TMI Blog2020 (9) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied itself whether the assessee has complied with the conditions laid down in Section 72A(2) of the Act is sine qua non, to enable the assessee to claim the benefit of the set off under Section 72A of the Act. Since, the aforesaid aspect requires factual adjudication, therefore, we deem it appropriate to remit the matter to the Tribunal afresh for adjudication. In view of preceding analysis, it is not necessary to answer the substantial questions of law framed by this court. - I.T.A. NO. 431 OF 2012 - - - Dated:- 18-9-2020 - THE HON'BLE MR. JUSTICE ALOK ARADHE And THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD FOR THE APPELLANTS : Mr. K.V. ARAVIND, ADV FOR THE RESPONDENT : Mr. S. PARTHASARATHI, ADV., A/W Ms. JINEET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal briefly stated are that assessee is in the business of manufacturing ready made garments. The assessee filed the return of income on 31.03.2009 for Assessment Year 2008-09 declaring income as 'NIL' after setting off, of loss of ₹ 31,36,33,145/- in respect of M/s Tulip Apparels Private Limited, the amalgamating company. The Assessing Officer by an order dated 21.12.2010 inter alia did not accept the contention of the assessee that effective date of amalgamation was 31.03.2008. It was further held that amalgamating company got merged with the assessee only after 06.02.2010 i.e., the date on which the scheme of amalgamation was approved. The Assessing Officer therefore, disallowed the claim of set off of loss of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with nor Form No.62 was submitted. It is also urged that as a consequence of amalgamation, revised return ought to have been filed and the only object of amalgamation was to evade payment of tax. It is further submitted that amalgamation of the companies was not for business purposes. It is also submitted that neither the Commissioner of Income Tax (Appeals) nor the Income Tax Appellate Tribunal has considered the issue whether or not the assessee had complied with the requirements of Rule 9C of the Rules, which is a mandatory requirement. In support of aforesaid contention, learned counsel for the revenue has placed reliance on division bench decision of this court in 'COMMISSIONER OF INCOME-TAX, BELGAUM VS. SADASHIVA SUGARS LTD.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions relating to carry forward and set off of accumulated loss and unabsorbed depreciation allowance in amalgamation or demerger, etc. 72A. (1) Where there has been an amalgamation of-- (a ) a company owning an industrial undertaking or a ship or a hotel with another company; or (b ) a banking company referred to in clause (c ) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) 45 with a specified bank; or (c ) one or more public sector company or companies engaged in the business of operation of aircraft with one or more public sector company or companies engaged in similar business, then, notwithstanding anything contained in any other provision of this Act, the accumulated loss and the unabsorbed depreciation of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purpose. (3) In a case where any of the conditions laid down in sub-section (2) are not complied with, the set off of loss or allowance of depreciation made in any previous year in the hands of the amalgamated company shall be deemed to be the income of the amalgamated company chargeable to tax for the year in which such conditions are not complied with. 7. Thus, from perusal of the aforesaid provision, it is axiomatic that in order to claim benefit of set off, of accumulated loss, the amalgamated company has to satisfy the conditions laid down in 71A(2)(a)(b) and (c). It is pertinent to note that Sub-Section (2) starts with a non obstante clause. In other words, it shall have effect notwithstanding other provisions of the Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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