31.12.2016, for the Assessment Year 2013-14, passed in the name
of a non-existing transferor company/amalgamating company, even
though the assessee had intimated the fact of amalgamation to
the Assessing Officer. It is further contended that the learned
Writ Court had erred in holding that the assessee had not
questioned the exercise taken by the Assessing Officer before
passing the impugned order, nor raised any objection regarding
the jurisdiction. In fact, by letter dated 15.12.2016, the
assessee intimated the respondent about the fact of the merger
and also pointed out that there is a jurisdictional defect and
the notices issued for the Assessment Year 2013-14 were not in
accordance with law. Further more, it was submitted that for the
Assessment Year 2013-14, both the entities were in existence and
the online system of filing of return does not allow two
companies to file return for the same assessment year and
therefore, the return for the assessment year under
consideration was filed in the name of the transferor company.
Further, it is submitted that there is no question of any
misleading the Department as alleged, merely because, the
assessee had filed the return using the PAN of the amalgamating
company and this was done because the online filing of the
return does not permit the assessee to file a separate return in
respect of the income of the transferor company using the PAN of
the transferee company. The seal of approval granted to the
draft assessment order would mean that by consent, jurisdiction
can be conferred on an Assessing Officer to make assessment on a
non-existing company and this would be wholly impermissible in
law. Furthermore, the question of filing a composite return was
not feasible or possible and this observation made by the
learnedSingleBenchwasnottenable.Further,
observation/finding has been recorded by the learned Single
Bench, distinguishing the decision of the Hon'ble Supreme Court
of India in Principal Commissioner of Income Tax vs. Maruti
Suzuki India Ltd. [(2019) 107 taxmann.com 375 (SC)] and the
decision of the High Court of Delhi in Spice Entertainment Ltd.
vs. Commissioner of Service Tax [2012 (280) ELT 43 (Delhi)].
Further, the learned Single Bench ought to have noted that even
in Maruti Suzuki India Ltd. (cited supra), the scheme of
amalgamation provided that all liabilities of the transferor
company shall stand transferred to the transferee company,
however, the Court still quashed the assessment order, since it
was passed in the name of non-existing transferor company.
