IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nTeleperformance Towers Mindspace, )
\nGoregaon (West), Mumbai 400 104, )
\nMaharashtra, India \u2026 Petitioner
\nVs.
\n1. Assistant Commissioner of Income-tax )
\nCentral Circle 25(1), New Delhi, )
\nC R Building, ITO, I P Estate, 104B, )
\nIndrapastha Marg, New Delhi 110 002 )
\n2. Principal Commissioner of Income-tax 25(1),
\nC R Building, ITO, I P Estate, 104B, )
\nIndrapastha Marg, New Delhi 110 002 )
\n3. Assistant Commissioner of Income-tax-12 )
\nCentral Circle 12(2)(2), Mumbai, Aaykar )
\nBhavan, Maharishi Karve Road, )
\nMumbai 400 020, Maharashtra )
\n4. Principal Commissioner of Income-tax-12 )
\nRoom No. 127, 1st Floor, Aaykar )
\nBhavan, Maharishi Karve Road, )
\nMumbai 400 020, Maharashtra )
\n5. Union of India, Department of Legal Affairs
\nMinistry of Law and Justice, Government )
\nof India, 4th Floor, A-Wing, Shastri Bhavan )
\nNew Delhi \u2013 110 001 \u2026 Respondents
\n***
\nMr. Jehangir D. Mistri, Sr. Counsel a\/w Madhur Agarwal and Atul
\nJasani, for the Petitioner.
\nMr. Sham Walve, for the Respondents.
\n***
\n1 \/ 18
\nWRIT PETITION No. 950 OF 2020
\nTeleperformance Global Services )
\nPrivate Limited, Plot CST No. 1406-A\/28 )
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\nWP. 950- 2020
\nCORAM : SUNIL P. DESHMUKH, & J.
\nRESERVED FOR JUDGMENT : MARCH 17, 2021
\nJUDGMENT PRONOUNCED ON : APRIL 9, 2021
\nJUDGMENT [PER : SUNIL P. DESHMUKH, J.]
\n1. Rule. Rule made returnable forthwith. Heard learned
\nSenior Advocate Mr. J. D Mistri for the petitioner and Mr. Sham Walve
\nadvocate for respondent-State finally by consent.
\n2. The petition questions propriety, legality and validity of
\nnotice dated 30th March, 2019 issued by respondent No. 1 – the
\nAssistant Commissioner of Income Tax, Delhi pursuant to section 148
\nof the Income Tax Act, 1961 (for short \u201cthe Act\u201d) for the assessment
\nyear 2012-13; and order dated 31st December, 2019 passed under
\nsection 144 read with section 147 of the Act in the name of M\/s.
\nTecnovateEsolutions Private Limited.
\n3. Mr. J. D. Mistri, learned senior advocate for the petitioner
\ndraws our attention to the factual events that, M\/s. Tecnovate
\nEsolutions Pvt. Ltd. (for short \u201cTSPL\u201d) was a registered company
\nengaged in business of providing back office support services\/ remote
\ndata entry services for customers in and outside India. Under order
\ndated 11th February, 2011, a scheme of amalgamation of aforesaid
\ncompany with M\/s. Intelnet Global Services Pvt. Ltd. , was approved
\n2 \/ 18
\nDESHMUKH
\nABHAY AHUJA, JJ.
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\nWP. 950- 2020
\nwith effect from 1st April, 2010 and since then the aforesaid TSPL
\nceased to exist. Subsequently, M\/s. Intelenet Global Services Pvt. Ltd.
\namalgamated with M\/s. Serco BPO Pvt. Ltd. Thereafter there had been
\nchange in the name with effect from 11th January, 2016 from M\/s.
\nSerco BPO Pvt. Ltd to M\/s. Intelnet Global Services Pvt. Ltd. There
\nhad been a further change in the name from M\/s. Intelenet Global
\nServices Pvt. Ltd to Teleperformance Global Services Pvt. Ltd.
\n(TGSPL) with effect from 12th February, 2019. He submits that as
\nsuch, petitioner is successor of M\/s. TecnovateEsolutions Pvt. Ltd.
\n4. It has been referred to that post amalgamation, for
\nassessment year 2012-13 M\/s. Intelenet Global Services Pvt. Ltd. filed
\nits income tax returns on 30th November, 2012 and revised its return on
\n31st March, 2014 for the period 1st April, 2011 to 6th July, 2011. Its
\nassessment was completed under ection 143(3) of the Act vide order
\ndated 23rd September, 2016. M\/s. Intelenet Global Services Pvt. Ltd.
\nhad filed returns for the period from 7.07.2011 to 31.03.2012 on 30th
\nNovember, 2012 and revised returns on 31st March, 2014. Its
\nassessment had been completed under Section 143(3) of the Act under
\norder 31st January, 2017.
\n5. Notice dated 30th March, 2019 under section 148 of the
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\nWP. 950- 2020
\nAct for the assessment year 2012-13 in the name of TSPL had been
\nissued by respondent No. 1 directing to file return of income within
\nthirty days stating there is reason to believe that income chargeable to
\ntax had escaped assessment,, without realising that said company was
\na non existing entity.
\n6. He submits, petitioner became aware of aforesaid notice
\nbased on telephonic conversation of respondent No. 1 with an
\nemployee of petitioner in second week of September, 2019. Petitioner
\nhad filed a letter dated 18th September, 2019 stating that TSPL has
\nbeen amalgamated with effect from 1st April, 2010 and since then said
\ncompany has ceased to exist, and as such, there is no question of filing
\nreturns of income for assessment year 2012-13 by said company. The
\nthen company M\/s. Intelenet Global Services pvt. Ld. had duly filed
\nreturns of income for all the subsequent assessment years, and had as
\nsuch submitted that the notice had been issued on misconception and
\nappears to be an inadvertent error. In ensued telephonic conversation
\nwith respondent No. 1, the petitioner was advised to file online
\nresponse. While attempts had been unsuccessful and portal was not
\nletting petitioner to upload any document including reply, reply had
\nbeen submitted via email on 29th November, 2019, enclosing a separate
\nletter of even date. Petitioner had submitted that even after merger,
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\nWP. 950- 2020
\nsome times the payers make payment to the petitioner, however,
\nerroneously, continue to mention the PAN of erstwhile company and
\naccordingly said deduction is reflected in the 26 AS of erstwhile
\ncompany and not petitioner company, and petitioner in its return
\nconsidered all such payments and claimed all such deduction. As such,
\nthere is no question of escaping assessment for the assessment year
\n2012-13.
\n7. It is contended that without considering the reply or even
\nreferring to the telephonic conservation of petitioner with respondent
\nNo. 1, assessment order dated 31st December, 2019 for the assessment
\nyear 2012-13, under section 144 read with section 147 of the Act, in
\nthe name of TSPL computing total income at Rs. 14,50, 95,452\/- was
\npassed. It has been referred to that respondent No. 1 purports to allege
\nthat petitioner had neither filed response to the show-cause notice nor
\nfiled returns of income for relevant assessment year. As per 26AS
\nstatement, taxes have been deducted with respect to transactions
\namounting to Rs. 14.51 Crores, hence, the same is treated as taxable
\nunder the provisions of the Act.
\n8. Petitioner on realising that assessment order dated 31st
\nDecember, 2019 had been passed against M\/s. TecnovateEsolutions
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\nPvt. Ltd., the petitioner is constrained to file writ petition, challenging
\nnotice dated 30th March, 2019 and assessment order dated 31st
\nDecember, 2019.
\n9. Mr. Mistri, learned senior counsel submits that while the
\nfacts are indisputable, impugned notice dated 30th March, 2019 and
\nimpugned order dated 31st December, 2019 for assessment year 2012-
\n13 in the name of M\/s. Tecnovate Esolutions Pvt. Ltd. are clearly
\nwithout jurisdiction. He submits that having ragard to the
\namalgamations with effect from 1st April, 2010 onwards petitioner is
\nthe only company in existence and subsequent to period of the merger,
\nany proceedings could be initiated only by officer having jurisdiction
\nover the petitioner i.e. respondent No. 3 and not respondent No. 1.
\nImpugned notice issued for the period viz. assessment year 2012-13
\nafter the amalgamation is clearly outside the scope of jurisdiction of
\nrespondent No. 1. He refers to the letters dated 18th September, 2019
\nand 29th November, 2019 as well as e-mails dated 16th October, 2019.
\nHe submits that despite aforesaid, the decision purports to consider
\nthat impugned notice has not been responded to. He submits that there
\nis not even a whisper about the objection by petitioner to the notice
\nand the proceedings. He submits that no assessment or re-assessment
\nproceedings can be initiated against a person not in existence during
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\n31
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\nWP. 950- 2020
\nthe relevant period. Thus the impugned notice and impugned order are
\nabsolutely without jurisdiction. He submits that it has been ignored
\nthat M\/s. Tecnovate Esolutions Pvt. Ltd. had not been in existence
\nwith effect from 1.4.2010 for the financial year 2011-12. He submits
\nthat M\/s. Intelenet Global Services Pvt. Ltd. had already filed returns
\nof income for the assessment year 2012-13 and assessment completed
\nunder Section 143(3) of the Act. In the circumstance, there is no
\nquestion of assessment being reopened or the assessment order being
\npassed in the name of erstwhile company.
\n10. He submits, petitioner was not afforded any opportunity
\nof hearing. Notice dated 4th December, 2019 was not served on the
\npetitioner, even the same was not uploaded on the e-portal. The
\nimpugned notice and the impugned order of assessment are in breach
\nof principles of natural justice. He thereafter, urges to allow the
\npetition, quashing and setting aside impugned notice date 30th March
\nand the impugned order dated 31st December, 2019.
\n11. Respondent No. 4 has submitted its reply. The petition is
\nresisted contending that notice dated 30th March, 2019 and assessment
\norder dated 31st December, 2019 for assessment year 2012-13 are legal
\nand sustainable as per the provisions of the Act. It is contended that
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\npetitioner as successor entity had been responsible to reply the notices
\nincluding show-cause notice issued on 4th December, 2019 through
\nITBA system of the department and the notices and orders were
\ndispatched to the concerned assessee on its email id which is registered
\nwith the department for receiving such communications. It had been
\nrealized that the PAN of the entity TSPL had been apparently active in
\nthe database of the department. It is being referred to that petitioner
\nhas appellate forum to approach against the order passed. It is further
\nbeing referred to that jurisdiction over the company TSPL is with the
\nCircle 25(1), Delhi. Thus, it is contended that petitioner is not entitled
\nto any of the relief claimed, as such, petition is liable to be dismissed.
\n12. Learned counsel Mr. Walve for respondents vehemently
\nsubmits that jurisdictional issue would arise in the petition since the
\norder has been passed by the authority at Delhi.
\n13. Mr. J. D. Mistri, learned senior advocate lays particular
\nemphasis on clause (2) of Article 226 of India, which reads as under:
\n\u201c(2) The power conferred by Clause (1) to issue
\ndirections, orders or writs to any Government,
\nauthority or person may also be exercised by any High
\nCourt exercising jurisdiction in relation to the
\nterritories within which the cause of action, wholly or
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\nWP. 950- 2020
\nin part, arises for the exercise of such power,
\n14. He submits that there are lot of decisions throwing light
\non territorial jurisdiction of courts. He refers to the case of Kusum
\nIngots and Alloys Ltd. Vs. Union of India (UOI) and Anr.1 wherein
\nSupreme Court considered that even if a small fraction of cause of
\naction accrues within the territorial jurisdiction of a court, the court is
\ncompetent to entertain writ petition by virtue of clause (2) of Article
\n226 of the Constitution of India. It has been observed that if passing of
\na parliamentary legislation gives rise to civil or evil consequences, a
\ncause for writ petition questioning constitutionality thereof arises and
\ncan be filed in any high court. It is not so, a cause of action arises
\nonly when the provisions of the Act or some of them are implemented
\nwould give rise to civil or evil consequences to the petitioner. The seat
\nof the Parliament or a State Legislature would not be relevant factor
\nfor determining territorial jurisdiction of a high court to entertain a
\npetition. It has been held in the same that the material facts which are
\nimperative for the suitor to allege and prove constitutes the cause of
\naction.
\n1 AIR 2004 SC 2321
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\nnotwithstanding that the seat of such Government or
\nauthority or the residence of such person is not within
\nthose territories.\u201d
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\nWP. 950- 2020
\n15. It has also been referred to in said decision, paragraph 24
\nthereof in using the terms \u2018cause of action\u2019, it has been considered that
\nlitigant who is the dominus litis to have his forum conveniens
\nand
\nlitigant has the right to go to \u2018a Court\u2019 where part of cause of action
\narises.
\n16. Referring to he case of Vodafone India Ltd. & Ors. Vs.The
\nCompetition Commissioner of India & Ors.2, it is contended that it
\nwould not be a case at all jurisdiction to entertain the writ petition. It is
\nbeing submitted that there is no denial to the factual aspects and as a
\nmatter of fact petitioner is being considered responsible being
\nsuccessor company, stationed at Mumbai. It is an entity at Mumbai
\nand it cannot be said it is not afflicted by impugned order in Mumbai.
\nLot of correspondence ensued from Mumbai.Though order is passed in
\nDelhi, it affects a person at Mumbai. As such, cause of action for
\npetitioner has arisen in Mumbai.
\n17. Learned senior counsel also refers to a decision of this
\ncourt dated 7.3.2011 in the case of Wills India Insurance Brokers Pvt.
\nLtd. Vs. Insurance Regulatory and Development Authority3 wherein it
\nhas been observed that part of cause of action has arisen within
\n2 Writ Petition No. 8594 of 2017 with connected matters, dated 21.9.2017
\n3 Writ Petition No. 2468 of 2010
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\nWP. 950- 2020
\nterritorial jurisdiction of this court. Referring to clause (2) of Article
\n226 of the Constitution, the court observed that the petitioner\u2019s
\nregistered office is located at Mumbai, it operates business from
\nMumbai. Since office of respondent No. 1 was located at Hyderabad,
\nrenewal application was required to be preferred at Hyderabad, it
\nwould not be a case that no part of cause of action can be said to have
\narisen within the territorial jurisdiction of the Mumbai court. The case
\nof Navinchandra Majithia Vs. State of Maharashtra4 had also been
\nreferred to wherein it has been held that high court has jurisdiction if
\nany part of the cause arisen within territorial limits of its jurisdiction,
\nthough the seat of government or authority or residence of person
\nagainst whom direction, order or writ is sought to be issued is not
\nwithin the territorial jurisdiction. It was considered that respondent
\nhad been located at Hyderabad where decision is taken in connection
\nwith renewal application, a person who is likely to be affected on the
\nbasis of such decision, can approach the court where he is affected by
\nsuch decision and it cannot be said that no part of cause of action arose
\nwithin territorial jurisdiction of this court.
\n18. Mr. Walve, learned counsel for respondents purports to
\nrefer to and rely upon a decision of this Court in the case of Principal
\n4 (2007) 7 SCC 640
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\nCommissioner of Income-tax, Pune Vs. Sunguard Solutions (I) (P.)
\nLtd.5. It appears that in said case, order by tribunal in Bangalore was
\npassed on 30.7.2015. On 8.9.2015 an order was passed under section
\n127 transferring the assessee\u2019s case from the assessing officer at
\nBangalore to an assessing officer at Pune and the appeal was filed in
\nJanuary, 2006 before this court contending that situs of the assessing
\nofficer would alone determine the high court which would have
\njurisdiction over the orders of the tribunal under section 260A of the
\nAct. At the time of appeal, seat of assessing officer is at Pune
\ntherefore this high court will have jurisdiction. Aforesaid submissions
\nwere opposed by the assessee contending that appeals to high court are
\ngoverned by chapter XX of the Act. Section 260A provides appeals to
\nhigh court from every orders passed in appeal by tribunal. Section 269
\nof the Act, defines the high court of the State. It was contended that
\nsection 127 of the Act deals with the jurisdiction of the authorities and
\nwould not control \/ decide and\/or determine which high court will be
\nthe appellate forum. Perusal of said decision shows that it was
\nobserved that Sections 260A and 269 read together would mean that
\nthe high court referred to in section 260 A will be the high court as
\nprovided\/defined in section 269 i.e. in relation to any State, the High
\nCourt of that State. It would be seen that in aforesaid matter, apart
\n5 (2019) 105 taxmann.com 67 (Bombay)
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\nWP. 950- 2020
\nfrom distinguishable factual position, context had also been different.
\nDecision of the supreme court in the case of Alchemist Limited & Anr.
\nVs. State Bank of Sikkim & Ors.6 is being referred to in support of
\ncontentions that this court would not have jurisdiction. Said case
\nappears to be on different factual background. It appears that appellant
\ncompany had certain negotiations with respondent bank in respect of
\ndisinvestment of equity capital of the bank at place \u2018S\u2019. Appellant was
\nsituated at place \u2018C\u2019. It was contended that while negotiations were
\nheld between appellant and respondent at the place \u2018S\u2019, yet letters of
\nproposal and acceptance and also of rejection were communicated at
\nthe place \u2018C\u2019. Writ petition was filed against the rejection by appellant
\ncompany had been dismissed by the high court at \u2018C\u2019 for want of
\nterritorial jurisdiction and in appeal therefrom, the supreme court had
\nconsidered that it is not a case where essential, integral or material
\nfacts so as to constitute a part of \u2018cause of action\u2019 within tthe meaning
\nof Article 226(2) of the Constitution of India, in the high court at place
\n\u2018C\u2019.
\n19. In the present case, it is seen there is acceptance in reply
\non behalf of respondents that petitioner is a successor company of
\nerstwhile M\/s. Tecnovate Esolutions Pvt. Ltd. and successor has its
\n6 2007 AIR (SC) 1812
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\nWP. 950- 2020
\nregistered office at Mumbai and is stationed at Mumbai carrying in
\nbvusiness. After impugned notice dated 30th March, 2019,
\ncorrespondence from the petitioner\u2019s side ensued from September,
\n2019 onwards has not been disputed. It would not be said to be a case
\nwherein no part of cause of action has arisen for the petitioner where
\npetitioner would to be affected by impugned order, going by decisions
\nreferred to on behalf of petitioner.Having regard to facts and
\ncircumstances and the decisions, relied on, on behalf of the petitioner,
\nit does not appear that resistance to the petition on the ground of
\njurisdiction would carry any efficacy.
\n20. Position emerges that there is no dispute on factual aspect
\nthat TSPL had been amalgamated into M\/s. Intelnet Global Services
\nPvt. Ltd. with effect from 1st April, 2010. As a matter of fact, same has
\nbeen endorsed in the affidavit-in-reply filed on behalf of the
\nrespondents, referring to that petitioner is its ultimate successor.
\nThereafter, said company had also been submitting returns and those
\nwere assessed from time to time in respect of subsequent financial and
\nassessment years. This aspect as well has not been disputed. So is the
\ncase in respect of averments appearing in paragraph 4J. (c) of the
\npetition to the following effect:
\n\u201c(c) The Petitioner submitted that even after merger,
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\nWP. 950- 2020
\nsometimes the payers make payment to the Petitioner,
\nhowever, erroneously continue to mention the PAN of the
\nerstwhile company and not the Petitioner\u2019s company.
\nHowever, the Petitioner in its return of income consider all
\nsuch payments and claim all such deduction. Therefore,
\nthere can be no question of any escaping assessment for
\nthe assessment year 2012-13.\u201d
\n21. During the course of submissions, learned senior counsel
\nMr. Mistri refers to decision of the Supreme Court of India in the case
\nof Principal Commissioner of Income Tax, New Delhi Vs. Maruti
\nSuzuki India Ltd.7 (Maruti Suzuki)
\n22. The Supreme Court in the case of Maruti Suzuki (supra)
\nhad considered that income, which was subject to be charged to tax for
\nthe assessment year 2012-13 was the income of erstwhile entity prior
\nto amalgamation. Transferee had assumed liabilities of transferor
\ncompany, including that of tax. The consequence of approved scheme
\nof amalgamation was that amalgamating company had ceased to exist
\nand on its ceasing to exist, it cannot be regarded as a person against
\nwhom assessment proceeding can be initiated. In said case before
\nnotice under Section 143(2) of the Act was issued on 26.9.2013, the
\nscheme of amalgamation had been approved by the high court with
\neffect from 1.4.2012. It has been observed that assessment order
\n7 (2019) 416 ITR 613 (SC)
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\nWP. 950- 2020
\npassed for the assessment year 2012-13 in the name of non-existing
\nentity is a substantive illegality and would not be procedural violation
\nof Section 292 (b) of the Act.
\nThe Supreme Court in its aforesaid decision, has quoted
\nan extract from its decision in Saraswati Industrial Syndicate Ltd. Vs.
\nCIT8. The Supreme Court has also referred to decision of Delhi high
\ncourt in the case of CIT Vs. Spice Enfotainment Ltd.9and observed that
\nin its decision Delhi high court had held that assessment order passed
\nagainst non-existing company would be void. Such defect cannot be
\ntreated as procedural defect and mere participation of appellant would
\nbe of no effect as there is no estoppel against law. Such a defect cannot
\nbe cured by invoking provisions under section 292B. The Supreme
\nCourt had also taken note of decision in Spice Entertainment (supra)
\nwas followed by Delhi high court in matters, viz. CIT Vs. Dimensions
\nApparels (P.) Ltd.10, CIT Vs. Micron Steels (P) Ltd.11; CIT Vs. Miscra
\nIndia (P). Ltd.12 and in CIT Vs. Intel Technology India Ltd.13 Karnataka
\nhigh court has held, if a statutory notice is issued in the name of nonexisting
\nentity, entire assessment would be nullity in the eye of law. It
\nhas also been so held by Delhi high court in the case of Pr. CIT Vs.
\n8 (1990) 186 ITR 278 (SC)
\n9 (2018) 12 ITR-OL 134 (SC)
\n10 (2015) 370 ITR 288
\n11 (2015) 59 taxmann.com 470\/233 Taxman 120\/372 ITR 386 (Del.) (Mag.)
\n12 (2015) 57 taxmann.com 163\/231 Taxman 809 (Delhi)
\n13 (2016) 380 UTE 272 (Kar.)
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\nWP. 950- 2020
\nNokia Solutions and Network India (P) Ltd.14
\nCIT15
\nfound that there is no reason to interfere with the impugned judgment
\nof Delhi high court and it found no merits in the appeal and special
\nleave petition and were dismissed accordingly.
\nThe Supreme Court had taken note of revenue resistance
\ncontending that contrary position emerges from decision of Delhi high
\ncourt decision in Sky Light Hospitality LLP Vs. Assistant
\nCdommissioner of Income-tax16 and that it had been affirmed by the
\nSupreme Court. However, the Supreme Court had also taken note of
\nSky Light LLP (supra) was in peculiar facts of the case, where the high
\ncourt had catgegorically concluded that there was clerical mistake
\nwithin the meaning of section 292B and the case had been
\ndistinguished by decisions of Delhi, Gujarat and Madras high courts in
\nRajender Kumar Sehgal Vs. ITO17; Chandreshbhai Jayantibhai Patel
\nVs. IOT18; and Alamelu Veerappan Vs. ITO19.
\n24. In the circumstances, though the respondents refer to
\ndecision of Delhi High Court in case of Sky Light Hospitality LLP Vs.
\n14 (2018) 90 taxmann.com 369\/253 Taxman 409\/402 ITR 21 (Delhi)
\n15 (2012) 247 CTR 500 (Delhi)
\n16 (2018) 92 taxmann.com 93 (SC)
\n17 (2019) 10 taxmann.com 233\/260 Taxman 412 (Delhi)
\n18 (2019) 101 taxmann.com 362\/261 Taxman 137 (Guj.)
\n19 (2018) taxmann.com 155\/257Taxman 72 (Mad.)
\n17 \/ 18
\n23. The Supreme Court in Spice Infotainment Ltd. Vs. CIT
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\nWP. 950- 2020
\nAssistant Commissioner of Income Tax, Circle 28(1), New Delhi20 it
\nwould be of little avail for the respondents. The decision in the case of
\nMaruti Suzuki (supra) would hold sway over present facts and
\ncircumstances.
\n25. Foreoing discussion and decisions referred to on behalf of
\npetitioner lead us to consider that petitioner has made out a case for
\nreliefs and it would be appropriate to allow petition in terms of prayer
\nclause (a). Rule is made absolute in terms of prayer clause (a). The
\nwrit petition is disposed of.
\nSd\/- Sd\/-
\n[ABHAY AHUJA, J.] [SUNIL P. DESHMUKH, J.]
\nVinayak Halemath
\n20 (2018)90 taxamann.com 413 (Delhi)
\n18 \/ 18
\nDelhi
\n::: Uploaded on – 09\/04\/2021 ::: Downloaded on – 21\/04\/2021 14:06:43 :::
\nhttps:\/\/itatonline.org<\/p>\n","protected":false},"excerpt":{"rendered":"
The consequence of approved scheme of amalgamation was that amalgamating company had ceased to exist and on its ceasing to exist, it cannot be regarded as a person against whom assessment proceeding can be initiated. In said case before notice under Section 143(2) of the Act was issued on 26.9.2013, the scheme of amalgamation had been approved by the high court with effect from 1.4.2012. It has been observed that assessment order passed for the assessment year 2012-13 in the name of non-existing entity is a substantive illegality and would not be procedural violation of Section 292 (b) of the Act. The Supreme Court in its aforesaid decision, has quoted an extract from its decision in Saraswati Industrial Syndicate Ltd. Vs. CIT8. The Supreme Court has also referred to decision of Delhi high court in the case of CIT Vs. Spice Enfotainment Ltd.9and observed that in its decision Delhi high court had held that assessment order passed against non-existing company would be void. Such defect cannot be treated as procedural defect and mere participation of appellant would be of no effect as there is no estoppel against law. Such a defect cannot be cured by invoking provisions under section 292B<\/p>\n