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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, D.N. RAY, JJ.
OLYMPIC DECOR LLP – Petitioner
Versus
DEPUTY COMMISSIONER OF INCOME TAX, GANDHINAGAR – Respondent
Special Civil Application Nos. 5165, 5167, 5210, 5229, 5263, 5276 of 2022
Decided On : 17-10-2024
JUDGMENT :
BHARGAV D. KARIA, J.
1. Heard learned advocate Mr. Darshan Gandhi for the petitioners and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent.
1.1 Rule, returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule for and on behalf of the respondent.
2. By these petitions under Article 226 of the Constitution of India, the petitioners have challenged the issuance of Notices under Section 148 of the Income Tax Act, 1961 (for short ‘the Act’) mainly on the ground that the notices have been issued against non-existing companies/assessees.
3. The details pertaining to each of the petitions are summarised in tabular form as under:
| S. No. | SCA & A.Y. | Petitioner/New Entity | N.E. Entity and 148 Notice | Fact on Amalgamation | Remarks |
| 1 | 5165 of 2022 (AY 2016-17) | Olympic Decor LLP (ODLLP) | Notice Dated 27.03.2021 on Olympic Laminates Private Limited (OLPL) Page 75 | OLPL merged into Sara Suppliers Private Limited on 06.01.2015 vide HC Order (Page 16-29) | HC issued notice to IT department inviting objections against the amalgamation on 06.01.2015 (Page 16-29) and 02.11.2015 (Page 130-131) |
| Sara Suppliers Private Limited Converted into LLP on 16.03.2016 (Page 71) | 143(3) done on new entity - ODLLP on 28.03.2018 (Page 132) | ||||
| Sara Suppliers Changed the name into Olympic Decor LLP on 28.03.2016 (Page 72) | Amalgamation was also intimated by filing an objection against reasons on 29.03.2021 (Page 86-93) and 21.02.2022 (Page 94-100) | ||||
| 2 | 5276 of 2022 (AY 2017-18) | Olympic Decor LLP (ODLLP) | Notice Dated 27.03.2021 on Olympic Laminates Private Limited (OLPL) Page 73 | OLPL merged into Sara Suppliers Private Limited on 06.01.2015 vide HC Order (Page 15-28) | HC issued notice to IT department inviting objections against the amalgamation on 06.01.2015 (Page 16-29) and 02.11.2015 (Page 130- 131) |
| Sara Suppliers Private Limited Converted into LLP on 16.03.2016 (Page 70) | 143(3) done on new entity - ODLLP on 28.03.2018 (Page 132) | ||||
| Sara Suppliers Changed the name into Olympic Decor LLP on 28.03.2016 (Page 71) | Amalgamation was also intimated by filing an objection against reasons on 29.03.2021 (Page 86-93) and 21.02.2022 (Page 94-100) | ||||
| 3 | 5263 of 2022 (AY 2013-14) | Khandwala Finstock Private Limited (KFPL) | Notice Dated 29.03.2021 on Khandwala Enterprise Private Limited (KEPL) Page No. 49 | KEPL merged into KFPL on 24.06.2019 vide NCLT Order (Page 17- 23) | NCLT issued notice u/s 230 (5) COM Act 2013 to IT department inviting objections against the amalgamation on 02.07.2018 (Page 96-97) |
| Amalgamation was also intimated by filing an objection against reasons on 15.01.2022 (Page 55-63) | |||||
| 4
| 5210 of 2022 | Khandwala Finstock Private Limited (KFPL) | Notice Dated 30.03.2021 on Khandwala Enterprise Private Limited (KEPL) Page No. 49 | KEPL merged into KFPL on 24.06.2019 vide NCLT Order (Page 17-23) | NCLT issued notice u/s 230 (5) COM Act 2013 to IT department inviting objections against the amalgamation on 02.07.2018 (Page 96-97) |
| Amalgamation was also intimated by filing an objection against reasons on 15.01.2022 (Page 55-63) | |||||
| 5 | 5229 of 2022 | Khandwala Finstock Private Limited (KFPL) | Notice Dated 30.03.2021 on Mink Tradecom Private Limited (MTPL) Page 99 | MTPL merged into KEPL on 26.10.2018 vide NCLT Order (Page 18-33) | NCLT issued notice u/s 230 (5) COM Act 2013 to IT department inviting objections against the amalgamation on 02.07.2018 (Page 147-148) |
| KEPL merged into KFPL on 24.06.2019 vide NCLT Order (Page 67-73) | Amalgamation was also intimated by filing an objection against reasons on 06.01.2022 (Page 112-117) and 22.02.2022 (Page 118-119) | ||||
| 6 | 5167 of 2022 | Khand | |||
Notices issued under Section 148 of the Income Tax Act against non-existing companies post-amalgamation are invalid and without jurisdiction.
Notices under Section 148 of the Income Tax Act cannot be issued to a non-existent entity following an amalgamation, as such actions lack legal jurisdiction.
An assessment notice issued against a non-existing entity post-amalgamation is void ab initio, reinforcing the principle that an amalgamated company ceases to exist legally.
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Issuing a notice under Section 148 of the Income Tax Act to a non-existent entity post-merger constitutes a substantive illegality and cannot be rectified as a mere procedural error.
The impugned notice issued under section 148 of the Income Tax Act, 1961, in the name of a non-existing company due to amalgamation is not tenable in the eye of law, and the court has the authority t....
The central legal point established in the judgment is that the notice issued in the name of a non-existent entity is bad in law, and human errors under Section 292B cannot nullify proceedings that a....
Income Tax -Scheme of amalgamation - in case the assessment orders are framed in the name of a non-existent company it does not mean a procedural irregularity of the nature which could be cured by in....
The assessment framed by the Assessing Officer on a non-existent company is a nullity in the eyes of law and void, and the provisions of section 292B cannot rescue the department.
Proceedings against a dissolved company are void and cannot be sustained under the Central Goods and Services Tax Act.
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