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TMI Blog2025 (2) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, Bench "C", Kolkata (Tribunal) in ITA No. 2625/Kol/2018, for the assessment year 2015-16. 2. The revenue has raised the following substantial questions of law for consideration :- i) Whether on the facts and circumstances of the case the Learned Tribunal has correctly deleted the disallowance of depreciation of Rs. 6,24,73,357/- on goodwill accounted from the amalgamating company M/s. Ramuk Scan Investment Pvt. Ltd. ? ii) Whether the Learned Tribunal has correctly applied the law of the amalgamation when the full disclosure into assets of the amalgamating company was not made before the Hon'ble High Court, the alleged Goodwill of Rs. 37,91,42,049/- was not accounted in the swap ratio of shares in the amalgamating scheme which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer after examining the scheme of amalgamation and on the basis of the documents furnished by the assessee came to the conclusion that the claim of depreciation is not correct as the swap ratio of shares was not based on the balance sheet as dated 31.12.2014 rather than the balance sheet as at 1.1.2013, resulting in wrong calculation of swap ratio of shares, the assessee not taking the market value of the assets and liabilities while computing the goodwill etc. finally rejected the claim for depreciation of Rs. 6,24,73,357/- including other depreciation claims. Thus, the issue which fell for consideration before the learned Tribunal is whether the assessee is entitled to depreciation on goodwill arising from the excess o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt took into consideration the decision of the Hon'ble Supreme Court in Marshall Sons & Co. (India) Ltd. vs. ITO, (1997) 138 CTR (SC) 1, wherein the Hon'ble Supreme Court held that once the scheme had been sanctioned with effect from a particular date, it is binding on everyone including the statutory authorities. Identical issue was decided by this Court in the case of Commissioner of Income Tax, Kolkata-3, Kolkata vs. M/s. Purbanchal Power Company Limited, ITAT/70/2015, dated 15th July, 2022, wherein the decision of the High Court of Gujarat in Vodafone Essar Gujarat Ltd. vs. Department of Income Tax, (2013) 35 taxmann.com 397 (Gujarat) was taken note of which decision was affirmed by the Hon'ble Supreme Court as reported in Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thakor that in case the Scheme is sanctioned, it may result into tax avoidance on the part of the appellant, but it is required to be noted that even if the ultimate effect of the Scheme may result into some tax benefit or even if it is framed with an object of saving tax or it may result into tax avoidance, it cannot be said that the only object of the Scheme is 'tax avoidance'. Considering the various clauses of the Scheme, it is not possible for us to come to a conclusion that the Scheme is floated with the sole object of tax avoidance." 5. Thus, the law on the subject is clear and there can be no ambiguity on the said aspect and the revenue in an assessment proceeding cannot seek to reopen the matter. As pointed out earlier, the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded to the Income tax Department on 8th July, 2015 with a request to forward their comments/observations/objections, if any, on the proposed scheme of amalgamation within fifteen days but till the date of filing of the affidavit before the High Court, that is, on 26th August, 2015, no comments/observations/objections were received from the Income tax Department. That apart, we note that the share exchange ratio was very much part of the scheme as could be seen from paragraph 11.1 of the scheme of amalgamation which was presented for approval. 7. That apart, it is relevant to note that the Tribunal partly took note of the submissions made on behalf of the assessee for the assessment year 2013-14 which was the first year the claim for depre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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