TMI Blog2013 (1) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... tence as on 1-4-1994 and there is no income attributable to this company after this date, but industrial dealing part of the assessee company and its profits and gains are to be examined and brought to tax only in the hands of the respondent-assessee company and therefore the assessee while can claim benefit of Section 80-1 , if otherwise eligible, unless it is hit by non-fulfilment of any of the requirement in terms of sub-section (2) of Section 80-I. The amalgamation does not come within the scope of 'transfer' as defined in Section 2(47) and such being the view taken not only by this court, but Madras High Court and also the Supreme Court, there is no question of holding that the assessee dis entitles the benefit of Section 80-I - in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s court and which was approved by this court as per order dated 8-8-1995. There is no dispute about this factum. In its return for the accounting period relating to assessment year 1995-96, the assessee company claimed the benefit of the provisions of Section 80-I of the Act in respect of a sum of Rs. 21,90,823/- on the premise that this was the profit earned by the industrial undertaking which was hitherto being run by the amalgamating company namely M/s AA Alloys Ltd., which activity has been carried on by the assessee company on and after 1-4-1994 etc. 4. The assessing officer was of the opinion that the claim of the assessee company as had been admitted earlier was not correct and therefore reopened the assessment for the year concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power: Provided that the condition in clause (i) shall not apply in respect of any industrial undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such industrial undertaking as is referred to in Section 33-B, in the circumstances and within the period specified in that section: Provided further that the condition in clause (iii) shall, in relation to a small-scale industrial undertaking, apply as if the words "not being any article or thing specified in the list in the Eleventh Schedule" h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 80HHA. While the assessing officer was of the view that it is a case of transfer of machinery to a new business, it was claim of the assessee that it was not a transfer but it was a case of amalgamation of earlier company with the assessee company and therefore not bit by the provisions of sub-section (2) of Section 80-I of the Act. 5. The assessment was finalized on such premise. The assessee company appealed on this aspect to the commissioner of income tax (appeals) and met with success, as the appellate commissioner was of the view that amalgamation of a company does not come within the scope of sub-section 47 of Section 2, in the definition section of the Act, defining 'transfer' and therefore allowed the appeal on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions, Sri Kamaladhar has placed reliance on the decision of the Supreme Court in the case of SARASWATI INDUSTRIAL SYNDICATE LTD vs COMMISSIONER OF INCOME TAX [(1990) 186 ITR 278]. 10. However, learned standing counsel also brought to our notice and fairly submits that the Madras High Court in the case of COMMISSIONER OF INCOME TAX vs SILICAL METALLURGIC LTD [(2010) 324 ITR 29] has taken a view that amalgamation is not transfer within the meaning of Section 2(47) of the Act while it was examining the claim of an assessee relating to the benefits under Sections 80HH and 80-I of the Act. 11. On the other hand, learned counsel for respondent-assessee has submitted that amalgamation does not amount to transfer and such is the consistent vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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