Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2012 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (9) TMI 100 - HC - Income TaxScheme of demerger - objection of Income-tax Department that the Scheme in question is floated with the sole object of avoiding the tax liability such as Income-tax, Stamp Duty, VAT, etc. and that the sole object is only to avoid capital gains tax - assessee contested that it is only the Central Government through Regional Director which is vested with the powers to raise the objections qua the Scheme and the Income-tax Department has no locus to raise such objections - Held that:- If any amount is required to be payable to the Income-tax Department by the transferor company, the Income-tax Department can be said to be a creditor so far as its claim against the transferor company is concerned. Considering the same, it cannot be said that the Income-tax Department has no locus to put forward its objections in this behalf. The segregation of telecommunications services and telecommunications infrastructure business reflects the global trend and has been adopted by telecommunication companies in India without objection. In fact, the Working Group under the Planning Commission has recommended sharing of infrastructure, and the present Scheme reserves flexibility to it for easing such process when required. It may be relevant to note that even the Central Government has not raised any objection to the Scheme and even the Department has not contended that the aforesaid objectives are imaginary. Therefore it cannot be said that the Scheme has no purpose or object and that it is a mere device/subterfuge with the sole intention to evade taxes, particularly when even the incidence of tax purportedly sought to be evaded is not established on facts. Transfer is void for want of consideration - Held that:- On agreeing with the view taken by the Delhi High Court that even if the consideration of one rupee can be said to be a valid consideration and it is not necessary that consideration is always a monetary consideration. In such type of cases wherein the reconstruction involves give and take and mutual/reciprocal promises and obligations, which can be said to be consideration for each other and it cannot be said that there is absolutely no consideration so far as Scheme of Arrangement is concerned. As approval accorded by the equity shareholders, secured and unsecured Creditors of the petitioner and the Regional Director, Western Region to the proposed Scheme of Arrangement, as well as the submissions of the Income Tax Department, sanction is hereby granted to the Scheme of Arrangement under Sections 391 and 394 of the Companies Act, 1956 while protecting the right of the Income Tax Department to recover the dues in accordance with law irrespective of the sanction of the Scheme. However, while sanctioning the Scheme it is observed that said sanction shall not defeat the right of the Income Tax Department to take appropriate recourse for recovering the existing or previous liability of the transferor company and the transferor company is directed not to raise any issue regarding maintainability of such proceedings in respect of assets sought to be transferred under the proposed Scheme and the same shall bind to transferor and transferee company. The pending proceedings against the transferor company shall not be affected in view of the sanction given to the Scheme by this Court as the rights of the Income Tax Department of assessing, levying and collecting tax from the Appellant are not confiscated or expropriated so as to extinguish such rights.
|