9911796707
TMI Blog2016 (7) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-2010, petitioner has filed return of income declaring total income of Rs. 96.42 lacs. Such return was taken in scrutiny by the Assessing Officer. One of the issues examined was of the business loss and depreciation of one Medtel Asia Private Ltd claimed by the assessee since the said company had amalgamated with the assessee company. The Assessing Officer framed scrutiny assessment under section 143(3) of the Income Tax Act ("the Act" for short) on 5.12.2011 without making any disallowance of such claim of depreciation and business loss. To reopen such scrutiny assessment, the Assessing Officer issued the said notice in which he recorded the following reasons : "...On verification, it is revealed that the assessee company wrongly claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Affairs making some observation on the financial statements of both the Companies and upon receipt of the compliance of the petitioner, the Regional Director filed further affidavit on 09.06.2010 observing that the 'sundry creditors' of the transferor company rose from 139.52 lacs to Rs. 173.28 lacs though no purchases were shown in the P & L Account as on 31.03.2009 and that the transferor company had not given any justification/ clarification in spite of the fact that the Registrar of Companies, Gujarat had called for clarification from the Company vide his letter dated 11.05.2010. The Company filed their submission. After hearing the learned advocate for the petitioner Companies and Assistant Solicitor General for the Central Govt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the benefits of amalgamation before receiving the approval of the High Court, was liable to be rejected. In fact, the amalgamated Company has. finalised their accounts for the F.Y. 2008-09 without incorporating the assets and liabilities of the amalgamating Company. Both these companies had finalised their accounts separately. The irregular set off above losses amounting to Rs. 2,38,23,768/- is required to be disallowed. In view of the above facts, it is clear that the assessee company has claimed irregular business losses. Accordingly, I have reason to believe that income to the tune of Rs. 2,38,23, 768/- chargeable to tax has not been assessed. In view of above, I have reason to believe that income to the tune of Rs. 2,38,23,678/- has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised a wrong claim. Since the claim was sanctioned by the High Court only on 12.10.2010, the claim therefore did not arise during the year under consideration. In any case, the scheme would be effective only upon it being sanctioned as per the scheme itself and that therefore, cannot be made effective from the appointed date. 6. We may notice that in the returns filed, the assessee had put a following note : "The assessee company has prescribed a scheme of amalgamation with H'ble Guj High Court u/s. 391394 of Cos. Act, for merger wef 1408 of Medtek Asia Pvt. Ltd. in respect of this necessary formalities as directed by the H'ble Guj Hon'ble Court have been complied with and the final sanction of the amalgamation by H' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. the said company's amalgamation into the assessee company wef. 142008, is subsequently sanctioned by the Hon. Guj. HC accordingly the statement of total Income of the assessee company is duly updated with the audited numbers of M/s. Medtek Asia P. Ltd. being assessable in the assessee's hands. (kindly refer our previous submission)." 10. In yet another letter dated 16.9.2010, the assessee had conveyed to the Assessing Officer as under : "The assessee company has Vide the Return of Income filed the subject ereturn and declared the fact of amalgamation of M/s. Medtek Asia P. Ltd. into the assessee company wef 1.4.2008. As regards Medtek Asia P. Ltd, the said company's amalgamation into the assessee company wef. 142008, is now sanctione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the moment the scheme was sanctioned as per the decision of Supreme Court in case of Marshall Sons and Co. (India) Ltd.(supra), it would relate back to the appointed date as envisaged under the scheme unless ofcourse the High Court shifts such date while approving the scheme. The objections raised by the counsel for the Revenue that the scheme itself envisaged its effect from a different date is neither borne out from the record nor is part of the objections raised by the Assessing Officer in the reasons recorded. Reference to the effective date being later of the dates, when final sanction is granted, would not alter the appointed date of 1.4.2008. In fact, the Assessing Officer's main objection was that during the accounting peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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