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TMI Blog2022 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... m/2018 and cross objection in C.O. No. 227/Mum/2019 for A.Y.2011-12 arise out of the order by the Ld. Commissioner of Income-tax-20, Mumbai dated 07/06/2018 (ld.CIT(A) in short) against the order of assessment order passed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 29/12/2016 by the ld. Asst. Commissioner of Income Tax-12(2)(2), Mumbai (hereinafter referred to as ld. AO). ITA No. 6473/Mum/2018 - Revenue Appeal - Asst Year 2011-12 2. The only effective issue to be decided in the appeal of the Revenue is as to whether the Ld.CIT(A) was justified in allowing the claim of long term capital loss of Rs.2,85,61,088/- on sale of 6,44,285 equity shares of M/s Sparsh BPO Services Pvt Ltd, in the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10.11.2016. Thereafter the Intelnet Global Services Pvt Ltd. filed another letter dated 08.12.2016 raising fresh objections to the reopening u/s 148 of the Act. Eventually, the Ld. AO passed an order u/s 143(3) r.w.s. 147 of the Act determining the total income of the assessee at Rs.3,09,659/-. 6. We find that assessee is engaged in the business of IT & IT enabled services. The Ld.AO observed that assessee on 30/7/2010 sold 6,44,285 equity shares in M/s Sparsh BPO Services Pvt Ltd for Rs.12,88,57,000/-. These shares were purchased by the assessee on 7/7/2008 for Rs.12,88,57,000/-. The Ld.AO observed that as on the date of sale of these shares, the assessee (SKR BPO) was very much in existence and the assessee, namely, SKR BPO, got ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(D) 711 Indexed cost of (E) 15,74,18,088 Long term Capital Loss (A-E) (2,85,61,088) 8. The assessee had submitted that the shares of M/s Sparsh BPO Services Pvt Ltd were sold at Rs.200 per share (i.e. the purchase cost) though the market price of the said shares as per Bombay Stock Exchange on the date of sale was only Rs.58 per share. We find that the long term capital loss incurred by the assessee was disallowed by the Ld.AO only on the ground that it was a colourable device as the loss is transferred in the hands of M/s Intelnet Global Services Pvt Ltd on subsequent merger / amalgamation. It is pertinent to note that the scheme of amalgamation had been duly approved by Hon'ble Bombay High Court wherein the treatment of vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the Act. In any case, the scheme of merger had already contemplated these transactions of loss on shares by including the same in the scheme and had also considered the loss incurred by the transferor company getting vested with the transferee company pursuant to the scheme of amalgamation. This scheme of amalgamation has been approved by the Hon'ble Bombay High Court vide its order dated 5/3/2013 with effective date of 7/7/2011. Now once the scheme of amalgamation has been approved by the Hon'ble High Court, all the assets and liabilities of the transferor company including the losses would get automatically vested with the transferee company. The same cannot be disturbed or disputed by the Ld.AO at the time of implementation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed business loss of Rs. 6,63,574, would belong to the amalgamated company pursuant to paragraph 10(iii) of the scheme of amalgamation which was approved by the High Court. Since the losses belonged to the amalgamated company, i. e... the. assessees, the provisions of section 72 and section 74 would come into play with respect to set off thereof against the respective incomes of the assessee. In view of this, the non-compliance, of section 72A as held bi/ the Commissioner (Appeals) did not hold any water." 9. Moreover, we further find that the Hon'ble Jurisdictional High Court in the case of Sadanand S Varde & Ors vs State of Maharashtra & Ors reported in 247 ITR 609 (Bom) had categorically held that order of the Company Court sanctioning ..... X X X X Extracts X X X X X X X X Extracts X X X X
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