Gujarat High Court
Gauriputra Estate Holders Private ... vs Union Of India on 15 February, 2022
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17039/2021 ORDER DATED: 15/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17039 of 2021
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GAURIPUTRA ESTATE HOLDERS PRIVATE LIMITED
Versus
UNION OF INDIA
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Appearance:
MS NUPUR D SHAH(10233) for the Petitioner(s) No. 1
MR MR BHATT SENIOR COUNSEL WITH MR KARAN SANGHANI,
ADVOCATE for the Respondents Nos1,2
MS MAITHILI D MEHTA(3206) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 15/02/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"a) The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order, direction or command in the nature of writ of mandamus holding and declaring that the impugned notices issued in the name of non-existent entity namely Shivganga Property Holders Private Limited are prima facie illegal and bad in law.
b) The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order, direction or command in the nature of writ of mandamus holding and declaring that the Notification No.20/2021 dated 31.03.2021 and Notification No.38/2021 dated 27.04.2021 are ultra vires the Income Tax Act, 1961 and the Finance Act, 2021 and that the resultant Sections 147, 148, 149, 150 and 151 are ex-facie illegal as two parallel provisions cannot be applicable simultaneously under the same statute when the Finance Act has specifically amended the provisions of Section 148 and made it applicable from 01.04.2021.Page 1 of 4 Downloaded on : Sat Feb 19 20:31:55 IST 2022
C/SCA/17039/2021 ORDER DATED: 15/02/2022
c) That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned notices both dated 20.04.2021 issued u/s. 148 of the Income Tax Act for A.Y. 2013-14 and A.Y. 2014-15 by the respondent No.2 (Annexure-D).
d) That pending the hearing and final disposal of the petition, the Hon'ble Court be pleased to stay the impugned notices dated 20.04.2021 issued u/s. 148 of the Income Tax Act for A.Y. 2013-14 and A.Y. 2014-15 by the respondent No.2 (Annexure-D) and to restrain the respondent No.2 from acting in furtherance thereof;
e) for ad interim relief in terms of para 8(a), (b), (c) and (d) hereinabove;
f) Award the cost of this petition.
g) Grant such other and further reliefs as this Hon'ble Court deems fit."
2 We need not delve much into the facts giving rise to this litigation as this writ application can be allowed on a short legal ground.
3 The subject matter of challenge in the present writ application is to the notice issued under Section 148 of the Income Tax Act, 1961 dated 20th April 2021 for the assessment year 2013-14 calling upon the noticee namely Shivganga Property Holders Private Limited to show cause as to why the assessment for the year 2013-14 should not be reopened under Section 147 of the Act. One another notice has also been issued dated 20th April 2021 for the assessment year 2014-15.
4 The principal argument of Ms. Nupur Shah, the learned counsel appearing for the writ applicant is that both the impugned notices referred to above could be said to be without jurisdiction as those have been issued in a wrong name or rather to an assessee which was not in existence on the date of the issue of the notices. Ms. Shah invited the attention of this Court to page : 57 of the paper book. Page : 57 is a letter dated 17th January 2019 addressed by the Shivganga Property Page 2 of 4 Downloaded on : Sat Feb 19 20:31:55 IST 2022 C/SCA/17039/2021 ORDER DATED: 15/02/2022 Holders Private Limited to the jurisdictional Assessing Officer informing about the merger / amalgamation of Shivganga Property Holders Private Limited with the M/s. Gauriputra Estate Holders Private Limited i.e. the writ applicant. The letter reads thus:
"Dated : 17/01/2019 To, The Income Tax Officer, Ward No.4(1)(3) Ahmedabad Ref: SHIVGANGA PROPERTY HOLDERS PRIVATE LIMITED PAN : AAICS44050 TAN:AHMS11977A CIN:U45200GJ2005PTC047139 Sub : INTIMATION FOR THE MERGER / AMALGAMATION OF THE COMPANY IN TERMS OF SECTION 233 OF THE COMPANIES ACT, 2013 AND REQUEST FOR SURRENDER OF PAN AND TAN OF THE COMPANY Dear Sir, Kindly note that pursuant to Section 233 of the Companies Act, 2013, our Company together with other Transferor Companies as per list attached herewith in Annexure 1 has been amalgamated with M/s.Gauriputra Estate Holders Private Limited ("the Transferee Company")w.ef 01 April, 2018 being the appointed date as mentioned in the Scheme and the confirmation order Ref: RD (NWR)/233/ (15)/2018/2868 dated 11.09.2018 of the Hon'ble Regional Director, North Western Regional, Ahmedabad, Gujarat. In terms of the said order and final approved scheme our Company being one of the Transferor Company merged with the Transferee Company w.e.f 01st April, 2018 and also shall be stand dissolved without any further acts or deeds.
With respect to above, please find attached herewith as under:
1) Copy of Order for Amalgamation.
2) Copy of duly approved Scheme of Amalgamation.
Accordingly, kindly note that we will be also making necessary applications for surrender of Permanent Account Number (PAN) and Page 3 of 4 Downloaded on : Sat Feb 19 20:31:55 IST 2022 C/SCA/17039/2021 ORDER DATED: 15/02/2022 Tax Deduction Number (TAN) of the Company.
You are requested to kindly take on your records above development and transfer your records in favour of M/s. Gauriputra Estate Holders Private Limited having PAN: AACCG4800Hand jurisdiction with the Income Tax Department is Ward No. 2(1)(1)Ahmedabad.
Kindly acknowledge the copy of this letter and request to do the needful."
5 Ms. Shah further invited the attention of this Court to the two letters of even date 23rd July 2021 addressed to the jurisdictional Assessing Officer by the Director of the erstwhile Shivganga Property Holders Private Limited bringing it to his notice that the impugned notice could not have been issued.
6 Mr. M. R. Bhatt, the learned Senior Counsel assisted by Mr. Karan Sanghani, the learned advocate appearing for the Revenue, with his usual fairness, submitted that in view of the intimation as regards the merger / amalgamation way back on 17th January 2019, the two impugned notices could not have been issued.
7 In view of the aforesaid, this writ application succeeds and is hereby allowed. Both the impugned notices for the relevant assessment years issued under Section 148 of the Act are hereby ordered to be quashed. All consequential proceedings pursuant to the said notices also stand terminated. All other reliefs prayed for would pale into insignificance.
(J. B. PARDIWALA, J) (NISHA M. THAKORE,J) CHANDRESH Page 4 of 4 Downloaded on : Sat Feb 19 20:31:55 IST 2022