Karnataka High Court
M/S Ntt Data Information Processing vs The Joint Commissioner Of on 20 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:11719
WP No. 5451 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.5451 OF 2024 (T-RES)
BETWEEN:
1. M/S. NTT DATA INFORMATION PROCESSING
SERVICES PRIVATE LIMITED
(FORMERLY NTT DATA GLOBAL
DELIVERY SERVICES PVT. LTD.)
HAVING ITS REGISTERED OFFICE AT:
PLOT NO.178, EPIP PHASE -II
WHITEFIELD INDUSTRIAL AREA
BENGALURU-560 066
REPRESENTED BY ITS SENIOR DIRECTOR
MR. SANTHOSH KARAMANGATTIL
(INCORPORATION CERTIFICATE UNDER
THE COMPANIES ACT, 2014)
Digitally
signed by H ...PETITIONER
K HEMA
Location:
High Court (BY SRI T. SURYANARAYANA, SENIOR COUNSEL APPEARING
of Karnataka FOR MS. TANMAYEE RAJKUMAR, ADVOCATE)
AND:
1. THE JOINT COMMISSIONER OF
COMMERCIAL TAXES, (APPEALS)-5
ROOM NO.222, 'B' BLOCK,
2ND FLOOR, BMTC, TTMC
SHANTHI NAGAR,
BENGALURU-560 027.
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NC: 2024:KHC:11719
WP No. 5451 of 2024
2. THE DEPUTY COMMISSIONER OF
COMMERCIAL TAXES (AUDIT)-5.2
DGSTO -5, B-BLOCK, 5TH FLOOR
VTK -2, KORAMANGALA
BENGALURU-560 047.
...RESPONDENTS
(BY SMT. JYOTI M. MARADI, HCGP.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION OF
APPROPRIATE NATURE TO SET ASIDE THE IMPUGNED ORDER
DATED 20.04.2023 IN STA NO.60/2022 OF THE KARNATAKA
APPELLATE TRIBUNAL (ANNEXURE-M) AND ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION OF
APPROPRIATE NATURE TO SET ASIDE THE IMPUGNED ORDER
DATED 24.02.2022 OF THE 1ST RESPONDENT IN CST:AP 45/2020-
21 CAS ORDER NO.348433032 APP (ANNEXURE-K), ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
In this petition, the petitioner seeks for the following reliefs:
"i. Issue a Writ of Certiorari or any other Writ or Order or direction of appropriate nature to setting aside the impugned Order dated 20.04.2023 in STA No.60/2022 of the Karnataka Appellate Tribunal (Annexure-M);
ii. Issue a Writ of Certiorari or any other Writ or Order or direction of appropriate nature to set aside the Impugned Order dated 24.02.2022 of the 1st Respondent in CST: AP 45/2020-21 CAS ORDER No.348433032 APP (Annexure - K);-3-
NC: 2024:KHC:11719 WP No. 5451 of 2024 iii. Issue a Writ of Certiorari or any other Writ or Order or direction of appropriate nature to set aside the Impugned Order in Endorsement No.DCCT/Audit-
5.2/Endorsement/2020-21/574 dated 11.11.2020 passed by the 2nd Respondent (Annexure-J);
iv. Issue a Writ of Certiorari or any other Writ or Order or direction of appropriate nature to set aside the Impugned Assessment Order dated 22.03.2019 in CAS No.339092669 issued by the 2nd Respondent (Annexure - F); v. Issue a Writ of Certiorari or any other Writ or Order or direction of appropriate nature to declare that the Bank Attachment Order in No.DCCT (Audit 5.2)/DGSTO-5/19-20 T.No.1207/19-20 dated 04.12.2019 issued in pursuance to Assessment Order dated 22.03.2019 in CAS No.339092669 by the 2nd Respondent is bad in law (Annexure - E)"
vi. Issue a writ of mandamus or any other writ, order or direction to the Respondents to refund an amount of Rs.3,08,56,605/- along with interest at the rate of 9% calculated from 06.12.2019 till the date of payment."
2. Heard learned Senior Counsel for the petitioner and perused the material on record.
3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner invited my attention to the -4- NC: 2024:KHC:11719 WP No. 5451 of 2024 order dated 08.09.2015 passed by this Court in Company petition No.147/2015 and order dated 03.02.2016 passed by the Delhi High Court in Company petition No.405/2015 under which the transferor Company - NTT DATA Optimal India Delivery Services Private Limited amalgamated and got merged with NTT Data Global Delivery Services Private Limited pursuant to which, the transferee Company - NTT Data Global Delivery Services Private Limited intimated the Commercial Taxes Department vide communication dated 23.08.2016 and requested for cancellation of the KVAT registration of the transferor Company. It is pointed out that in pursuance of the same, the KVAT registration of the transferor Company got de-registered vide Annexure-'D' dated 07.08.2016. It is the grievance of the petitioner that despite the aforesaid facts and circumstance, the transferee Company ie., NTT Data Global Delivery Services Private Limited (presently known as NTT DATA Information Processing Services Private Limited - the petitioner herein), received notice dated 04.12.2019, to which the petitioner, submitted its reply. It is the grievance of the petitioner that despite the aforesaid reply, the second respondent proceeded to pass the impugned re-assessment order dated 22.03.2019 vide Annexure- 'F', which was challenged by the petitioner by filing rectification -5- NC: 2024:KHC:11719 WP No. 5451 of 2024 application on 10.12.2019, which was rejected vide endorsement dated 11.11.2020 at Annexure-'J' to the writ petition. Aggrieved by the same, the petitioner filed an appeal before the first respondent, which came to be dismissed on the ground as barred by limitation vide order dated 24.02.2022 and was confirmed by the Karnataka Appellate Tribunal vide order dated 20.04.2023 in STA No.60/2022 at Annexure-M. It is submitted that upon the transferor Company - NTT DATA Optimal India Delivery Services Private Limited being amalgamated and getting merged with NTT Data Global Delivery Services Private Limited, the transferor Company - NTT DATA Optimal India Delivery Services Private Limited cease to exist any longer and in the light of the judgment of the Apex Court in the case of Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. reported in (2019) 107 taxmann.com 375 (SC), which has been followed by this Court in the case of Coffee Day Resorts (MSM) Pvt. Ltd., v. The Deputy Commissioner of Income-Tax and Another in W.P.No.9594/2023 disposed of on 01.06.2023, the impugned re- assessment order and all further orders pursuant thereto deserves to be set aside.
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NC: 2024:KHC:11719 WP No. 5451 of 2024
4. Per contra, learned High Court Government Pleader appearing for the respondent Nos.1 and 2 submits that there is no merit in the petition and the same is liable to be dismissed.
5. A perusal of the undisputed material on record including the order passed by this Court in Company petition No.147/2015 disposed of on 08.09.2015 and Delhi High Court in Company Petition No.405/2015 disposed of on 03.02.2016 will indicate that the original transferor Company - NTT DATA Optimal India Delivery Services Private Limited stood amalgamated and merged with the transferee/petitioner - Company. The material on record also establishs that the KVAT registration of the transferor Company - NTT DATA Optimal India Delivery Services Private Limited got de-registered and consequently, upon amalgamation of the transferor-Company with the transferee/petitioner - Company, the original transferor-Company ceased to exist any longer and consequently, in the light of the judgment of the Apex Court in the case of Principal Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Ltd. reported in (2019) 107 taxmann.com 375 (SC), which has been followed by this Court in the case of Coffee Day Resorts (MSM) Pvt. Ltd., v. The Deputy -7- NC: 2024:KHC:11719 WP No. 5451 of 2024 Commissioner of Income-Tax and Another in W.P.No.9594/2023 dated 01.06.2023, the impugned re- assessment order dated 22.03.2019 and all further proceedings pursuant thereto deserve to be quashed and the tax paid by the petitioner deserves to be refunded back to the petitioner.
6. In the result, I pass the following:
ORDER i. The petition is hereby allowed.
ii. The notice dated 04.12.2019 vide Annexure-'E', the impugned assessment order dated 22.03.2019 vide Annexure-'F', impugned Endorsement dated 11.11.2020 vide Annexure-'J', impugned order dated 24.02.2022 vide Annexure-'K' and impugned order dated 20.04.2023 in STA No.60/2022 vide Annexure-'M' are hereby quashed.
iii. Respondents are directed to refund the tax of Rs.3,08,56,605/- together with applicable interest from the date of recovery i.e., 06.12.2019 back to the -8- NC: 2024:KHC:11719 WP No. 5451 of 2024 petitioner within a period of three months from the date of receipt of a certified copy of this order. iv. Pending interlocutory applications, if any, stand disposed of.
Sd/-
JUDGE VMB List No.: 1 Sl No.: 27