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2020 (2) TMI 1256 - CESTAT BANGALORERefund of service tax - merger arrangement / scheme of amalgamation - who is eligible to claim refund - merged company or amalgamated / resulted company - effective date of amalgamation / merger - HELD THAT:- The appellant is engaged in the business of health care services and the another company M/s. Manipal Health System Private Limited is also involved in the business of establishing, promoting or otherwise carrying on the business of running of nursing homes and hospitals. In the normal course of business, appellant availed taxable services from MHSPL on which service tax was paid up to March 2016. Thereafter both the companies entering into the Scheme of Arrangement approved by their respective Board and thereafter filed a petitions before the Hon’ble High Court and the Hon’ble High Court of Karnataka vide their order dated 04.12.2015 approved the Scheme of Arrangement without making any such changes to the appointed date specified therein. The perusal of the various clauses of the Scheme of Arrangement clearly shows that all the present assets or receivables of the demerged undertaking on or after the appointed date shall be the assets and receivables of the resultant company and the treatment of the taxes, levies, cess etc., paid by the demerged company with regard to the demerged undertaking shall, after appointed date but prior to the effective date i.e., 11.03.2016 be treated and deemed as the tax paid by the resultant company - Further, the conduct of the business with effect from the appointed date until the effective date by demerged company will be in trust for the resultant company. The Hon’ble Apex Court has observed in the case of MARSHALL SONS AND COMPANY (INDIA) LIMITED VERSUS INCOME-TAX OFFICER [1996 (11) TMI 6 - SUPREME COURT] that it is the date of Amalgamation as presented in the scheme which has to be taken as “the transfer date” in as much as the Courts approval may be given later. Further the Hon’ble Supreme Court has observed that the scheme of amalgamation would not take effect from the date of order sanctioning the scheme but would laid back to the transfer date as presented in the amalgamation scheme. The business carried out by the subsidiary company shall be deemed to have been carried on the business and for and on behalf of the transferee company as such by taking into account the other facts and circumstances of the case, the Court observed that subsequent to the sanction of the scheme, formalities of filling the certified copies of the order before the Registrar of the company, allotment of shares etc may take some time but the date of amalgamation would be the date as presented in the scheme. Appeal allowed - decided in favor of appellant.
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