGAMATING ENTITY ARE IDENTICAL AND HENCE, ALL THE ISSUES ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 3 2. WITH THE CONSENT OF BOTH THE PARTIES, THE APPEAL FOR THE A.Y.2000 - 01 IS TAKEN AS THE LEAD CASE AND THE DECISION RENDERED THEREO N WOULD APPLY WITH EQUAL FORCE FOR OTHER ASSESSMENT YEARS ALSO. 3 . WE FIND THAT ASSESSEE HAD RAISED AN ADDITIONAL GROUND ON 17/07/2019 STATING THAT RE - ASSE SSMENT PROCEEDINGS HAS BEEN INITIATED BY ISSUANCE OF NOTICE U/S.148 OF THE ACT DATED 29.3.2005 AS WELL AS RE - ASSESSMENT ORDER HAS BEEN PASSED ON THE AMALGAMATING COMPANY I.E. A NON - EXISTENT ENTITY. ACCORDINGLY, THE ENTIRE RE - ASSESSMENT PROCEEDINGS ARE TO B E HELD AS ILLEGAL AND BAD IN LAW. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE AFORESAID ISSUE RAISED IN THE ADDITIONAL GROUND BY THE ASSESSEE ON 17/07/2019 GOES TO THE ROOT OF THE MATTER AND DOES NOT INVOLVE VER IFICATION OF ANY FRESH FACTS AS THE ENTIRE FACTS THEREON ARE VERY MUCH EVIDENT FROM THE ISSUANCE OF NOTICE U/S.148 OF THE ACT FOR THE RELEVANT YEARS AND THE ORDER OF RE - ASSESSMENT BEING FRAMED IN THE NAME OF THE AMALGAMATING COMPANY. HENCE, WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE ON 17/07/2019 BY PLACING RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LIMITED REPORTED 229 ITR 383 (SC) . 4 .1. WE FIND THAT THE BRIEF FACTS INVOLVED WITH REGARD TO THE AFORE SAID ADDITIONAL GROUND RAISED ON 17/07/2019 ARE THAT REGULAR ASSESSMENT IN THE A.Y.2002 - 03 WAS COMPLETED U/S.143(3) OF THE ACT ON 29/03/2005 BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 8, CHANDIGARH. ON THE SAME DAY, I.E. ON 29/03/2005, THE ASSESSM ENT S FOR A.Y.2000 - 01, 2001 - 02 AND 2003 - 04 WERE SOUGHT TO BE REOPENED BY THE SAME ADDITIONAL ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 4 COMMISSIONER BY ISSUE OF NOTICE U/S.148 OF THE ACT DATED 29/03/2005. WE FIND THAT IN THE SAID NOTICE U/S.148 OF THE ACT DATED 29/03/2005, THE FACT OF AMALGAMATION O F HIND LEVER CHEMICALS LTD (HLCL) WITH TATA CHEMICALS LTD (TCL) WAS MENTIONED BY THE LD. AO . THE FOLLOWING CHRONOLOGY OF DATES TOGETHER WITH ITS EVENTS IN TABULAR FORM AS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE WOULD PRESENT THE FACTS OF THE ENTIRE CA SE : - SR. NO. DATE EVENTS 1 HIND LEVER CHEMICALS LTD. (HLCL) HAVING PERMANENT ACCOUNT NUMBER AS AAACH4115Q WAS SUBJECT TO THE JURISDICTION OF ASSESSING OFFICER IN CHANDIGARH FOR THE PURPOSES OF ASSESSMENT OF ITS INCOME. 2 28.11.2000 HLCL FILED ITS RETUR N OF INCOME FOR AY 2000 - 01 DECLARING TOTAL TAXABLE INCOME OF RS. 12,30,27,000 UNDER THE REGULAR PROVISIONS OF THE ACT AND RS. 11,16,45,000 AS BOOK PROFITS UNDER SECTION 115JA OF THE ACT. 3 01.04.2002 HLCL HAS BEEN AMALGAMATED WITH TATA CHEMICALS LTD. (TCL ) WITH EFFECT FROM THE SAID DATE. 4 14.10.2003 THE HIGH COURT AT BOMBAY APPROVED OF THE AFORESAID AMALGAMATION. 5 19.05.2004 THE AFORESAID AMALGAMATION WAS APPROVED BY THE PUNJAB AND HARYANA HIGH COURT. 6 01.06.2004 RELEVANT FILING OF THE HIGH COU RT ORDERS ALONG WITH OTHER DOCUMENTS WAS MADE BEFORE THE REGISTRAR OF COMPANIES. 7 09.06.2004 TCL FILED LETTER DATED 01.06.2004 WITH THE DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - 2(1), CHANDIGARH REQUESTING HIM TO INTER ALIA PLACE THE FACT RELATIN G TO AMALGAMATION ON RECORD. ALONG WITH THE SAID LETTER THE ORDERS PASSED BY THE HIGH COURT AT BOMBAY AND THE PUNJAB AND HARYANA HIGH COURT ALONG WITH COPIES OF PAN CARD OF HLCL AS WELL AS TCL WERE FILED. THIS LETTER FORMS PART OF THE DOCUMENTS FILED BY TH E REVENUE BEFORE THE TRIBUNAL AND IS ANNEXED AS EXHIBIT - A TO THIS SUBMISSION FOR SAKE OF CONVENIENCE. IT ASSUMES SIGNIFICANCE THAT THIS LETTER IS FILED BY THE REVENUE BEFORE THE TRIBUNAL FROM THE ASSESSMENT RECORDS AVAILABLE WITH THEM. 8 29.03.2005 THE AD DITIONAL COMMISSIONER OF INCOME - TAX, RANGE - II, CHANDIGARH ISSUED NOTICE UNDER SECTION 148 OF THE ACT IN THE NAME OF 'HIND LEVER CHEMICALS LTD. C/O. TATA CHEMICALS LTD.' WHICH WAS SENT TO THE ADDRESS OF TCL IN MUMBAI. THE PERMANENT ACCOUNT NUMBER REFERRED T O ON THE SAID NOTICE IS THAT OF HLCL I.E. AAACH4115Q. THE SAID NOTICE ALSO ACKNOWLEDGES THE FACT RELATING TO ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 5 AMALGAMATION (SEE FLAP A - L OF THE CASE LAW PAPER BOOK). THEREFORE, ON 29.03.2005, THE ADDITIONAL COMMISSIONER OF INCOME - TAX RANGE - II, CHANDIGARH WA S AWARE OF THE FACT RELATING TO AMALGAMATION. 9 30.11.2005 PURSUANT TO AFORESAID AMALGAMATION, THE ASSESSING OFFICER EXERCISING JURISDICTION OVER THE ASSESSEE WAS TRANSFERRED FROM CHANDIGARH TO MUMBAI. THEREFORE, THIS IS ONE MORE REASON THAT THE ASSESSING OFFICER PASSING THE ASSESSMENT ORDER WAS FULLY AWARE OF THE FACT RELATING TO AMALGAMATION (SEE FLAP A - 3 OF THE CASE LAW PAPER BOOK). 10 10.02.2006 ACIT CIRCLE - 2(2), MUMBAI PASSED THE ASSESSMENT ORDER WITH THE NAME OF THE ASSESSEE REFERRED TO AS 'HIND LEV ER CHEMICALS LIMITED (SINCE AMALGAMATED WITH TATA CHEMICALS LTD.)'. THE PAN OF HLCL HAS BEEN REFERRED TO THEREIN. IT HAS BEEN ASSESSED ON INCOME OF RS.23,30,11,000 AS PER THE REGULAR PROVISIONS OF THE ACT. 4 .2. IT WAS SUBMITTED THAT THE ASSESSEE COULD N OT FILE REVISED RETURN IN THE NAME OF AMALGAMATED ENTITY AS THE TIME LIMIT FOR FILING U/S 139(5) OF THE ACT HAD EXPIRED. PER CONTRA, THE LD. DR VEHEMENTLY ARGUED THAT IN THOSE DAYS, IT WAS ONLY MANUAL FILING OF RETURNS. HENCE THE ASSESSEE COULD HAVE VERY WELL FILED THE REVISED RETURNS FOR THE RELEVANT ASSESSMENT YEARS UNDER CONSIDERATION. WE FIND THAT THE PROVISIONS OF SECTION 139(5) OF THE ACT STIPULATES THE CIRCUMSTANCES UNDER WHICH REVISED RETURN COULD BE FILED BY AN ASSESSEE. WE FIND THAT THE PRESE NT FACTS OF THE ASSESSEE DOES NOT FIT INTO ANY OF THE CIRCUMSTANCES MENTIONED IN SECTION 139(5) OF THE ACT. HENCE WE AGREE WITH THE LD.ARS ARGUMENT THAT ASSESSEE WAS PREVENTED FROM FILING OF REVISED RETURN BY OPERATION OF LAW. IN ANY CASE, WE FIND THAT THE FACT OF AMALGAMATION HAS BEEN DULY INFORMED BY THE ASSESSEE BEFORE THE LD. AO WHO WAS FRAMING THE REGULAR ASSESSMENT FOR THE ASST YEAR 2002 - 03. DESPITE THAT 4.3. THE AFORESAID TABULA TION WOULD EFFECTIVELY SUMMARISE THE ARGUMENTS ADVANCED BY THE LD. AR ALSO AT THE TIME OF HEARING BEFORE US. FROM THE AFORESAID TABULA TION , IT COULD BE SAFELY CONCLUDED THAT ON THE DATE OF ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 6 ISSUANCE OF NOTICE U/S.148 OF THE ACT DATED 29/03/2005 IN THE NAME OF H L CL(AMALGAMATING COMPANY), THE SAID COMPANY HAD CEASED TO EXIS T IN VIEW OF ITS AMALGAMATION WITH TCL. HENCE, IT WAS THE ARGUMENT OF THE LD. AR THAT THE INITIATION OF RE - ASSESSMENT PROCEEDINGS AS WELL AS SUBSEQUENT FRAMING OF RE - ASSESSMENT ORDER IN THE NAME OF NON - EXISTENT ENTITY IS ILLEGAL AND BAD IN LAW. WE FIND LOT OF FORCE IN THE SAID ARGUMENT ADVANCED BY THE LD. AR AND WE ALSO FIND THAT SIMILAR ISSUE HAD AROSE IN THE GROUP COMPANY OF THE ASSESSEE IN THE CASE OF TATA CHEMICALS LTD.,(AFTER MERGER OF SABRAS INVESTMENT AND TRADING COMPANY LTD.,) VS. JCIT SPECIAL RANGE , MUMBAI IN ITA NOS. 915 TO 918/MUM/2012, 869 TO 872/MUM/2013 FOR A.YRS. 1996 - 97 TO 1999 - 2000 DATED 05/09/2019. THE OPERATIVE PORTION OF THE SAID ORDER IS REPRODUCED HEREUNDER: - 12. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT IT HAS RA ISED ADDITIONAL GROUND IN REGARD TO ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT IS BAD IN LAW AS IT IS MADE ON A NON - EXISTENT ENTITY. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE ADDITIONAL GROUNDS RAISED IN THIS YEAR I.E. AY 1999 - 00. THE LEA RNED FOR THE ASSESSEE STATED THAT THIS ADDITIONAL GROUNDS RAISED HEREIN DO NOT REQUIRE ANY INVESTIGATION OF ADDITIONAL FACTS AND GO TO THE ROOT OF THE MATTER ON THE LEGAL ISSUE INVOLVED. HENCE, HE REQUESTED THAT THE SAID GROUNDS TO BE ADMITTED IN THE INTER EST OF SUBSTANTIAL JUSTICE AND FOR ADMISSION OF ADDITIONAL GROUND, THE LEARNED COUNSEL RELIED ON THE FOLLOWING DECISIONS: - - NATIONAL THERMAL POWER CO. LTD. VS. CIT [229 ITR 383 (SC)] - JUTE CORPORATION OF INDIA LTD. VS. CIT [187 ITR 688 (SC)] - CIT VS. S. NELLIAPPAN [66 ITR 722 (SC)] - AHMEDABAD ELECTRICITY CO. LTD VS. CIT [199 ITR 351 (BOM)] - CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (348 ITR 336 (BOM)] - ASHOK VARDHAN BIRLA VS. CIT [208 ITR 958 (BOM.)] - INAROO VS. CIT (204 ITR 312 (BOM)] - CIT VS. GOVINDRAM BRO S. P. LTD (141 ITR 626 (BOM)] ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 7 - MARUTI SUZUKI LTD. 397 ITR 681 (DEL) 13. FOR THIS, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE AO AS WELL AS THE CIT(A) EVEN IN FIRST AND IN SECOND ROUND FRAMED ASSESSMENT ORDER AND PASSED APPELLATE ORDERS RESPECTIVE LY ON NON - EXISTENT OF COMPANY I.E. SABRAS INVESTMENT AND TRADING COMPANY LIMITED IN THIS ASSESSMENT YEAR. THE LEARNED COUNSEL FOR THE ASSESSEE FIRST OF ALL TOOK US THROUGH THE ASSESSMENT ORDER FOR AY 1999 - 00 PASSED UNDER SECTION 143(3) OF THE ACT DATED 11. 03.2002, WHEREIN ON THE VERY HEADING OF THE ASSESSMENT ORDER IT IS MENTIONED THAT SINCE MERGED WITH TATA CHEMICALS LIMITED, THE RELEVANT DETAILS ARE AS UNDER: - NAME & ADDRESS OF THE ASSESSEE: M/S SABRAS INVESTMENT AND TRADING LTD. (SINCE MERGED WITH M/S TATA CHEMICALS LTD.) PAN/ GIR NO. AABCS8618L DISTRICT/ WARD/ CIRCLE CIRCLE - 2(2) STATUS COMPANY ASSESSMENT YEAR 1999 - 2000 WHETHER RESIDENCE/ RESIDENT BUT NOT ORDINARILY RESIDENT/ NON - RESIDENT RESIDENT METHOD OF ACCOUNTING MERCANTILE PREVIOUS YEAR 31.03.1999 NATURE OF BUSINESS INVESTMENT COMPANY DATE(S) OF HEARING AS PER ORDER SHEET DATE OF ORDER 11 - 03 - 2002 SECTION AND SUBSECTION UNDER WHICH THE ASSESSMENT IS MADE U/S 143(3) OF IT ACT, 1961 14. THE LEARNED CO UNSEL FOR THE ASSESSEE THEN DREW OUR ATTENTION TO PARA 3 OF THE ORDER OF THE AO WHICH READ AS UNDER: - 3. THE ASSESSEE COMPANY WAS WHOLLY OWNED SUBSIDY COMPANY OF M/S TATA CHEMICALS LTD BEFORE ITS MERGER WITH HOLDING COMPANY W.E.F. 01.04.2000. IT WAS AN I NVESTMENT COMPANY HAVING INVESTMENTS IN SHARES AND SECURITIES OF ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 8 VARIOUS COMPANIES AND ALSO EARNED INTEREST ON ADVANCES AND INTER CORPORATE DEPOSITS. 15. ACCORDING TO THE LEARNED COUNSEL, THE AO WAS VERY MUCH AWARE THAT THIS COMPANY HAS MERGED WITH TATA C HEMICALS LIMITED WITH EFFECT FROM 01.04.2000 AND DESPITE THIS FACT, THE ASSESSMENT WAS FRAMED IN THE NAME OF A NON - EXISTENT COMPANY. 16. THE ABOVE FACTS ARE UNDISPUTED AND ADMITTEDLY, ASSESSMENT ORDERS WERE FRAMED IN THIS YEAR AFTER THE AMALGAMATION AND ON A NON - EXISTENT COMPANY. IN VIEW OF THE ABOVE, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THIS ASSESSMENT MADE ON A NON - EXISTENT COMPANY IS BAD IN LAW IN VIEW OF THE SUPREME COURT DECISION IN THE CASE OF PCIT VS. MARUTI SUZUKI INDIA LIMITED (SC) IN C IVIL APPEAL NO. 5409 OF 2019 VIDE ORDER DATED 25 JULY 2019. 17. ON THE OTHER HAND, THE LEARNED CIT DEPARTMENTAL REPRESENTATIVE HAS NOT DISPUTED THE FACT SITUATION BUT HE VEHEMENTLY OPPOSED THE ADMISSION OF ADDITIONAL GROUND. 18. WE HAVE HEARD RIVAL CONTEN TIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTED THAT ADMITTEDLY, THE ASSESSEE IS A NON - EXISTENT COMPANY AND MERGED WITH TATA CHEMICALS LIMITED AS ON 01.04.2000. THESE FACTS ARE UNDISPUTED. ADMITTEDLY, THE ASSESSMENT IS DONE AFTER T HE MERGER IN THE NAME OF A NON - EXISTENT COMPANY. ONCE, THIS IS THE FACT SITUATION, THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LIMITED (SUPRA), WHEREIN IT IS HELD AS UNDER: - 33 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 WA S 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 ENFOTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENFOTAINMENT HAS BEEN FOLLOWED IN THE CAS E 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. ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 9 34. 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 - 12 MUST, IN OUR VIEW BE ADOPTED IN RESPECT OF THE PRESENT APPEAL WHICH RELATES TO AY 2012 - 13. NOT DOING SO WILL ONL Y 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. 19. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LIMITED (SUPRA), WE SET ASIDE THE FINAL ASSE SSMENT ORDER AS IT IS VOID AND AB - INITIO, HAVING BEEN PASSED IN THE NAME OF NON - EXISTENT COMPANY BY THE AO. WE NOTED THAT ONCE THE ASSESSMENT FRAMED IS BAD IN LAW BEING FRAMED ON A NON - EXISTENT COMPANY, THE CONSEQUENT RECTIFICATION ORDER PASSED UNDER SECTI ON 154 OF THE ACT WILL NOT SURVIVE. HENCE, THE RECTIFICATION ORDER PASSED UNDER SECTION 154 IS ALSO QUASHED. THIS ISSUE OF ASSESSEES APPEALS (IN BOTH THE APPEALS I.E. IN ITAS NO. 918/MUM/2012 & 872/MUM/2013 FOR AY 1999 - 2000) ASSESSEE IS ALLOWED. 4.4 . WE FIND IN THE AFORESAID CASE RELIED UPON HEREIN , THE ASSESSMENT ORDER HAD BEEN PASSED IN A SIMILAR MANNER LIKE THE PRESENT ONE BEFORE US WHERE THE NAME OF AMALGAMATING COMPANY WAS REFERRED TO FOLLOWED BY THE FACT THAT THE SAID COMPANY HAD MERGED WITH TCL AND THIS TRIBUNAL BY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF MARUTI SUZUKI INDIA LTD., REPORTED IN 416 ITR 613 HAD DECLARED THE FINAL ASSESSMENT ORDER AS VOID AB INITIO FOR HAVING BEEN PASSED IN THE NAME OF NON - EXISTENT ENTIT Y. WE FIND THAT BEFORE US, THE LD. DR FILED DETAILED WRITTEN SUBMISSIONS BY PLACING RELIANCE ON VARIOUS DECISIONS BY ALSO FILING A DETAILED PAPER BOOK COMPRISING OF VARIOUS DOCUMENTS THROUGH E - MAIL, ALL ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 10 THE FACTUAL DOCUMENTS RELIED UPON BY THE LD. DR AND P LACED ON RECORD BY HIM IN THE PAPER BOOK DOES NOT ADVANCE THE CASE OF THE REVENUE IN AS MUCH AS THE NOTICE U/S.148 OF THE ACT WAS ISSUED IN THE NAME OF NON - EXISTENT ENTITY AND RE - ASSESSMENT FRAMED IN THE NAME OF NON - EXISTENT ENTITY. MERELY , BECAUSE THE ASS ESSEE HAD PARTICIPATED IN THE SAID RE - ASSESSMENT PROCEEDINGS AFTER POINTING OUT THE ACTUAL FACT OF AMALGAMATION BEFORE ERSTWHILE ASSESSING OFFICER, THE ILLEGAL ASSESSMENT FRAMED BY A NON - JURISDICTIONAL AO CANNOT BE SUSTAINABLE IN THE EYES OF LAW. WITH REGA RD TO DECISIONS RELIED UPON BY THE LD. DR, WE FIND THAT ALL THOSE DECISIONS WERE ALREADY CONSIDERED BY THE HONBLE APEX COURT IN THE CASE OF MARUTI SUZUKI INDIA LTD. REPORTED IN 416 ITR 613 AND IN ANY CASE, THE DECISION OF THE HONBLE SUPREME COURT WOULD B IND US AS IT BECOMES THE LAW OF THE LAND UNDER ARTICLE 141 OF THE CONSTITUTION. THE RELEVANT OPERATIVE PORTION OF THE FACTS AS WELL AS THE FINDING GIVEN BY THE HONBLE SUPREME COURT IN MARUTI SUZUKI INDIA LTD. CASE ARE AS UNDER: - 10. ON 11 MARCH 2016, A DRAFT ASSESSMENT ORDER WAS PASSED IN THE NAME OF SUZUKI POWERTRAIN INDIA LIMITED (AMALGAMATED WITH MARUTI SUZUKI INDIA LIMITED). THE DRAFT ASSESSMENT ORDER SOUGHT TO INCREASE THE TOTAL INCOME OF THE ASSESSEE BY RS. 78.97 CRORES IN ACCORDANCE WITH THE ORDE R OF THE TPO IN ORDER TO ENSURE THAT THE INTERNATIONAL TRANSACTIONS WITH REGARD TO THE PAYMENT OF ROYALTY TO THE ASSOCIATED ENTERPRISES IS AT ARMS LENGTH. 11 TO 14. 15 . THE FINAL ASSESSMENT ORDER WAS PASSED ON 31 OCTOBER 2016 IN THE NAME OF SP IL (AMALGAMATED WITH MSIL) MAKING AN ADDITION OF RS. 78.97 CRORES TO THE TOTAL INCOME OF THE ASSESSEE. WHILE PREFERRING AN APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE RAISED THE OBJECTION THAT THE ASSESSMENT PROCEEDINGS WERE CONTINUED IN THE NAME OF THE NON - E XISTENT OR MERGED ENTITY SPIL AND THAT THE FINAL ASSESSMENT ORDER WHICH WAS ALSO ISSUED IN THE NAME OF A NON - EXISTENT ENTITY, WOULD BE INVALID. 16. 17 . MR ZOHEB HOSSAIN, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT SUBMITTED THAT: ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 11 (I) TH E HIGH COURT WAS NOT JUSTIFIED IN QUASHING THE FINAL ASSESSMENT ORDER UNDER SECTION 143 (3) ONLY ON THE GROUND THAT THE ASSESSMENT WAS FRAMED IN THE NAME OF THE AMALGAMATING COMPANY, WHICH WAS NOT IN EXI STENCE, IGNORING THE FACT THAT THE NAMES OF BOTH THE AMALGAMATED COMPANY AND THE AMALGAMATING COMPANY WERE MENTIONED IN THE ASSESSMENT ORDER; (II) TO (VIII) .. (IX) CONSEQUENTLY, IN THE ALTERNATIVE, IN VIEW OF THE ORDER PASSED BY THIS COURT ON 6 APRIL 2018 IN SKYLIGHT HOSPITALITY LLP ON THE ONE HAND AND THE ORDER DATED 16 JULY 2018 IN THE CASE OF THE PRESENT ASSESSEE FOR AY 2011 - 12 AND THE EARLIER ORDER DATED 2 NOVEMBER 2017 IN CIT, NEW DELHI V SPICE ENFOTAINMENT LTD.15 (SPICE ENFOTAINMENT LTD), THER E APPEARS TO BE A DIRECT CONFLICT OF VIEWS ON THE PRINCIPLE WHETHER A NOTICE ISSUED TO A NON - EXISTENT COMPANY WOULD SUFFER FROM A JURISDICTIONAL ERROR OR WHETHER IT IS A MERE DEFECT OR MISTAKE WHICH WOULD BE GOVERNED BY SECTION 292B . 18. . 19 . WHILE ASSESSING THE MERITS OF THE RIVAL SUBMISSIONS, IT IS NECESSARY AT THE OUTSET TO ADVERT TO CERTAIN SIGNIFICANT FACETS OF THE PRESENT CASE: (I) FIRSTLY, THE INCOME WHICH IS SOUGHT TO BE SUBJECTED TO THE CH ARGE OF TAX FOR AY 2012 - 13 IS THE INCOME OF THE ERSTWHILE ENTITY (SPIL) PRIOR TO AMALGAMATION. THIS IS ON ACCOUNT OF A TRANSFER PRICING ADDITION OF RS. 78.97 CRORES; (II) SECONDLY, UNDER THE APPROVED SCHEME OF AMALGAMATION, THE TRANSFEREE HAS ASSUMED THE L IABILITIES OF THE TRANSFEROR COMPANY, INCLUDING TAX LIABILITIES; (III) THIRDLY, THE CONSEQUENCE OF THE SCHEME OF AMALGAMATION APPROVED UNDER SECTION 394 OF THE COMPANIES ACT 1956 IS THAT THE AMALGAMATING COMPANY CEASED TO EXIST. IN SARASWATI INDUSTRIAL SYNDICATE LTD., THE PRINCIPLE HAS BEEN FORMULATED BY THIS COURT IN THE FOLLOWING OBSERVATIONS: 5. GENERALLY, WHERE ONLY ONE COMPANY IS INVOLVED IN CHANGE AND THE RIGHTS OF THE SHAREHOLDERS AND CREDITORS AR E VARIED, IT AMOUNTS TO RECONSTRUCTION OR REORGANISATION OF 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 AMALGAMATI ON IS A BLENDING OF TWO OR MORE 30 [2019] 260 TAXMAN 412 (DEL.) 31 (2019) 261 TAXMAN 137 (GUJ) EXISTING UNDERTAKINGS INTO ONE UNDERTAKING, THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOME SUBSTANTIALLY THE SHAREHOLDERS 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 ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 12 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: HALSBURY'S LAWS OF ENGLAND (4TH EDITION VOLU ME 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. (IV) FOURTHLY, UPON THE AMALGAMATING COMPANY CEASING TO EXIST, IT CANNOT BE REGARDED AS A PERSON UNDER SECTION 2(31) OF THE ACT 1961 AGAINST WHOM ASSESSMENT PROCEEDINGS CAN BE INITIATED OR AN ORDER OF ASSESSMENT PASSED; (V) FIFTHLY, A NOTICE UNDER SECTION 143 (2) WAS ISSUED ON 26 SEPTEMBER 2013 TO THE AMALGAMATING COMPANY, SPIL, WHI CH WAS FOLLOWED BY A NOTICE TO IT UNDER SECTION 142(1) ; (VI) SIXTHLY, PRIOR TO THE DATE ON WHICH THE JURISDICTIONAL NOTICE UNDER SECTION 143 (2) WAS ISSUED, THE SCHEME OF AMALGAMATION HAD BEEN APPROVED ON 29 JANUARY 2013 BY THE HIGH COURT OF DELHI UNDER THE COMPANIES ACT 1956 WITH EFFECT FROM 1 APRIL 2012; (VII) SEVENTHLY, THE ASSESSING OFFICER ASSU MED JURISDICTION TO MAKE AN ASSESSMENT IN PURSUANCE OF THE NOTICE UNDER SECTION 143 (2). THE NOTICE WAS ISSUED IN THE NAME OF THE AMALGAMATING COMPANY IN SPITE OF THE FACT THAT ON 2 APRIL 2013, THE AMA LGAMATED COMPANY MSIL HAD ADDRESSED A COMMUNICATION TO THE ASSESSING OFFICER INTIMATING THE FACT OF AMALGAMATION. IN THE ABOVE CONSPECTUS OF THE FACTS, THE INITIATION OF ASSESSMENT PROCEEDINGS AGAINST AN ENTITY WHICH HAD CEASED TO EXIST WAS VOID AB INITIO. 20 . IN SPICE ENTERTAINMENT, A DIVISION BENCH OF THE DELHI HIGH COURT DEALT WITH THE QUESTION AS TO WHETHER AN ASSESSMENT IN THE NAME OF A COMPANY WHICH HAS BEEN AMALGAMATED AND HAS BEEN DISSOLVED IS NULL AND VOID OR, WHETHER THE FRAMING OF AN ASSESSMENT IN THE NAME OF SUCH COMPANY IS MERELY A PROCEDURAL DEFECT WHICH CAN BE CURED. THE HIGH COURT HELD THAT UPON A NOTICE UNDER SECTION 143 (2) BEING ADDRESSED, THE AMALGAMATED COMPANY HAD BROUGHT THE FACT O F THE AMALGAMATION TO THE NOTICE OF THE ASSESSING OFFICER. DESPITE THIS, THE ASSESSING OFFICER DID NOT SUBSTITUTE THE NAME OF THE AMALGAMATED COMPANY AND PROCEEDED TO MAKE AN ASSESSMENT IN THE NAME OF A NON - EXISTENT COMPANY WHICH RENDERS IT VOID. THIS, IN THE VIEW OF THE HIGH COURT, WAS NOT MERELY A PROCEDURAL DEFECT. MOREOVER, THE PARTICIPATION BY THE AMALGAMATED COMPANY WOULD HAVE NO EFFECT SINCE THERE COULD BE NO ESTOPPEL AGAINST LAW : 11. AFTER THE SANCTION OF THE SCHEME ON 11TH APRIL, 2004, THE SPICE CEASES TO EXIT W.E.F. 1ST JULY, 2003. EVEN IF SPICE HAD FILED THE RETURNS, IT BECAME INCUMBENT UPON THE INCOME TAX AUTHORITIES TO SUBSTITUTE THE SUCCESSOR IN ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 13 PLACE OF THE SAID DEAD PERSON. WHEN NOTICE UNDER SECTION 143 (2) WAS SENT, THE APPELLANT/AMALGAM ATED 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 D AY. IN SUCH PROCEEDINGS AN 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. ONC E IT IS FOUND THAT ASSESSMENT IS FRAMED IN THE NAME OF NON - EXISTING 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. FOLLOWING THE DECISION IN SPICE ENTERTAINMEN T, THE DELHI HIGH COURT QUASHED ASSESSMENT ORDERS WHICH WERE FRAMED IN THE NAME OF THE AMALGAMATING COMPANY IN: (I ) DIMENSION APPARELS; (II) MICRON STEELS; AND (III) MICRA INDIA. 21 . IN DIMENSION APPARELS, A DIVISION BENCH OF THE DELHI HIGH COURT AFFIRMED THE QUASHING OF AN ASSESSMENT ORDER DATED 31 DECEMBER 2010. THE RESPONDENT HAD AMALGAMATED WITH ANOTHER COMPANY AND THUS, CEASED TO EXIST FROM 7 DECEMBER 2009. THE COURT REJECTED THE ARGUMENT OF THE REVENUE THAT THE ASSESSMENT WAS IN S UBSTANCE AND EFFECT IN CONFORMITY WITH THE ACT BY REASON OF THE FACT THAT THE ASSESSING OFFICER HAD USED CORRECT NOMENCLATURE IN ADDRESSING THE ASSESSEE; STATED THE FACT THAT THE COMPANY HAD AMALGAMATED AND MENTIONED THE CORRECT ADDRESS OF THE AMALGAMATED COMPANY. IT WAS THE REVENUES CONTENTION THAT THE OMISSION ON THE PART OF THE ASSESSING OFFICER TO MENTION THE NAME OF THE AMALGAMATED COMPANY IS A PROCEDURAL DEFECT. THE DELHI HIGH COURT REJECTED THIS CONTENTION. IN DOING SO, IT RELIED ON THE HOLDING IN S PICE ENTERTAINMENT, WHERE THE HIGH COURT EXPRESSLY CLARIFIED THAT THE FRAMING OF ASSESSMENT AGAINST A NON - EXISTING ENTITY/PERSON IS A JURISDICTIONAL DEFECT. THE DIVISION BENCH ALSO RELIED ON THE HOLDING IN SPICE ENTERTAINMENT THAT PARTICIPATION BY THE AM ALGAMATED COMPANY IN PROCEEDINGS DOES NOT CURE THE DEFECT AS THERE CAN BE NO ESTOPPEL IN LAW, TO AFFIRM THE QUASHING OF THE ASSESSMENT ORDER. 22 . IN MICRON STEELS, A NOTICE WAS ISSUED TO MICRON STEELS PVT LTD (ORIGINAL ASSESSEE) AFTER IT HAD AMALGAMAT ED WITH LAKHANPAL INFRASTRUCTURE PVT LTD. A DIVISION BENCH OF THE DELHI HIGH COURT UPHELD THE SETTING ASIDE OF ASSESSMENT ORDERS, NOTING THAT SPICE ENTERTAINMENT IS AN AUTHORITY FOR THE PROPOSITION THAT COMPLETION OF ASSESSMENT IN RESPECT OF A NON - EXISTENT ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 14 COMPANY DUE TO THE AMALGAMATION ORDER, WOULD RENDER THE ASSESSMENT A NULLITY. 23 . IN MICRA INDIA, THE ORIGINAL ASSESSEE MICRA INDIA PVT. LTD HAD AMALGAMATED WITH DYNAMIC BUILDMART (P) LTD. NOTICE WAS ISSUED TO THE ORIGINAL ASSESSEE BY THE REVENUE AFTER T HE FACT OF AMALGAMATION HAD BEEN COMMUNICATED TO IT. THE COURT NOTED THAT THOUGH THE ASSESSEE HAD PARTICIPATED IN THE ASSESSMENT, THE ORIGINAL ASSESSEE WAS NO LONGER IN EXISTENCE AND THE ASSESSMENT OFFICER DID NOT THE TAKE THE REMEDIAL MEASURE OF TRANSPOSI NG THE TRANSFEREE AS THE COMPANY WHICH HAD TO BE ASSESSED. INSTEAD, THE ORIGINAL ASSESSEE WAS DESCRIBED AS ONE IN EXISTENCE AND THE ORDER MENTIONED THE TRANSFEREES NAME BELOW THAT OF THE ORIGINAL ASSESSEE. THE DIVISION BENCH ADVERTED TO THE JUDGMENT IN DI MENSION APPARELS WHEREIN THE HIGH COURT HAD DISCUSSED THE RULING IN SPICE ENTERTAINMENT. IT WAS HELD THAT THIS WAS A CASE WHERE THE ASSESSMENT WAS CONTRARY TO LAW, HAVING BEEN COMPLETED AGAINST A NON - EXISTENT COMPANY. 24 . A BATCH OF CIVIL APPEALS WAS FILE D BEFORE THIS COURT AGAINST THE DECISIONS OF THE DELHI HIGH COURT, THE LEAD APPEAL BEING SPICE ENFOTAINMENT. ON 2 NOVEMBER 2017, A BENCH OF THIS COURT CONSISTING OF HONBLE MR JUSTICE ROHINTON FALI NARIMAN AND HONBLE MR JUSTICE SANJAY KISHAN KAUL DISMISSE D THE CIVIL APPEALS AND TAGGED SPECIAL LEAVE PETITIONS IN TERMS OF THE FOLLOWING ORDER : DELAY CONDONED. HEARD THE LEARNED SENIOR COUNSEL APPEARING FOR THE PARTIES. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE IMPUGNED JUDGMENT(S) PASSED BY THE HIGH CO URT. IN VIEW OF THIS, WE FIND NO MERIT IN THE APPEALS AND SPECIAL LEAVE PETITIONS. ACCORDINGLY, THE APPEALS AND SPECIAL LEAVE PETITIONS ARE DISMISSED. 25 . THE DOCTRINE OF MERGER RESULTS IN THE SETTLED LEGAL POSITION THAT THE JUDGMENT OF THE DELHI HIGH COURT STANDS AFFIRMED BY THE ABOVE DECISION IN THE CIVIL APPEALS. 26 THE ORDER OF ASSESSMENT IN THE CASE OF THE RESPONDENT FOR AY 2011 - 12 WAS SET ASIDE ON THE SAME GROUND. THIS RESULTED IN A SPECIAL LEAVE PETITION BY THE PRINCIPAL COMMISSIONER OF INCOME TA X 6 DELHI32. THE SPECIAL LEAVE PETITION WAS DISMISSED BY A TWO JUDGE BENCH OF THIS COURT CONSISTING OF HONBLE MR JUSTICE ROHINTON FALI NARIMAN AND HONBLE MS JUSTICE INDU MALHOTRA ON 16 JULY 2018 IN VIEW OF THE ORDER DATED 2 NOVEMBER 2017 GOVERNING CIVI L APPEAL NO. 285 OF 2014 IN SPICE ENFOTAINMENT AND THE CONNECTED BATCH OF CASES. THOUGH, LEAVE WAS NOT GRANTED BY THIS COURT, REASONS HAVE BEEN ASSIGNED BY THIS COURT FOR REJECTING THE SPECIAL LEAVE PETITION. THE LAW DECLARED WOULD ATTRACT THE APPLICABILIT Y OF ARTICLE 141 OF THE CONSTITUTION. FOR, AS THIS COURT HAS HELD IN KUNHAYAMMED: ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 15 40WHERE THE ORDER REJECTING AN SLP IS A SPEAKING ORDER, THAT IS, WHERE REASONS HAVE BEEN ASSIGNED BY THIS COURT FOR REJ ECTING THE PETITION FOR SPECIAL LEAVE AND ARE STATED IN THE ORDER STILL THE ORDER REMAINS THE ONE REJECTING PRAYER FOR THE GRANT OF LEAVE TO APPEAL. THE PETITIONER HAS BEEN TURNED AWAY AT THE THRESHOLD WITHOUT HAVING BEEN ALLOWED TO ENTER IN THE APPELLATE JURISDICTION OF THIS COURT. HERE ALSO THE DOCTRINE OF MERGER WOULD NOT APPLY. BUT THE LAW STATED OR DECLARED BY THIS COURT IN ITS ORDER SHALL ATTRACT APPLICABILITY OF ARTICLE 141 OF THE CONSTITUTION. THE REASONS ASSIGNED BY THIS COURT IN ITS ORDER EXPRESSING ITS ADJUDICATION (EXPRESSLY OR BY NECESSARY IMPLICATION) ON POINT OF FACT OR LAW SHALL TAKE AWAY THE JURISDICTION OF ANY OTHER COURT, TRIBUNAL OR AUTHORITY TO EXPRESS ANY OPINION IN CONFLICT WITH OR I N DEPARTURE FROM THE VIEW TAKEN BY THIS COURT BECAUSE PERMITTING TO DO SO WOULD BE SUBVERSIVE OF JUDICIAL DISCIPLINE AND AN AFFRONT TO THE ORDER OF THIS COURT.HOWEVER THIS WOULD BE SO NOT BY REFERENCE TO THE DOCTRINE OF MERGER. 27 . THE SUBMISSION HOW EVER 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 WHICH WAS AFFIRMED ON 6 APRIL 2018 BY A TWO JUDGE BENCH OF THIS COURT CONSISTING OF HONBLE MR JUST ICE A K SIKRI AND HONBLE MR JUSTICE ASHOK BHUSHAN SKYLIGHT HOSPITALITY LLP (SUPRA). IN ASSESSING THE MERITS OF THE ABOVE SUBMISSION, IT IS NECESSARY TO EXTRACT THE ORDER DATED 6 APRIL 2018 OF THIS COURT: IN THE PECULIAR FACTS OF THIS CASE, WE ARE CONV INCED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED UNDER SECTION 292B OF THE INCOME TAX ACT. THE SPECIAL LEAVE PETITION IS DISMISSED. PENDING APPLICATIONS ST AND 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 292B . THE PECULIAR FACTS OF SKYLIGHT HOSPITALITY EMERGE FROM THE DECISION OF THE DELHI HIGH COURT. SKYLIGHT HOSPITALITY, AN LLP, HAD TAKEN OVER ON 13 MAY 2016 AND ACQUIRED THE RIGHTS AND LIABILITIES OF SKYLIGHT HOSPITALITY PVT. LTD UPON CONVERSION UNDER THE LIMITED LIABILITY PARTNERSHIP ACT 2008. IT INSTITUTED WRIT PROCEEDINGS FOR CHALLENGING A NOTICE UNDER SECTIONS 147 / 148 OF THE ACT 1961 DATED 30 MARCH 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 SE CTIONS 147 / 148 WAS ISSUED IN THE NAME OF SKYLIGHT HOSPITALITY PVT. LTD. (WHICH HAD CEASED TO EXIST 33 SPECIAL LEAVE PETITION (C) ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 16 NO. 7409 OF 2018 34 SKY LIGHT HOSPITALITY LLP V ASSISTANT COMMISSIONER OF INCOME TAX : (2018) 405 ITR 296 (DELHI) 35 LLP ACT 2008 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 DISS OLVED 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 NU MBER OF THE 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 292B FOR THE FOLLOWING REASONS: 18THERE WAS NO DO UBT 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 11.04.2017. TH EY 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. 28 . THE DECISION IN SPICE ENTERTAINMENT WAS DISTIN GUISHED WITH THE FOLLOWING OBSERVATIONS: 19. PETITIONER RELIES ON SPICE INFOTAINMENT LTD. V. COMMISSIONER OF SERVICE TAX , (2012) 247 CTR 500. SPICE CORP. LTD., THE COMPANY THAT HAD FILED THE RETURN, HAD AMALGAMATED WITH ANOTHER COMPANY. AFTER NOTICE UNDER SECTION 147 / 148 OF THE ACT WAS ISSUED AND RECEIVED IN THE NAME OF SPICE CORP. LTD., THE AS SESSING 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 VALIDIT Y OF ASSESSMENT ORDER WAS RAISED AND EXAMINED. IT WAS HELD THAT THE ASSESSMENT ORDER WAS INVALID. THIS WAS NOT A CASE WHEREIN NOTICE UNDER SECTION 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. 29 . FROM A READING OF THE ORDER OF THIS COURT DATED 6 APRIL 2018 IN THE SPECIAL LEAVE PETITION FILED BY SKYLIGHT HOSPITALITY LLP AGAINST THE JUDGMEN T ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 17 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 292B . THE DECISION IN SKYLIGHT HOSPITALITY LLP HAS BEEN DISTINGUISHED BY THE DELHI, GUJARAT AND MADRAS HIGH COURTS IN: (I) RAJENDER KUMAR SEHGAL; (II) CHANDRESHBHAI JAYANTIBHAI PATEL; AND (III) ALAMELU VEERAPP AN. 30 . THERE IS NO CONFLICT BETWEEN THE DECISIONS OF THIS COURT IN SPICE ENFOTAINMENT (DATED 2 NOVEMBER 2017)36 AND IN SKYLIGHT HOSPITALITY LLP (DATED 6 APRIL 201837). 31 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 T HAT 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 WHIC H HAD SINCE BEEN DISSOLVED WAS ONLY A MISTAKE CURABLE UNDER SECTION 292B . A CLOSE READING OF THE ORDER OF THIS COURT DATED 6 APRIL 2018, HOWEVER INDICATES THAT WHAT WEIGHED IN THE DISMISSAL OF THE SPECI AL 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 INCLUD ING 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 CA SE 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 36 CIVIL APPEAL NO. 285 OF 2014 AND CONNECTED CASES 37 SPECIAL LEAVE PETITION NO. 7409 OF 2018 UNDER SECTION 292B . THUS, THERE IS NO CONFLICT BETWEEN THE DECISIONS IN SPICE ENFOTAINMENT ON THE ONE HAND AND SKYLIGHT HOSPITALITY LLP ON THE OTHER HAND. IT IS OF RELEVANCE TO REFER TO SECTION 292B OF THE INCOME TAX ACT WHICH READS AS FOLLOWS: 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 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, ASSESS MENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 18 IN THIS CASE, THE NOTICE UNDER SECTION 143(2) UNDER WHICH JU RISDICTION 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 292B . 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. (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 ASSESSEED 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 ASSESSEED 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 T HE 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 S UCCESSION OR FOR THE PREVIOUS YEAR PRECEDING THAT YEAR, ASSESSEED 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 RECO VERABLE 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 TH E 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 ASSESSEED AND RECOVERED I N 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 ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 19 MANNER WHATSOEVER, OF THE BUSINESS OR PROFESSION AS A RESULT OF THE SUCCESSION NOW, IN THE PRESENT CASE, LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT SUBMITTED THAT SPIL CEASED TO BE AN ELIGIBLE ASSESSEE IN TERMS OF THE PROVISIONS OF SECTION 144C READ WITH CLAUSE (B) OF SUB SECTION 15 . MOREOVER, IT HAS BEEN URGED THAT IN CONSEQUENCE, THE FINAL ASSESSMENT ORDER DATED 31 OCTOBER 2016 WAS BE YOND LIMITATION IN TERMS OF SECTION 153(1) READ WITH SECTION 153 (4). FOR THE PURPOSES OF THE PRESENT PROCEEDING, WE DO NOT CONSIDER IT NECESSARY TO D ELVE INTO THAT ASPECT OF THE MATTER HAVING REGARD TO THE REASONS WHICH HAVE WEIGHED US IN THE EARLIER PART OF THIS JUDGMENT. 32 . ON BEHALF OF THE REVENUE, RELIANCE HAS BEEN PLACED ON THE DECISION OF THIS COURT IN COMMISSIONER OF INCOME TAX, SHILLONG V JAI PRAKASH SINGH38 (JAI PRAKASH SINGH). THAT WAS A CASE WHERE THE ASSESSEE DID NOT FILE A RETURN FOR THREE ASSESSMENT YEARS AND DIED IN THE MEANTIME. HIS SON WHO WAS ONE OF THE LEGAL REPRESENTATIVES FILED RETURNS UPON WHICH THE ASSESSING OFFICER ISSUED NOT ICES UNDER SECTION 142 (1) AND SECTION 143 (2). THESE WERE COMPLIED WITH AND NO OBJECTIONS WERE RAISED TO THE ASSESSMENT PROCEEDINGS. THE ASSESSMENT ORDER MENTIONED THE NAMES OF ALL THE LEGAL REPRESENTATIVES AND THE ASSESSMENT WAS MADE IN THE STATUS OF AN INDIVIDUAL. IN APPEAL, IT WAS CONTENDED THAT THE ASSESSMENT PROCEEDINGS WERE VOID AS ALL THE LEGAL REPRESENTATIVES WERE NOT GIVEN NOTICE. IN THIS BAC KDROP, A TWO JUDGE BENCH OF THIS COURT HELD THAT THE ASSESSMENT PROCEEDINGS WERE NOT NULL AND VOID, AND AT THE WORST, THAT THEY WERE DEFECTIVE. IN THIS CONTEXT, RELIANCE WAS PLACED ON THE DECISION OF THE FEDERAL COURT IN CHATTURAM V CIT39 HOLDING THAT THE JURISDICTION TO ASSESS AND THE LIABILITY TO PAY TAX ARE NOT CONDITIONAL ON THE VALIDITY OF THE NOTICE : THE LIABILITY TO PAY TAX IS FOUNDED IN THE CHARGING SECTIONS AND NOT IN THE MACHINERY 38 (1996) 3 SCC 525 39 (1947) 15 ITR 302 (FC)PROVISIONS TO DETERMI NE THE AMOUNT OF TAX. RELIANCE WAS ALSO PLACED ON THE DECISION IN MAHARAJA OF PATIALA V CIT40 (MAHARAJA OF PATIALA). THAT WAS A CASE WHERE TWO NOTICES WERE ISSUED AFTER THE DEATH OF THE ASSESSEE IN HIS NAME, REQUIRING HIM TO MAKE A RETURN OF INCOME. THE NOTICES WERE SERVED UPON THE SUCCESSOR MAHARAJA AND THE ASSESSMENT ORDER WAS PASSED DESCRIBING THE ASSESSEE AS HIS HIGHNESSLATE MAHARAJA OF PATIALA. THE SUCCESSOR APPEALED AGAINST THE ASSESSMENT CONTENDING THAT SINCE THE NOTICES WERE SENT IN THE NAME OF THE MAHARAJA OF PATIALA AND NOT TO HIM AS THE LEGAL REPRESENTATIVE OF THE MAHARAJA OF PATIALA, THE ASSESSMENTS WERE ILLEGAL. THE BOMBAY HIGH COURT HELD THAT THE SUCCESSOR MAHARAJA WAS A LEGAL REPRESENTATIVE OF THE DECEASED AND WHILE IT WOULD HAVE BEEN BET TER TO SO DESCRIBE HIM IN THE NOTICE, THE NOTICE WAS NOT BAD MERELY BECAUSE IT OMITTED TO STATE THAT IT WAS SERVED IN THAT CAPACITY. FOLLOWING THESE TWO DECISIONS, THIS COURT IN JAI PRAKASH SINGH HELD THAT AN OMISSION TO SERVE OR ANY DEFECT IN THE SERVICE OF NOTICES PROVIDED BY PROCEDURAL PROVISIONS DOES NOT EFFACE OR ERASE THE LIABILITY TO PAY TAX WHERE THE LIABILITY IS CREATED BY A DISTINCT SUBSTANTIVE PROVISION. THE OMISSION OR DEFECT MAY RENDER THE ORDER IRREGULAR BUT NOT VOID OR ILLEGAL. JAI PRAKASH SI NGH AND THE TWO DECISIONS THAT IT PLACED RELIANCE UPON WERE EVIDENTLY BASED UPON THE SPECIFIC FACTS. JAI PRAKASH SINGH INVOLVED ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 20 A SITUATION WHERE THE RETURN OF INCOME HAD BEEN FILED BY ONE OF THE LEGAL REPRESENTATIVES TO WHOM NOTICES WERE ISSUED UNDER SECTION 142(1) AND 143(2) . NO OBJECTION WAS RAISED BY THE LEGAL REPRESENTATIVE WHO HAD FILED THE RETURN THAT A NOTICE SHOULD ALSO TO BE SERVED TO OTHER L EGAL REPRESENTATIVES OF THE DECEASED ASSESSEE. NO 40 (1943) 11 ITR 202 (BOMBAY) OBJECTION WAS RAISED BEFORE THE ASSESSING OFFICER. SIMILARLY, THE DECISION IN MAHARAJA OF PATIALA WAS A CASE WHERE THE NOTICE HAD BEEN SERVED ON THE LEGAL REPRESENTATIVE, THE S UCCESSOR MAHARAJA AND THE BOMBAY HIGH COURT HELD THAT IT WAS NOT VOID MERELY BECAUSE IT OMITTED TO STATE THAT IT WAS SERVED IN THAT CAPACITY. 33 . IN THE PRESENT CASE, DESPITE THE FACT THAT THE ASSESSING OFFICER WAS INFORMED OF THE AMALGAMATING COMPANY HA VING 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 CEAS ES 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 ENFOTAINMENT ON 2 NOVEMBER 2017. THE DECISION IN SPICE ENFOTAINMENT 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. 34 . 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 CO URT IN RELATION TO THE RESPONDENT FOR AY 2011 - 12 MUST, IN OUR VIEW BE ADOPTED IN RESPECT OF THE PRESENT APPEAL WHICH RELATES TO AY 2012 - 13. 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. 35 . FOR THE ABOVE REASONS, WE FIND NO MERIT IN THE APPEAL. THE APPEAL IS ACCORDINGLY DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. 4.5 . WE FIND IN THE AFORESAID CASE BEFORE THE HONBLE SUPREME COURT ALSO, THE HONBLE SUPREME COURT WAS CONCERNED WITH SIMILAR FACT SCENARIO WHERE THE DRAFT ASSESSMENT ORDER AS WELL AS THE PHYSICAL ASSESSMENT ORDER HAD BEEN PASSED ON THE AMALGAMATING COMPANY FOLLOWED BY REFERENCE TO AMALGAMATED COMPANY IN THE TITLE . IN THAT CASE ALSO , THE ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 21 REVENUES COUNSEL B EFORE THE HONBLE SUPREME COURT URGED THAT SINCE THE ASSESSMENT ORDER HAS BEEN PASSED REFERRING TO BOTH THE NAMES, THE SAID ORDER COULD NOT BE RECORDED AS INVALID. SIMILAR ARGUMENTS WERE ADVANCED BY THE LD. DR BEFORE US ALSO. THIS ASPECT HAS ALREADY BEEN C ONSIDERED BY THE HONBLE APEX COURT WHILE RENDERING ITS DECISION IN MARUTI SUZUKI LTD SUPRA . 4.6 . WE ALSO FIND THAT THE LD. DR HAD PLACED HEAVY RELIANCE ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SKY LIGHT HOSPITALITY LLP VS. ACIT REPO RTED IN 405 ITR 296 WHICH ACCORDING TO THE LD. DR WAS SUBSEQUENTLY APPROVED BY THE HONBLE APEX COURT BY WAY OF DISMISSAL OF SPECIAL LEAVE PETITION. WE FIND THAT THIS JUDGMENT ALSO WAS CONSIDERED BY THE HONBLE APEX COURT WHILE RENDERING ITS DECISION IN MA RUTI SUZUKI INDIA LTD. REFERRED TO SUPRA WHEREIN IT HAD BEEN DULY MENTIONED THAT THE CONCLUSION REACHED IN THE CASE OF SKY LIGHT HOSPITALITY LLP WAS BASED ON ITS PECULIAR FACTS AND HENCE, NOT APPLICABLE. IN FACT, THE HONBLE APEX COURT ALSO PROCEEDED TO AD JUDICATE THE FACTS OF SKY LIGHT HOSPITALITY LLP BY STATING THAT IN THAT CASE THE COMPANY HAD BEEN CONVERTED INTO LIMITED LIABILITY PARTNERSHIP (LLP) AFTER WHICH A NOTICE U/S.148 OF THE ACT HAD BEEN ISSUED IN THE NAME OF ERSTWHILE COMPANY. THE INITIATION OF RE - ASSESSMENT PROCEEDINGS WAS CHALLENGED BY WAY OF WRIT PETITION BEFORE THE HIGH COURT. THE PECULIAR FACTS IN THAT CASE WERE THAT THE TAX EVASION REPORT WHICH FORMED THE BASIS IN FORMATION OF BELIEF WITH RESPECT TO ESCAPEMENT OF INCOME, THE REASONS RECORD ED BEFORE THE REOPENING THE ASSESSMENT AND THE DECISION GIVEN BY THE PR. COMMISSIONER U/S.151 OF THE ACT REFERRED TO LLP AND NOT THE ERSTWHILE COMPANY. FURTHER, IN VARIOUS DOCUMENTS, THE PERMANENT ACCOUNT NUMBER OF LLP WAS MENTIONED. IN THESE PECULIAR FACT S AND CIRCUMSTANCE S , THE COURT HELD THE REFERENCE TO COMPANY IN THE 148 NOTICE AS A CLERICAL ERROR. ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 22 ACCORDINGLY, THE HONBLE APEX COURT IN MARUTI SUZUKI INDIA LTD., HAD DISTINGUISHED THE DECISION OF SKY LIGHT HOSPITALITY REFERRED TO SUPRA. IT IS NOT IN DIS PUTE THAT IN THE INSTANT CASE BEFORE US, THE NOTICE U/S.148 OF THE ACT DATED 29/03/2005 WAS ISSUED IN THE NAME OF NON - EXISTENT ENTITY AND RE - ASSESSMENT WAS ALSO FRAMED IN THE NAME OF NON - EXISTENT ENTITY. 4.7 . IN VIEW OF THE AFORESAID OBSERVATIONS AND ON T HE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AND THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE H O LD THAT NOTICE U/S.148 OF THE ACT DATED 29/03/2005 WAS ISSUED IN THE NAME OF H L CL (NON - EXISTENT ENTITY) AND ACCORDINGLY, REASSESSMENT ORDER FRAMED THER EO N DESERVES TO BE QUASHED AS VOID AB INITIO. ACCORDINGLY, ADDITIONAL GROUND RAISED BY THE ASSESSEE ON 17/07/2019 THAT RE - ASSESSMENT HAS BEEN FRAMED IN THE NAME OF NON - EXISTENT ENTITY IS HEREBY ALLOWED. 5 . SINCE, THE ENTIRE RE - ASSESSMENT IS QUASHED ON THE AFORESAID GROUND, THE ADJUDICATION OF OTHER ADDITIONAL GROUNDS RAISED BY THE ASSESSEE AND ADJUDICATION OF ORIGINAL GROUNDS RAISED BY THE ASSESSEE WOULD BECOME INFRUCTUOUS AND WE REFRAIN TO GIVE OUR OPINION ON THE SAME AND ALL THOSE ISSUES ARE HEREBY LEFT OPEN. 6 . THE DECISION RENDERED HEREIN FOR A.Y.2000 - 01 WOULD APPLY WITH EQUAL FORCE FOR A.Y.2001 - 02. AS FAR AS ASSESSMENT FRAMED FOR A.Y.2002 - 03 IS CONCERNED, WE FIND THAT THIS IS A REGULAR ASSESSMENT FRAMED BY THE LD. AO U/S.143(3) OF THE ACT IN THE NAME OF AMALGAMATING COMPANY (NON - EXISTENT COMPANY) IN A SIMILAR FASHION DESPITE THE FACT THAT THE FACT OF AMALGAMATION WAS DULY BROUGHT TO THE NOTICE OF THE LD. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF AS COULD BE EVIDENT FROM THE AFORESAID CHRONO LOGY OF D ATES AND EVENTS AND VARIOUS FACTUAL DOCUMENTS ITA NO.2273/MUM/2013 AND OTHER APPEALS M/S. TATA CHEMICALS (AFTER MERGER HIND LEVER CHEMICALS LIMITED) 23 AVAILABLE IN THE FACTUAL PAPER BOOK BEFORE US. HENCE THIS REGULAR ASSESSMENT FRAMED U/S 143(3) OF THE ACT FOR THE A.Y. 2002 - 03 ALSO STANDS ON THE SIMILAR FOOTING WITH A.Y. 2000 - 01 AS FAR AS THE ISSUE OF FRAMING ASSESSMENT IN THE NAME OF NON - EXISTENT ENTITY IS CONCERNED. ACCORDINGLY, THE ASSESSMENT FRAMED FOR THE A.Y. 2002 - 03 IS HEREBY DECLARED VOID AB INITIO AND QUASHED. 7 . IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED AND ALL THE APPEA LS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 21 / 10 /2020 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( PAV AN KUMAR GADALE ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 21 / 10 / 2020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//