TMI Blog2016 (7) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 16.9.2010. When once therefore, a scheme has been sanctioned by the High Court, which would relate back to the appointed date and such order is passed before the order of assessment is passed, it cannot be stated that the assessee should be denied the benefit of such development merely on the ground that during the accounting period and when the return was filed, the High Court order sanctioning the scheme was not yet passed. The very effect of the order of High Court sanctioned the scheme relating back to the appointed date would be that for all purposes including for recognising the benefit of unabsorbed depreciation and losses of a merging Company with those of principal company would be available from such date. What would be the effect of the High Court order being passed after assessment is framed is not necessary for us to enter in the present case.- Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 13457 of 2014 - - - Dated:- 12-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same were duly advertised in the newspapers on 29th April 2009 and no objection to the said petitions was confirmed vide an Additional Affidavit dated 22nd December 2009. Notice of petition was served upon the Central Government and an affidavit dated 11th November 2009 was filed by Regional Director, Western, Ministry of Corporate 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 ₹ 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, and considering the petitions, affidavits, reply to affidavits, and the submissions made by the parties, the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014. Hence the petition. 4. Learned counsel for the petitioner raised the following contentions : 1) During the original assessment, the entire issue was examined by the Assessing Officer. The assessee had given written replies to the queries raised. Only upon being satisfied about the assessee's claim, the Assessing Officer in the order of assessment made no disallowances. Any attempt on part of the Assessing Officer to reopen the issue would be based on change of opinion. 2) The reasons lack validity. According to the Assessing Officer since the scheme of amalgamation was approved by the High Court subsequently, the assessee could not have claimed the benefits during the year under consideration on the premise that the scheme would be sanctioned. Counsel submitted that upon the scheme being approved by the High Court, it would relate back to the appointed date which in the present case was 1.4.2008. The fact that the High Court had approved the scheme was brought to the notice of the Assessing Officer during the original assessment. 5. On the other hand, learned counsel Mrs. Mauna Bhatt for the department submitted that this aspect was not examined by the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 sanctioned by the Hon Guj HC (encl. GUJ.HC order copy and scheme) accordingly the statement of Total Income of the assessee company is duly updated (encl. herewith) with the audited numbers of M/s. Medtek Asia P. Ltd. being assessable in the assessee's hands. 11. It can thus be seen that the during original assessment proceedings this question of claim of depreciation and unabsorbed loss of the amalgamating company upon amalgamation was examined by the Assessing Officer thoroughly. In fact the assessee had made as m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
