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TMI Blog2012 (11) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(Appeals) was not justified in allowing the assessee to set off of loss of amalgamating company (M/s. Tulip Apparels) with the profits of the appellant amalgamated company, without appreciating the facts and circumstances under which the same was disallowed by the Assessing Officer. 3. The learned CIT(Appeals) erred in allowing the relief without appreciating that the amalgamating company (M/s. Tulip Apparels) had already filed its return of income on 29.9.2008 for AY 2008-09 and that petition before the Hon'ble High Court for approval of merger was also after the due date for filing the return of income for the concerned Assessment Year by the assessee (amalgamated) company. 4. The learned CIT(A) erred in allowing the relief without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee informed the BSE as well as NSE regarding the proposed merger of TAPL with the assessee. A scheme of amalgamation of TAPL with the assessee was formulated, as per the said scheme with effect from the appointed day which was fixed in the scheme as 31.03.2008, TAPL will cease to be an entity and all the assets & liabilities of TAPL shall vest with the assessee. TAPL will stand dissolved without winding up. Between the appointed day till the date on which the scheme finally takes effect i.e., the effective date, the business which is carried on by TAPL shall be deemed to have been carried on for and on behalf of assessee and in trust for the assessee. Since the scheme of amalgamation required the sanction of the Hon'ble High court of Karn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer examined the aforesaid claim of the assessee, he was of the view that the process of amalgamation has been used as a tool to wipe off the profits of a profit making entity against the loss of another entity. Thereafter, the AO proceeded to make the following observations:- (a) The appointed date as per the scheme of amalgamation was 31.03.2008 and the Board of Directors of the transferee company viz., the assessee, approved the same only in their meeting held on 31.01.2009. Therefore the appointed day was arbitrarily fixed as 31.03.2008. (b) The assessee failed to prove that during the assessment year 2008-09 or earlier to that date, the assessee and TAPL negotiated for amalgamation. (c) TAPL existed as a company with the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of TAPL had to be adjusted against the income of the assessee company, both under normal computation of income as well computation u/s. 115JB of the Act. The assessee also pointed out that by virtue of the provisions of section 72A of the Act, the assessee was entitled to the claim of set off. The assessee also highlighted that it was not possible for the AO to question the scheme of amalgamation, which has been duly sanctioned by the Hon'ble High Court. The steps taken by the assessee for the amalgamation were also highlighted. The assessee also pointed out that even though the court's sanction in a scheme of amalgamation comes at a later point of time, but the scheme of amalgamation takes effect from the effective date, unless the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application in C.A. No.169/2009 whence this court by order dated 06.04.2009 directed the convening and holding of the meetings of its shareholders and creditors, both secured and unsecured. By another application in C.A. No.224/2009, this court order dated 25.05.2009 permitted the change in chairman of the said meeting.' 10. Aggrieved by the order of the CIT(Appeals), the revenue has preferred the present appeal before the Tribunal. 11. The ld. DR reiterated the stand of the Assessing Officer as reflected in the order of assessment, while the ld. counsel for the assessee reiterated the stand of the assessee as put forth before the CIT(Appeals). 12. We have considered the rival submissions. The Hon'ble Supreme Court in the case of Marsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is that the amalgamation takes effect from the appointed date as mentioned in the scheme of amalgamation which was duly sanctioned by the Hon'ble High Court without any change. The scheme also envisages that between the appointed day till the date on which the scheme finally takes effect i.e., the effective date, the business which is carried on by TAPL shall be deemed to have been carried on for and on behalf of assessee and in trust for the assessee. Therefore the amalgamation takes effect from 1.3.2008. As a naturally corollary, all losses of amalgamating company will be deemed to be the loss of the amalgamating company. In view of the aforesaid decision of the Hon'ble Supreme Court, we are of the view that the AO exceeded his j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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