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. 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 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 68-73) Amalgamation was also intimated by filing an objection against reasons on 06.01.2022 (Page 112-117) and 22.02.2022 (Page 118-119) 4. The above details clearly indicate that the impugned show-cause notices have been issued by the respondent after the amalgamation has taken place pursuant to the order passed by this Court in case of each petitioner. 5.1. Learned advocate Mr. Darshan Gandhi for the petitioners submitted that the law is well settled as to the effect that upon the issuance of notices for re-assessment on the non-existing companies after the amalgamation is given effect to, such notices would be without jurisdiction and are liable to be quashed and set aside. 5.2. In support of his submissions, reliance is placed on the decisions of the Hon’ble Supreme Court in cases of Deputy Commissioner of Income Tax vs. Sterlite Technologies Ltd. (2004) 158 taxmann.com 242 (SC) and Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki India Limited, (2019) 107 taxmann.com 375 (SC) as well as decisions of this Court in cases of Anokhi Realty Private Limited vs. Income Tax Officer rendered in Special Civil Application No. 17613 of 2021, Kunvarji Fincorp Private Limited vs. Deputy Commissioner of Income Tax, Ahmedabad & Others rendered in Special Civil Application No. 903 of 2022 and other allied matters and Adani Wilmar Limited vs. DCIT, (2017) 99 CCH 175 (Guj). 6.1. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the petitioner in Special Civil Application No. 5165 of 2022 pursuant to the notice under Section 148 of the Act has filed the return of income and thereafter sought the reasons recorded for issuance of the notice. It was therefore submitted that the petitioner has already participated in the re-assessment proceedings by filing the return and therefore, now cannot raise the grievance with regard to the issuance of the notice against the nonexisting company and the re-assessment order shall be passed by the Assessing Officer in the name of the petitioner. 6.2. It was further submitted that merely the name of the erstwhile company which was existing prior to the date of amalgamation cannot make the notice issued under Section 148 of the Act as invalid. 6.3. 6.2. It was further submitted that merely the name of the erstwhile company which was existing prior to the date of amalgamation cannot make the notice issued under Section 148 of the Act as invalid. 6.3. In support of his submissions, reliance was placed on the decision of the Hon’ble Supreme Court in case of Principal Commissioner of Income Tax vs. Mahagun Realtors (P) Ltd. (2022) 137 taxmann.com 91 (SC) wherein, the Hon’ble Supreme Court has held that since the conduct of the assessee, commencing from the date of search and before all forums reflected that it consistently held itself as assessee, Assessment order passed in name of assessee was valid and corporate death of an entity upon amalgamation per se would not invalidate the order passed in name of the amalgamating company on a bare application of Section 481 of the Companies Act, 1956 but would depend on the terms of the amalgamation and the facts of each case. 6.4. It was therefore submitted that in the facts of the case when the petitioner of Special Civil Application No. 5165 of 2022 has filed the return of income pursuant to the notice for re-assessment, the conduct of the assessee itself would show that the assessee has participated in the proceedings and therefore, in view of the above mentioned decision of the Hon’ble Supreme Court, the impugned notice cannot be held to be without jurisdiction. 7. Considering the facts of the case and in view of the settled legal position, it is not in dispute that while passing the amalgumation order, the High Court had provided an opportunity of raising the objections by the Income Tax Department and in absence of any objection, the amalgamation order was passed. The Hon’ble Supreme Court in case of Maruti Suzuki India Limited (Supra) has held as under: “31. Mr. Zoheb Hossain, learned Counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. The Hon’ble Supreme Court in case of Maruti Suzuki India Limited (Supra) has held as under: “31. Mr. Zoheb Hossain, learned Counsel appearing on behalf of the Revenue urged during the course of his submissions that the notice that was in issue in Skylight Hospitality Pvt. Ltd. was under Sections 147 and 148. Hence, he urged that despite the fact that the notice is of a jurisdictional nature for reopening an assessment, this Court did not find any infirmity in the decision of the Delhi High Court holding that the issuance of a notice to an erstwhile private limited company which had since been dissolved was only a mistake curable under Section 292B. A close reading of the order of this Court dated 6 April 2018, however indicates that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the Special Leave Petition this Court observed that it was the peculiar facts of the case which led the court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict between the decisions in Spice Enfotainment (supra) on the one hand and Skylight Hospitality LLP (supra) on the other hand. It is of relevance to refer to Section 292B of the Income Tax Act which reads as follows: “292B. Thus, there is no conflict between the decisions in Spice Enfotainment (supra) on the one hand and Skylight Hospitality LLP (supra) on the other hand. It is of relevance to refer to Section 292B of the Income Tax Act which reads as follows: “292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.” In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B. In this context, it is necessary to advert to the provisions of Section 170 which deal with succession to business otherwise than on death. Section 170 provides as follows: “170. (1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession: (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession. (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assessed on the predecessor, cannot be recovered from him, the [Assessing] Officer shall record a finding to that effect and the sum payable by the predecessor shall thereafter be payable by and recoverable from the successor and the successor shall be entitled to recover from the predecessor any sum so paid. (4) Where any business or profession carried on by a Hindu undivided family is succeeded to, and simultaneously with the succession or after the succession there has been a partition of the joint family property between the members or groups of members, the tax due in respect of the income of the business or profession succeeded to, up to the date of succession, shall be assessed and recovered in the manner provided in section 171, but without prejudice to the provisions of this section. Explanation - For the purposes of this section, “income” includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession.” Now, in the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment. 32. On behalf of the Revenue, reliance has been placed on the decision of this Court in CIT vs. Jai Prakash Singh, (1996) 85 Taxman 407 /219 ITR 737. That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v. CIT, (1947) 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v. CIT, (1943) 11 ITR 202 (Bom.) (“Maharaja of Patiala”). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as “His Highness...late Maharaja of Patiala.” The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh (supra) held that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where the liability is created by a distinct substantive provision. The omission or defect may render the order irregular but not void or illegal. Jai Prakash Singh (supra) and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh (supra) involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala (supra) was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment (supra) on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment (supra).” 8. In view of the above dictum of law and considering the facts of the present case, more particularly, when the Assessment Order is already passed in the case of the petitioners for the year under consideration in the name of the asseseees, the Department was in knowledge of the amalgamation which had taken place in each case. Therefore, the impugned notices are not tenable as the same would be without jurisdiction as having been issued against the non-existing companies. 9. In view of the foregoing reasons, the petitions succeed and are accordingly allowed. The impugned notices issued under Section 148 of the Act are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No orders as to cost.